Rule 7.Pleadings Allowed: Form of Motions

(1973)

Rule 7 is virtually identical to Federal Rule 7, although Rule 7(a) includes as a permissible pleading, a trustee's answer under oath if trustee process is used. Rule 7 reflects the belief that extensive and complex pleadings are not desirable as a vehicle for the narrowing of issues in a case and that this function can be better performed by discovery and the use of the pretrial conference. Except where there is a counterclaim, cross-claim or third-party complaint, the only pleadings allowed are the complaint and answer, although the court may order a reply to an answer. In federal practice such orders are rare, because of the availability of other devices, such as discovery, for narrowing the issues. See Keller-Dorian Colorfilm Corp. v. Eastman Kodak Co., 10 F.R.D. 39, 41 (S.D.N.Y.1950). Absent an order, a reply is not permissible. Where no reply to an answer is required, allegations in the answer are deemed denied or avoided. See Rule 8(d). Thus in the usual case, the only pleadings will be the complaint and the answer. Any deficiencies in the pleadings which presently are attacked by such devices as demurrers, pleas, answers in abatement, and the like will be raised by motion or answer.

The limitation of pleadings subsequent to the answer does not substantially alter Massachusetts practice.

Rule 7(a) provides also for an answer to a cross-claim; a third-party answer, if a thirty-party complaint is served; and a reply to a counterclaim denominated as such.

The italicized language relieves the plaintiff from deciding at his peril whether the defendant's pleading constitutes a counterclaim, since failure to reply to a properly denominated counterclaim has the effect of admitting its allegations. (See, however, Rule 6(b), which permits the Court in its discretion upon a showing of excusable neglect to provide relief from the consequences of failure to file a reply within the twenty-day period specified by Rule 12(a)(1)).

If an answer contains a counterclaim which is not so labeled the plaintiff is not required to reply. In fact, theoretically, he is not entitled to reply. However, under Rule 8(c), the Court on terms, if justice so requires, shall treat the pleading as having been so denominated and thus allow a reply. Where the defendant denominates as a counterclaim what is actually a defense the cautious lawyer will no doubt reply.

The plaintiff's reply to a properly designated counterclaim should only relate to matters in the counterclaim and should not traverse allegations of the answer which are not part of the counterclaim.

Under Rule 7(c), demurrers, pleas, and exceptions for insufficiency of a pleading are abolished. The functions of these various devices are served under the rules by either motion or answer. See Rule 12(b).