THE SCRIVENER Answers Revisited, Part 2 by Scott Moïse

THE SCRIVENER Answers Revisited, Part 2 By Scott Moïse

Part 1 of this column appeared in the U.S. Supreme Court as authority response”); Am. Family Mut. Ins. Co. July issue and addressed initial ques- for allowing legal conclusions to be v. Beasley, No. 2:10-cv-2090-GMN- tions to consider before answering a pleaded in complaints. See, e.g., Lu- RJJ, 2012 WL 395707, at *3 (D. Nev. complaint, time for answering, and cas v. CD-COM Sys. Chi., Inc., No. 00 Feb. 6, 2012) (striking paragraph general rules. The following conclusion C 4575, 2000 WL 1644513, at *1 (N.D. in answer that denied the allega- will cover other principles in drafting Ill. Oct. 25, 2000) (citing Denton v. tions because they called for legal an answer. Hernandez, 504 U.S. 25, 31 (1992) and conclusions); Lane v. Page, 272 F.R.D. The following have been Neitzke v. Williams, 490 U.S. 319, 325 581, 585 (D.N.M. 2011) (holding that found to be deficient responses (1989)). Thus, his reasoning is that defendants must respond to “legal in answers: because plaintiffs have authority to conclusion[s]” in complaints in plead legal conclusions and de- order to avoid violating Rule 8(b)); • Refusing to answer because the fendants have no authority not to Farrell v. Pike, 342 F. Supp. 2d 433, complaint “states a legal conclu- answer them, an answer is man- 440–41 (M.D.N.C. 2004) (striking the sion” datory. He specifically addressed “legal conclusion” answer because Many defendants allege that the practice of refusing to answer it violated Rule 8(a)). the complaint “states a legal con- jurisdictional allegations as being Some courts, however, have clusion to which no response is “legal conclusions” and warned denied a motion to strike portions necessary.” Presumably, the basis defendants not to deny or refuse of an answer, stating that “defen- for believing that no response is to answer jurisdictional allegations dants’ responses could have noted necessary for a legal conclusion unless the defendant had good that some of the plaintiff’s alle- arises from Rule 8(d), which states grounds for denying jurisdiction. gations were legal conclusions to that “[a]verments in a pleading to See Baumann v. Bayer AG, No. 02 C which no response was required.” which no responsive pleading is 2351, 2002 WL 1263987, at *1 (N.D. Beker Indus. Corp. v. United States, required or permitted shall be tak- Ill. June 5, 2002). 585 F. Supp. 663, 667 n.12 (Ct. Int’l en as denied or avoided.” Rule 8(d), Judge Shadur is not shy about Trade 1984); see also United States however, likely refers to situations enforcing the rules of pleading. v. 45.43 Acres of Land Situate in Ada such as affirmative defenses, to He has struck several portions of Cnty., No. CV 08-463-S-CWD, 2009 which the plaintiff is not required deficient answers and, in egregious WL 1605127, at *6–7 (D. Idaho June to answer. cases, has struck pleadings in 4, 2009) (refusing to strike para- South Carolina courts have their entirety, with leave to file an graphs in answer that environmen- not addressed this issue, but other amendment. Additionally, he has tal statutes were legal conclusions courts—led by Judge Milton I. ordered the defendant’s lawyers not because the applicability of the Shadur of the U.S. District Court for to charge their client for the extra statutes was a question for judi- the Northern District of Illinois— work and expense for re-pleading cial review); see also Khepera-Bey v. have stricken this response in an- and required the lawyers to inform Santander Consumer USA, Inc., No. swers. Judge Shadur takes a strict, their client by letter about the WDQ-11-1269, 2012 WL 1965444, *5 no-nonsense approach to pleadings judge’s action (with a copy of the (D. Md. 2012) (holding that defen- and requires lawyers to adhere letter to be sent to the judge). See id. dant’s answer satisfied Rule 8(b) in precisely to the rules. In Jefferson v. The majority of other courts stating that “no response is re- Metropolitan Pier & Exposition Author- addressing this issue have fol- quired” to legal conclusions in com- ity, No. 92 C 6770, 1993 U.S. Dist. lowed suit. See, e.g., N. Ind. Metals