4 Exercise Four – Demurrers and Judgments on the Pleadings
I. SUBSTANTIVE LAW
The substantive law of defamation in the state of Dakota is discussed in Exercise Three, part III.B. Please reread those pages.
In reaction to the dictum in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974) [see Exercise Three, part III.B.2], the Supreme Court of Dakota recognized a defense of due care. This means that even should defendant Dour’s statement be found false and not privileged, defendant still prevails if he exercised due care in attempting to ascertain that the statement was true.
II. PROCEDURAL LAW
A. Burden of Pleading
In Dakota, plaintiff has the burden of pleading the elements of slander (publication, falsity, disparagement, and pecuniary damage/slander per se). Defendant has the burden of pleading the affirmative defenses of truth,[ii] privilege, and due care. When defendant raises the affirmative defense of qualified privilege, plaintiff has the burden of pleading malice to overcome the privilege.
To say that a party has the burden of pleading on a given issue means that the party must raise that issue in the pleadings, or the issue will be resolved against the party. Dakota follows the rule that ambiguities in the pleadings are to be resolved against the pleader.[iii]
B. Sequence of Code Pleadings and Motions
Under Dakota law, plaintiff commences the action by filing a complaint. Defendant may respond with a special demurrer (raising issues that do not go to the merits, such as lack of jurisdiction or improper joinder), with a general demurrer (challenging the legal sufficiency of the complaint, as discussed below), or with an answer. In the answer, defendant must raise any affirmative defenses or they will be waived. When defendant does not raise any affirmative defenses, the pleadings close with the answer. When defendant raises affirmative defenses, plaintiff is required to file a reply, denying or avoiding[iv] the averments of the affirmative defenses. This reply closes the pleadings.[v] Since the defendant is not permitted to respond to the reply, the allegations in the reply are taken as denied or avoided by the defendant.
After the pleadings have closed, either party may move for judgment on the pleadings.
C. The General Demurrer
Dakota’s general demurrer is a procedural device used by the defendant to challenge the legal sufficiency of the plaintiff’s complaint. Only issues of law may be decided; the demurrer is not a method of testing the facts. The usual maxim “law for the judge, facts for the jury” applies. The general demurrer is defendant’s way of saying to plaintiff, “Admitting for the moment that all of the facts alleged in your complaint are true, you are still not entitled to relief as a matter of law.” Put more colloquially, defendant is saying “Yeah, so what!”
The purpose of the general demurrer is to allow early dismissal of a complaint that is insufficient on its face. Suppose that the complaint alleges “The defendant stuck out his tongue. This caused me severe emotional distress. Therefore, I am entitled to damages.” Even if these facts were true, the plaintiff would not be entitled to relief. The sooner the case is dismissed, the better. The defendant should not be required to file an answer, undergo discovery, and prepare for trial without being able to get a determination about whether the plaintiff’s complaint is legally sufficient.
At common law, filing a general demurrer was a daring step, since defendant thereby made a binding concession that the facts alleged by the plaintiff were true. When the court decided the facts pleaded by plaintiff did support relief, defendant had lost. Under modern pleading systems, defendant no longer faces sudden death if the demurrer is not sustained. Defendant is still allowed to file an answer denying that the facts alleged in the complaint are true.
When the demurrer is sustained, the court will usually grant the plaintiff leave to amend the complaint to cure the defect(s) in the pleading, so a demurrer is particularly useful when defendant believes plaintiff has pleaded all of the facts that she could conceivably prove. Should plaintiff’s legal theory be tenuous, the demurrer allows both parties to obtain a ruling on the legal sufficiency of the cause of action[vi] without incurring the expense of trial. The general demurrer is thus functionally equivalent to the Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.
Dakota follows the traditional rule that a demurrer cannot be a “speaking motion,” that is, matters outside the challenged pleading can never be presented to the court for its consideration on a demurrer. A demurrer to a complaint examines only the face of the complaint. All of the facts asserted are taken to be true for purposes of deciding the legal sufficiency of the complaint.[vii]
D. The Motion for Judgment on the Pleadings
After the pleadings have closed, either party may make a motion for judgment on the pleadings. The motion may be used by the defendant as a sort of hang fire demurrer, or by the plaintiff to challenge the legal sufficiency of the defendant’s answer.