plaint). Cf. Jackson v. Marion Cnty., LEXIS 10996, at *1 (N.D. Ill. Aug. 9, v. Iowa Express, Inc., No. 2:07-CV- 66 F.3d 151, 153 (7th Cir. 1995) (“[A] 1993), Judge Shadur challenged the 414-PRC, 2008 WL 2756330, at *4 plaintiff in a suit in federal court defense counsel to provide authori- (N.D. Ind. July 10, 2008) (holding need not plead facts; he can plead ty for the concept that no response that responding to an allegation conclusions.”); Blizzard v. Astrue, was necessary to a legal conclu- by stating it is a “legal conclusion” No. 4:10CV5, 2010 WL 4630253, at sion, stating that “[n]othing in the “flies in the face of the established *6 (E.D. Va. Sept. 22, 2010), report Rules grants a litigant the privilege doctrine that legal conclusions are and recommendation adopted sub of refusing to answer.” Id. In other a proper part of federal pleading, nom. Blizzard v. Comm’r of Soc. Sec., opinions, the judge has cited the to which Rule 8(b) also compels a No. 4:10cv5, 2010 WL 4627859 (E.D.

54 SC Lawyer Va. Nov. 8, 2010) (holding that alle- of the three alternatives that an admission that the agreements gations concerning the burden of are permitted by Rule 8(b) in re- were valid, which contradicted proof were “legal conclusions” and sponse to all allegations about plaintiffs’ position that the agree- that because the defendant only the contents of documents (or ments were valid and binding); needed to respond to “allegations,” statutes or regulations). Thompson v. Ret. Plan for Emps. of S.C. no response was needed). Johnson & Sons, Inc., No. 07-CV-1047, However, some courts have State Farm Mut. Auto. Ins. Co. v. Riley, No. 08-CV-0245, 2008 WL 5377712, allowed this response when the 199 F.R.D. 276, 279 (N.D. Ill. 2001); at *1 (E.D. Wis. Dec. 22, 2008) (re- defendants deny factual allegations see also Donnelly v. Frank Shirey quiring defendant to answer in one in addition to identifying legal con- Cadillac, Inc. No. 05C3520, 2005 of the three ways set out in Rule clusions. See, e.g., Guifu Li v. A Perfect WL 2445902, at *1 (N.D. Ill. Sept. 8); Cf. Miller v. Holzmann, 240 F.R.D. Franchise, Inc., No. 5:10-CV-01189- 29, 2005) (holding that a party 1, 4 (D.D.C. 2006) (“The tautological LHK, 2011 WL 2971046, at *3 (N.D. may not respond to allegations in ‘objection’ that the finder of fact Cal. July 21, 2011) (finding answer a complaint by asserting that a can read the document for itself to was sufficient when defendant document “speaks for itself”); Lane see if [a] quote is accurate is not a specifically denied factual allega- v. Page, 272 F.R.D. 581, 585 (D.N.M. legitimate objection but an evasion tions of each paragraph in addition 2011) (holding that averring a of responsibility to either admit or to stating that these were legal document “speaks for itself” does deny a request for admission.”). conclusions to which no answer not meet Rule 8(b)’s requirements); However, answering that a was required); McBurney v. Lowe’s Charleston v. Salon Secrets Day Spa, document “speaks for itself” may Home Ctrs., LLC, No. 1:13-cv-00540- Inc., No. 08-5889, 2009 WL 1795529, be made clear if contained within ELJ-CWD, 2014 WL 2993087, at *4 (D. at *1 (E.D. Pa. June 24, 2009) (strik- the context of an enlarged, clear, Idaho July 2, 2014). ing paragraphs in answer stating coherent response. See McGrath v. Although South Carolina courts that “[t]he Manual is a document Godshalk, No. 2:07 CV 34, 2007 WL have not addressed this issue, the which speaks for itself”); Armenian 2746865, at *12 (N.D. Ind. Sept. 18, safer path to follow would be to Assembly of Am., Inc. v. Cafesjian, 597 2007) (holding that a response that outright admit or deny the legal F. Supp. 2d 128, 136 (D.D.C. 2009) a document “speaks for itself” is conclusions. Failure to outright (stating that plaintiffs’ responses in sufficient when used as part of a deny allegations of jurisdiction, for an answer that agreements “speak larger, clearer explanation of the example, could be critical if the for themselves” did not constitute document). defendant wants to challenge that issue, since failure to include that defense in the answer constitutes a waiver. See Fed. R. Civ. P. 12(h); S.C. R. Civ. P. 12(h).

• Stating that a document “speaks for itself” Stating that a document “speaks for itself” may be deficient under Rule 8(b). Judge Shadur has also excoriated the use of this tactic:

Another unacceptable device, used by lawyers who would pre- fer not to admit something that is alleged about a document in a complaint (or who may per- haps be too lazy to craft an appropriate response to such an allegation) is to say instead that the document “speaks for itself.” This Court has been attempting to listen to such written materials for years (in the forlorn hope that one will indeed give voice)—but until some such writing does break its silence, this Court will continue to require pleaders to employ one

September 2017 55 • Demanding “strict proof” of an law had the effect of an admission. the car, that fact was admitted. Id. allegation Stevens & Lee, P.C. v. Cresswell, No. at 281, 437 S.E.2d at 557. Demanding “strict proof” of 1832 MDA 2015, 2016 WL 6441304, In another case, the South an allegation is a “meaningless at *2 (Pa. Super. Ct. Nov. 1, 2016). Carolina Court of Appeals held that demand” and “a concept that has the defendant’s letter to plaintiff’s no place” in pleading. See Howe v. (b) fairly meet the substance lawyer apologizing for the accident, Zurich Ins. Co., No. 99 C 4960, 1999 of the claims denied without otherwise responding to U.S. Dist. LEXIS 13259, at *2 (N.D. Ill. Answers must either admit the complaint, did not “fairly meet Aug 17, 1999). or deny claims in the complaint, the substance of the averments de- In some answers, this response and they must not simply “denied.” Hill v. Dotts, 345 S.C. 304, 308, is coupled with a denial. The court mand proof” of the allegations, See 547 S.E.2d 894, 896 (Ct. App. 2001). in Sharifi v. Stellar Recovery, Inc., No. 5 Charles A. Wright & Arthur R. Accordingly, default was appropri- 15 C 10587, 2016 WL 246134, at *1 Miller, Federal Practice and Procedure § ate. Id. Compare Frank Ulmer Lumber (N.D. Ill. Jan. 20, 2016), struck this 1264 at 398 (2d ed. 1990). In Motors Co. v. Patterson, 272 S.C. 208, 211, portion of an answer because the Insurance Corp. v. State ex rel. Depart- 250 S.E.2d 121, 123 (1978) (holding defendants’ “continuation with the ment of Highways & Public Transpor- that defendant’s letter to plaintiff’s statement ‘and, therefore, denies tation, 313 S.C. 279, 281, 437 S.E.2d lawyer was enough to keep him out same’ is unacceptable, for it is of 555, 557 (Ct. App. 1993), the court of default when letter expressly de- course oxymoronic for a party to held that because a defendant nied fault and gave specific reasons assert (presumably in good faith) failed to fairly meet the substance why he was not liable). that it lacks even enough informa- of a complaint’s claim, that claim Additionally, some courts have tion to form a belief as to the truth was deemed admitted. The com- held that simply denying an aver- of an allegation (as Rule 8(b)(5) plaint alleged, among other things, ment in a complaint, without sup- requires), then proceed to deny it.” that the stolen body of a car was plying additional material informa- Id. (emphasis in original). incorporated into a vehicle sold tion about the claim, did not “fairly One court held that stating by two defendants. Id. at 280, 437 meet the substance of the aver- that a “document speaks for itself” S.E.2d at 556. The defendants de- ments denied.” See, e.g., Shillman v. and also “denied and strict proof nied “any wrongdoing,” but because United States, No. 99-3215, 2000 U.S. demanded” constituted a “general they did not directly deny that App. LEXIS 15800, at *12–14 (6th Cir. denial,” which under Pennsylvania stolen body was incorporated into June 29, 2000) (holding that defen-