As with the demurrer, the motion for judgment on the pleadings cannot “speak.”[viii] The allegations of the party opposing the motion are taken as true; resolution of factual issues is reserved for trial. Nor can the movant rely upon an affirmative allegation in her pleading, unless it is admitted by the adversary. For example, suppose plaintiff sues defendant on a theory of invasion of privacy, alleging defendant used plaintiff’s photograph for advertising purposes without permission. If defendant admits using the photograph but raises an affirmative defense, plaintiff would be entitled to judgment on the pleadings when her complaint is legally sufficient and defendant’s affirmative defense is legally insufficient. If the defendant denied using the photograph, however, the plaintiff would be bound by that denial for purposes of the motion for judgment on the pleadings. Plaintiff could not introduce extrinsic evidence that the photograph had been used.
The motion for judgment on the pleadings “searches the pleadings.” When plaintiff makes a motion for judgment on the pleadings, she exposes herself to the possibility that her complaint will be dismissed. Before examining the sufficiency of the defendant’s answer, the court examines the sufficiency of the plaintiff’s complaint, and if the plaintiff’s complaint does not state a cause of action, it will be dismissed. A bad answer is good enough to withstand a bad complaint.
The general demurrer and the motion for judgment on the pleadings are not the only means for weeding out non meritorious cases before trial. The motion for summary judgment is a more effective device. Summary judgment is the subject of Exercise Eight.
III. PRELIMINARY QUESTIONS
Study the following pleadings [assume the year is the most recent] and answer the following questions before going to the computer to work through CALI CIV02: Demurrers and Judgments on the Pleadings. The computer will ask you the same questions, with the same numbers [note the numbers are nonconsecutive here]. The computer will also ask you additional questions that are not posed here.
PART ONE—DEMURRER
Assume Peter Schuler commenced his suit against David Dour in Dakota state court by filing a complaint containing the following allegations as its body:
COMPLAINT ONE
1. On May 10, 20__, in Room 215 of Old Main at Dakota College, defendant falsely stated “Peter (referring to plaintiff) is a heavy user of crack cocaine.”
2. As a result, plaintiff has been injured in his reputation and has suffered great pain and mental anguish, all to his damage in the sum of $100,000.
Defendant responded with a general demurrer.
Q–1. In this procedural posture, could the trial court properly decide whether plaintiff was a heavy user of crack?
Answer yes or no.
Q–3. In ruling on the demurrer, could the trial court properly decide whether the use of crack is a crime involving moral turpitude?
Answer yes or no.
Q–4. In ruling on the demurrer, could the trial court properly decide whether a disparaging statement has to be false to be actionable?
Answer yes or no.
Q–6. In ruling on the demurrer, can the trial court properly decide whether publication is an element of the tort of slander?
Answer yes or no.
Q–8. In ruling on the demurrer, could the trial court properly decide whether a conditional privilege applies to statements made by a college professor in a disciplinary hearing?
Answer yes or no.
Q–9. The trial court scheduled a hearing on the demurrer and requested briefs from the parties. Plaintiff’s brief argued that using crack is a serious crime involving moral turpitude, and therefore he did not need to plead pecuniary damage. Must the trial court decide that plaintiff’s position on this issue is wrong in order to sustain the demurrer?
Answer yes or no.
Please consider the issues that could be decided on demurrer had plaintiff instead filed the following complaint. The computer will ask you questions about it.
COMPLAINT TWO
1. On May 10, 20__, in Room 215 of Old Main at Dakota College, defendant falsely stated to Mary Trueblood and William Roberts: “Peter (referring to plaintiff) is a heavy user of crack cocaine.”
2. As a result of defendant’s false statement, plaintiff has suffered damage to his reputation and great pain and mental anguish, all to his damage in the sum of $100,000.
PART TWO—JUDGMENTS ON THE PLEADINGS
Assume plaintiff filed Complaint Two, reprinted immediately above.
Defendant responded with the following answer.
ANSWER
1. Now comes the defendant and denies each and every material allegation in plaintiff’s complaint except the allegations in paragraph 1 of plaintiff’s complaint.
2. Now comes the defendant and for a further defense avers that the statement made by the defendant was made in a hearing before the Disciplinary Board of Dakota College, when defendant, a Professor at Dakota College, was discussing the issue of whether plaintiff, a student, should be suspended from said college.
In response to defendant’s answer, plaintiff filed the following reply:
REPLY
1. Plaintiff admits the allegations in paragraph 2 of defendant’s answer.
2. Plaintiff further avers that defendant knew the statement “Peter is a heavy user of crack cocaine” was false at the time that he made it.