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A Charleston County jury has slapped John Wieland Homes and Neighborhoods with a $7.2 million verdict in a lawsuit that claimed 105 townhomes built by the company suffered from faulty construction and inferior craftsmanship. The jury returned the verdict on Jan. 30, following a six-day trial. John Hayes of the Hayes Law Firm in Charleston, who repre- sented the plaintiffs in the case, said his clients were “pleased the jury recognized that big mis- takes were made” in the development of the 105- unit Waverly at Hamlin John Plantation community Hayes in Mount Pleasant. “It’s not easy to sue a large company,” Hayes said. “But the jury recognized that when the companies won’t accept responsibility, you go to the court system to ensure homes built in Charleston are built right before they’re sold to the public.” The plaintiffs’ legal team also included Keith McCarty and Mary-Margaret No- This annual compilation recaps big settlements from please let us know. We will add that information to the on- land, both of the Hayes Law Firm. across the state from the past year. Our criteria for line version of the survey so it can be as complete at possible. The community’s homeowners’ associa- making the list are simple: And during the coming year, we would greatly ap- tion sued John Wieland Homes in 2013, ■ The settlement must be for at least $1 million. preciate hearing about all your settlements, not just the claiming that shoddy construction re- ■ The settlement was reached in calendar year 2016. ones that will make next year’s list of large settlements. sulted in expensive repairs that shouldn’t — Paul Fletcher, Editor-in-Chief ■ The settlement involved a dispute with a strong have been necessary. A separate class ac- South Carolina component. tion lawsuit filed on behalf of individual homeowners against the Atlanta-based homebuilder alleged the damage and sub- sequent repairs resulted in loss of use. The lawsuits alleged the townhomes Do-over denied for allegedly bad lawyering were sold to the general public despite nu- merous building code violations and de- ligence and unfair and deceptive The Bankses subsequently became fects in roofing, siding, structural beams ■ HILLIPP BANTZ trade practices and gave the cou- defendants in a lawsuit after they and window installation, as well as rot- [email protected] ple’s construction experts the boot. refused to pay Belfor the remaining ting porch railings. The Bankses later alleged that $161,593 on their bill. According to court records, John A federal judge in Charleston has Collins kept them in the dark about They hired local attorney David Wieland Homes built and sold townhomes turned away a couple seeking a do- the summary judgment order and A. Collins — who was suspended for in the between 2005 and 2009.The plain- over because their now-suspended at- only revealed that he was in profes- undisclosed reasons in late July 2016. tiffs alleged that as the community’s de- torney allegedly neglected their case. sional trouble several days after he The state Supreme Court has not pub- veloper and builder, along with its role as U.S. District Judge David Nor- was suspended. They also argued lished an order revealing the reason seller of the units, John Wieland Homes ton’s Jan. 26 order, which cites that Collins had misled them about for Collins’ suspension and attempts to was responsible for the damage. “Hamlet,” is the latest in a series of the strength of their counterclaims, speak with him were unsuccessful. The company responded by saying the unfortunate events to befall James which he reportedly described as Before his law license was put on subcontractors it hired were ultimately and Rebecca Banks. “kick a$$.” They filed a motion ask- ice, Collins was hit with a $2,500 responsible for the quality of the construc- First, a blaze left them with a ing Norton to set aside the judgment sanction for failing to participate in tion. John Wieland Homes countersued charred home in Summerville. Then and allow them to submit their ex- discovery in the Bankses’ case. Also more than a dozen subcontractors it hired Belfor USA, an emergency disaster pert opinions and pursue discovery. Page 6 ► during that time, Norton tossed the See Construction recovery company, allegedly botched See Denied Page 6 ► Bankses’ counterclaims for neg- the nearly $340,000 restoration job.

IMPORTANT OPINIONS Insurance Bankruptcy Administrative Two-Bike Collision Checking-Account Deposits No Privacy Act Claims Is One Accident Were Not ‘Transfers’ for Data Breaches When two motorcycles collided with the same A debtor’s deposit of funds into his own Data breaches at a VA Medical Center do not truck in quick succession, there was only one unrestricted checking account is not a“transfer” give standing to patient-veterans to sue VA offi- “accident.”Travelers Home & Marine Insurance under the Bankruptcy Code. Ivey v. First Citizens cials based on an increased risk of future identity Co. v. Grainger (Lawyers Weekly No. 002-038-17, Bank & Trust Co. (Lawyers Weekly No. 001-031- theft.Beck v. McDonald (Lawyers Weekly No. 5 pp.) Page 19 17, 12 pp.) Page 16 001-029-17, 26 pp.) Page 15

56 SC Lawyer dant’s failure to point out that the er’s knowledge. Id. § 1279. defenses. 5 Charles Alan Wright, plaintiff had sued the wrong corpo- The Fourth Circuit criticized et al., Federal Practice & Proce- ration was an “intentional litigation the allegations in a plaintiff’s civil dure Civ. § 1274 (3d ed. 1998 & Apr. tactic” and estopping parties from rights complaint for use of “upon 2017 Supp.); Monster Daddy LLC v. asserting defenses that statute of information and belief.” In Harman Monster Cable Prods., Inc., No. 6:10- limitations had run against un- v. Unisys Corp., 356 F. App’x 638, 640 1170-HMH, 2010 WL 4853661, at *8 named party and that the named (4th Cir. 2009), the plaintiff’s com- (D.S.C. Nov. 23, 2010) (“The court is party was the wrong party); Ziel- plaint told “a story about [the plain- persuaded that the pleading stan- inski v. Phila. Piers Inc., 139 F. Supp. tiff’s] repeated challenges to man- dard established in Twombly and 408, 413 (E.D. Pa. 1956) (estopping agement’s actions and business Iqbal applies to affirmative defens- defendant from denying it was decisions and summary assume[d] es and adopts the majority view. the tortfeasor’s employer because that with each challenge, ‘upon Applying the plausibility standard answer did not make it clear it was information and belief,’ [plaintiff’s to Monster Cable’s affirmative denying agency). employer] believed that a younger, defenses, the court finds that they (c) when denying only a part African American or male employ- are insufficiently pleaded.”). How- of, or qualifying a claim, specify ee would not have challenged their ever, even in courts that find that what is true and material and actions …” The court found such Twombly and Iqbal do not apply to deny the rest “conclusory allegations … insuffi- affirmative defenses, bare-bones A complaint may allege that cient to defeat a motion to dismiss.” affirmative defenses do not meet “Defendant is a South Carolina Id. at 640–41. the requirements of Rule 8(b). See, corporation with its headquarters South Carolina state courts e.g., Sedgewick Homes, LLC v. Stillwa- located at 3275 Black Swamp Road, have not addressed this issue, but ter Homes, Inc., No. 5:16-CV-00049- Johns Island, South Carolina.” The because this is a fact-pleading RLV-DCK, 2016 WL 4499313, at *2 defendant, in fact, is a South Caro- state, the rules require the pleader (W.D.N.C. Aug. 25, 2016) (holding lina corporation, but is not located to state facts upon which his belief that heightened pleading standards at the address in the complaint. is based. Some federal courts, for do not apply to affirmative