After the reply was filed, defendant moved for judgment on the pleadings.
Q–16. In ruling on defendant’s motion, may the trial court properly decide whether plaintiff is a user of crack?
Answer yes or no.
Q–17. In ruling on defendant’s motion, may the trial court properly decide whether using crack is a serious crime involving moral turpitude?
Answer yes or no.
Q–18. In ruling on defendant’s motion, may the trial court properly decide whether a statement by a college professor before a disciplinary board is absolutely privileged?
Answer yes or no.
Q–19. If the trial court determined that a statement of a professor before a disciplinary board was absolutely privileged, would defendant be entitled to judgment on the pleadings?
Answer yes or no.
Q–20. If the plaintiff had denied that the statement was made before the disciplinary board, would the defendant be entitled to judgment on the pleadings if such statements were absolutely privileged?
Answer yes or no.
Q–21. On the motion for judgment on the pleadings, may the trial court properly decide whether publication is an element of the tort of slander?
Answer yes or no.
Q–22. Suppose that the plaintiff alleged publication and the defendant admitted making the statement to plaintiff, denied publication, and raised the affirmative defense of due care. In a motion for judgment on the pleadings, could the trial court properly decide whether publication is an element of the tort of slander?Answer yes or no.
__________
You are now ready to go to the computer to do CALI CIV 02: Demurrers and Judgments on the Pleadings. The estimated completion time for this computer-assisted exercise is one hour; it can be done in more than one sitting.
[i]Perhaps the provision should have been retained, but the advisory committee concluded “[f]ormer Rule 7(c) is deleted because it has done its work. If a motion or pleading is described as a demurrer, plea, or exception for insufficiency, the court will treat the paper as if properly captioned.” The proper motion would be to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).(Return to text)
[ii]Truth, on which the defendant has the burden of pleading, and falsity, on which the plaintiff has the burden of pleading, are of course only two sides of the same coin. One of the peculiarities of the law of defamation/slander is that some jurisdictions have held that both the plaintiff and the defendant have the burden of pleading on the issue of truth/falsity. See 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1245 (2004). If the plaintiff fails to plead that the statement was false, then the complaint is legally insufficient. If the plaintiff does plead falsity, then the defendant must raise truth as an affirmative defense; a denial of the allegation of falsity in the complaint is insufficient. Should defendant fail to raise truth as an affirmative defense, then the defense will be waived unless the court later permits defendant to amend the answer.(Return to text)
[iii]Note that the code rule of resolving ambiguities against the pleader contrasts with practice in federal courts and rules states, where pleading ambiguities and irregularities are normally resolved in favor of the pleader. “Pleadings must be construed so as to do justice.” Fed. R. Civ. P. 8(e).(Return to text)
[iv]A party avoids the allegations of the opponent’s pleading by introducing new matter that will entitle the party to judgment even if the allegations of the opponent’s pleading are true. At common law, the plea was called confession and avoidance. For example, if a plaintiff pleaded that the defendant falsely called her a thief, and the defendant responded by admitting that the statement was made but alleging that it was made during a criminal trial, then the defendant would have confessed the allegations in the plaintiff’s complaint but avoided liability by raising the affirmative defense of absolute privilege. The modern day affirmative defense is the descendant of the common law confession and avoidance.(Return to text)
[v]Dakota’s code pleading system extends the pleadings a step beyond the federal rules, which close pleadings with the complaint and the answer except in certain specified situations, such as an answer to a counterclaim or when the court orders a reply to the answer. Fed. R. Civ. P. 7(a).(Return to text)
[vi]The codes require plaintiff to plead a “cause of action.” Because of procedural wrangling over the scope of a cause of action and the difficult niceties of pleading ultimate facts, the drafters of the federal rules discarded the concept of the cause of action in favor of the “claim.” Fed. R. Civ. P. 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” For discussion of cause of action and claim, see Exercise Three, part I.B to I.C.(Return to text)
[vii]Practice under the rules is the same, yet the rules provides an escape valve that allows the court to consider matters outside the face of the complaint:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d).(Return to text)
[viii]In rules practice also, a motion for judgment on the pleadings looks only to the faces of the complaint and the answer. The rules have an escape valve here also. As with the Rule 12(b)(6) motion, a court ruling on a motion for judgment on the pleadings may consider “matters outside the pleadings,” which automatically converts the motion into one for summary judgment. Fed. R. Civ. P. 12(d).(Return to text)