defens- The defendant may be tempted example, require that specific facts es, but also stating that “a defense just to deny the entire paragraph, accompany allegations of fraud must be more than a mere ‘bare- based on the wrong address, but stated “upon information and bones conclusory allegation which the Rule requires it to admit what belief.” See, e.g., U.S. ex rel. Roberts v. simply names a legal theory but is correct and deny the rest. Lutheran Hosp., No. 1:97-cv-174, 1998 does not indicate how the theory is (d) general denials U.S. Dist. LEXIS 15791, at *20 (N.D. connected to the case at hand.’”). Rule 8(b) allows a general deni- Ind. Apr. 17, 1998) (holding that The enumerated defenses al—a blanket denial of every claim the plaintiff may plead fraud upon are accord and satisfaction, ar- in the complaint—only when de- information and belief but he must bitration and award, assumption nying every single claim, including include “a statement of the facts of risk, condonation (state only), jurisdictional grounds. Both federal upon which the belief is founded.”). contributory negligence, discharge and state rules specify that general in bankruptcy (state only), duress, denials are subject to the obliga- 4. WRITING THE AFFIRMATIVE estoppel (federal only), failure of tions of Rule 11, which means that DEFENSES consideration (federal only), fraud, the lawyer must be very careful The defendant must plead all illegality, injury by fellow servant, before making a general denial be- affirmative defenses in his answer, laches, license, misrepresentation cause only rarely will every allega- and they should be stated sepa- (state only), mistake (state only), tion in a complaint be incorrect. rately. See Fed. R. Civ. P. 8(c), 10(b); payment, plene administravit or (e) pleading “upon information S.C. Civ. P. 8(c), 10(b). The purpose of administration of the estate is and belief” pleading an affirmative defense is closed (state only), recrimination The Rules do not expressly call to provide the opposing party with (state only), release, res judicata, for pleading on information and fair notice. See Palmetto Pharm. LLC v. statute of frauds, statute of limita- belief, but federal courts have held AstraZeneca Pharm. LP, No. 2:11-cv- tions, waiver, and any other matter that it is permissible. See 5 Charles 00807-SB-JDA, 2012 WL 6025756, constituting an avoidance or affir- Alan Wright & Arthur B. Miller, Fed- at *7 (D.S.C. Nov. 6, 2012), report and mative defense. Fed. R. Civ. P. 8(c); eral Practice and Procedure § 1224 (2d recommendation adopted, No. 2:11-cv- S.C. R. Civ. P. 8(c). ed. 1990). This form is appropriate 00807, 2012 WL 6041642 (D.S.C. Dec. Failure to plead the affirmative when the allegations are not within 4, 2012). defense may waive it. See Ga. Pac. the pleader’s knowledge, but he Federal courts disagree whether Consumer Prod., LP v. Von Drehle Corp., has enough information to justify the pleading standard articulated 710 F.3d 527, 533 (4th Cir. 2013) his claim or defense. Id. Pleading in Bell Atlantic Corporation v. Twombly, (holding that defendant had waived “upon information and belief” is 550 U.S. 544 (2007), and Ashcroft v. affirmative defenses of claim and not appropriate if the matter is of Iqbal, 556 U.S. 662 (2009), extends issue preclusion by waiting too public record or within the plead- to the pleading of affirmative long to assert them); Howard v. S.C.

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58 SC Lawyer Dep’t of Highways, 343 S.C. 149, 154, fendant had not pleaded and thus because the party had requested 538 S.E.2d 291, 294 (Ct. App. 2000). waived affirmative defense that “such other and further relief as If the failure to plead the affirma- contractor was barred from bring- the Court may deem just and prop- tive defense does not cause unfair ing mechanic’s lien because he was er” and had presented testimony surprise, however, many courts not licensed as a contractor); Jones as to the particular relief). If the allow assertion of defenses despite v. Lott, 387 S.C. 339, 347, 692 S.E.2d defendant is seeking affirmative a technical failure to comply with 900, 904 (2010) (holding that immu- relief—such as in a counterclaim or the pleading requirements if the nity is an affirmative defense that cross-claim—that relief should be defense is timely raised to the trial must pleaded and can be waived); requested in the prayer, too. court. See, e.g., Plyler v. Burns, 373 Plyler, 373 S.C. at 648, 647 S.E.2d S.C. 637, 648, 647 S.E.2d 188, 194 at 194 (finding that common law 6. ANSWERING A PARTY’S AFFIR- (2007) (affirming an order of dis- judicial immunity is an affirmative MATIVE DEFENSES missal even though the affirmative defense); Spence v. Spence, 368 S.C. An affirmative defense is not defense had not been pleaded or 106, 123–24, 628 S.E.2d 869, 878 like a counterclaim or crossclaim, set forth in the motion, but had (2006) (holding that the defense of which must be answered. South been included in the memorandum “bona fide purchaser for value” in Carolina Rule 8(c), however, specif- in support of the motion); see also a real estate transaction must be ically allows parties to respond to Brinkley v. Harbour Recreation Club, pleaded as affirmative defense); Oy- an affirmative defense if they want 180 F.3d 598, 612 (4th Cir. 1999), ab- ler v. Oyler, 293 S.C. 4, 6-7, 358 S.E.2d to respond. rogated on other grounds by Desert Pal- 170, 171 (Ct. App. 1987) (holding ace, Inc. v. Costa, 539 U.S. 90 (2003). that adultery must be pleaded as 7. WRITING THE SIGNATURE An affirmative defense “condi- an affirmative defense, although SECTION tionally admits the allegations of a not listed as an affirmative defense As with the complaint, the an- complaint but asserts new matter in Rule 8(c), or is otherwise waived). swer ends with a signature section to bar the action.” Sierra v. Skelton, The lesson here is that if you are that identifies the attorneys or 307 S.C. 217, 223, 414 S.E.2d 169, in doubt as to whether a defense defendant, signer’s address, tele- 173 (Ct. App. 1991). It assumes all is “affirmative,” then plead it. As a phone number, and date of signing. elements of the plaintiff’s case have word of caution, however, some law- In signing a document submitted to been established. O’Neal v. Caroli- yers disagree with this philosophy federal courts, the signer certifies na Farm Supply, 279 S.C. 490, 494, to an extent. They believe that it is that to the best of his knowledge, 309 S.E.2d 776, 779 (Ct. App. 1983). not necessary to plead an affirma- information, and belief, formed Therefore, the burden of proof tive defense that simply negates an after an inquiry reasonable under shifts to the defendant to show he element of also the plaintiff’s claim. the circumstances: (1) it is not pre- is not liable. Id. If the defendant The reasoning behind that argu- sented for improper purpose, such only pleads a special matter that ment is that the plaintiff has the as harassment, delay, or expense; denies an element of the plaintiff’s burden of proof and an affirmative (2) the contentions in the document claim, the defense is not affirma- defense needlessly shifts the burden are warranted by law or a serious tive, and the plaintiff retains the to the defendant. argument to change the law; (3) the burden of proof. Id. contentions have, or are likely to Beyond the affirmative defenses 5. PRAYER AND ANSWERING THE have, evidentiary support; and, (4) enumerated in Rule 8, courts have PRAYER denials of factual contentions are found that other defenses “consti- A defendant is not required to warranted by the evidence or when tuted an avoidance or affirmative respond to the prayer of a com- specifically identified, are reason- defense” and could be waived by plaint. See Pure Bioscience v. Ross Sys., ably based on a lack of information not including them in the answer: No. 07-CV-1117 W(WMC), 2008 WL or belief. Fed. R. Civ. P. 11(a), (b). The 938956, at *3 (S.D. Cal. Apr. 7, 2008); South Carolina rule is substantially qualified privilege, lack of Drug Emporium, Inc. v. Peaks, 488 the same as the federal rule, but it contractor’s license, contract S.E.2d 500, 506 (Ga. Ct. App. 1997). specifically states that the signer is unenforceable as a penalty, The defendant, however, must has read the document and that it defective materials, or defenses have his own prayer, asking for has good grounds to support it and to the statutorily created claim, whatever relief he wants. Usually, is not interposed for delay. S.C. R. the failure to exhaust adminis- he asks to dismiss the complaint Civ. P. 11(a). trative remedies, and sovereign with prejudice and be awarded immunity. attorneys’ fees and costs. Include 8. PRACTICAL ADVICE FOR AN- a request in your prayer for “such SWERING THE COMPLAINT See James F. Flanagan, South Caro- other relief as the court may deem Stephanie wanted to make sure lina Civil Procedure 64 (3d ed. 2010); fit and proper.”Smith v. Smith, 386 that she denied every allegation see also Earthscapes Unlimited, Inc. v. S.C. 251, 263-64, 687 S.E.2d 720, 726 that she did not intend to admit. Ulbrich, 390 S.C. 609, 616, 703 S.E.2d (Ct. App. 2009) (allowing relief not She was uneasy that she might 221, 225 (2010) (holding that de- specifically requested in the prayer accidentally miss an allegation

September 2017 59 she needed to deny, and her career Second, of what are you with- would be in the cellar before her out information knowledge suf- first month was over. Her manag- ficient to form a belief as to the ing partner had advice on how to truth? ensure that all allegations were 1. How many times Jones’s car col- addressed. Her trick was to use lided into the rear of the Plain- colored highlighters: yellow for tiff’s car; admitting, green for denying, and 2. Whether Smith had just left the pink for alleging that she was with- Art Bar; and, out information or knowledge. She 3. Whether Smith was in an intox- went through every word in the icated state at the time of the complaint and highlighted it. accident. The next step was drafting the Therefore, the final answer to answer so that each paragraph cor- paragraph 14 will state as follows: responded to the same number in Defendant Jones admits the allega- the complaint, as discussed above. tions in Paragraph 14 to the extent Finally, the responses for each they allege that Jones was driving paragraph were handled in this on Huger Street in Columbia, S.C. order: on January 4, 2016. Jones further 1. Admit what is true. You may admits that Defendant Smith’s admit all allegations in the para- car then collided with the rear of graph. Jones’s car and pushed Jones’s car 2. Next, if you are without informa- into Plaintiff’s car. Jones is without tion or belief as to any portion of sufficient information and belief the paragraph, state specifically sufficient to form a belief as to the what those allegations are. Of truth of allegations that Defendant course, if you are without infor- Smith had just left the Art Bar and mation as to the whole para- was intoxicated at the time of the graph, you may state that for the accident. Jones denies the remain- entire paragraph. ing allegations of Paragraph 14. 3. Finally, deny the remaining alle- This model will not work for gations of the complaint. every situation, but it works for For example, in a wreck case most. This method is not always involving three cars, paragraph 4 in the easiest way to answer, but it is a Plaintiff’s complaint may allege the best because saving the denials the following: to the end ensures that you have 4. Defendant Jones was negligent- not inadvertently admitted any- ly driving 60 mph down Huger thing that you forgot to deny. Street in Columbia, S.C. on Janu- ary 4, 2016, when his car collided CONCLUSION with the rear of Plaintiff’s car. On her first few days of work, Defendant Smith, who had just Stephanie learned some important left the Art Bar in an intoxicated lessons about answering com- state, then collided with the rear plaints. Working for a defense of Jones’s car, pushing Jones’s firm meant that she would draft car into the Plaintiff’s car for a hundreds of answers during her second time. career. The basic principles in writing answers will remain the You represent Jones. First, what same: (1) read the rules thorough- can you admit? The allegations you ly; (2) research the law and facts can admit in paragraph 4 are the thoroughly; (3) carefully review the following: complaint and decide—for every 1. Jones was driving on Huger allegation—whether to admit, deny, Street in Columbia on January 4, or move to dismiss; and, (4) be sure 2016, when his automobile col- you respond within the deadlines. lided with the rear of the Plain- tiff’s car. A sample answer to a state court com- 2. Smith’s car then collided with the plaint can be found online at rear of Jones’s car, which pushed www.scbar.org/sclawyer. Jones’s car into Plaintiff’s car.

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