Rule 8.General Rules of Pleading

Rule 8 allows claims and defenses to be stated in general terms so that the rights of the client are not lost by poor drafting skills of counsel. Under Rule 8(a), “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief is sought.” See DynaSteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977 (Miss. 1992). A plaintiff must set forth direct or inferential fact allegations concerning all elements of a claim. See Penn. Nat’l Gaming, Inc. v. Ratliff, 954 So. 2d 427, 432 (Miss. 2005). Motions or pleadings seeking modification of child custody must include an allegation that a material change has occurred which adversely affects the child or children. It is not sufficient to allege that an adverse change will occur if the modification is not granted. See, e.g., McMurry v. Sadler, 846 So. 2d. 240, 244 (Miss. Ct. App. 2002). In cases involving the joinder of multiple plaintiffs, the complaint must contain the allegations identifying by name the defendant or defendants against whom each plaintiff asserts a claim, the alleged harm caused by specific defendants as to each plaintiff, and the location at which and time period during which the harm was caused. See 3M Co. v. Glass, 917 So. 2d 90, 92 (Miss. 2005);

Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493, 495 (Miss. 2004). Failure to provide this “core information” is a violation of Rules 8 and 11. Plaintiffs in such cases must also plead sufficient facts to support joinder. Glass, 917 So. 2d at 93; Mangialardi, 889 So. 2d at 495.

Rule 8(c)’s requirement that defendants plead affirmative defenses when answering is intended to give fair notice of such defenses to plaintiffs so that they may respond to such defenses. Just as Rule 8(a) requires only that the plaintiff give the defendant notice of the claims, Rule 8(c) requires only that the defendant give the plaintiff notice of the defense. “A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Kimball Glassco Residential Ctr., Inc. v. Shanks, 64 So. 3d 941, 945 (Miss. 2011) (citing MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 180 (Miss. 2006)).

The list of affirmative defenses in Rule 8(c) is not intended to be exhaustive. A defense is an affirmative defense if the defendant bears the burden of proof. See Natchez Elec. & Supply Co., Inc. v. Johnson, 968 So. 2d 358, 361 (Miss. 2007). “A matter is an ‘avoidance or affirmative defense’ only if it assumes the plaintiff proves everything he alleges and asserts, even so, the defendant wins. Conversely, if, in order to succeed in the litigation, the defendant depends upon the plaintiff failing to prove all or part of his claim, the matter is not an avoidance or an affirmative defense. A defendant does not plead affirmatively when he merely denies what the plaintiff has alleged.” Hertz Commercial Leasing Div. v. Morrison, 567 So. 2d 832, 835 (Miss. 1990).

Examples of some affirmative defenses or matters of avoidance that are not enumerated in Rule 8(c) but which have been recognized by the Supreme Court include: the failure of a foreign limited liability corporation transacting business in the state to register to do business as a prerequisite to maintaining an action in state court as required by Mississippi Code Annotated section 79-29-1007(1) (Supp. 2011) (see Loggers, L.L.C. v. 1 Up Technologies, L.L.C., 50 So. 3d 992, 993 (Miss. 2011)); immunity under the Mississippi State Tort Claims Act (see Price v. Clark, 21 So. 3d 509, 524 (Miss. 2009)); failure to comply with the requirement of a certificate of expert consultation in medical malpractice cases as required by Mississippi Code Annotated section 11-1-58 (Supp. 2011) (see Meadows v. Blake, 36 So. 3d 1225, 1232-33 (Miss. 2010)); plaintiff’s non-compliance with the 90-day notice requirement contained in Mississippi Code Annotated section 11-46-11(1) (Supp. 2011) (see Stuart v. University of Miss. Med. Ctr., 21 So. 3d 544, 549-50 (Miss. 2009)); the assertion of the right to arbitrate (see Ms. Credit Ctr., Inc. v Horton, 926 So. 2d 167, 179 (Miss. 2006)); apportionment of fault pursuant to Mississippi Code Annotated section 85-5-7 (Supp. 2011) (see Eckmann v. Moore, 876 So. 2d 975, 989 (Miss. 2004)); argument that a

contractual acceleration clause is an un-enforceable penalty (see Hertz Comm’l Leasing Div. v. Morrison, 567 So. 2d 832, 834 (Miss. 1990)); the failure of a foreign corporation transacting business in this state to obtain a certificate of authority as prerequisite to maintaining an action in this state as required by Mississippi Code Annotated section 79-4- 15.02 (Supp. 2011) (see Bailey v. Georgia Cotton Goods Co., 543 So. 2d 180, 182-83 (Miss. 1989)); election of remedies (see O’Briant v. Hull, 208 So. 2d 784, 785 (Miss. 1968)); adverse possession as a defense to neighboring landowner’s actions (see Charlot v. Henry, 45 So. 3d 1237, 1243-44 (Miss. Ct. App. 2010)); the defense of condonation in a divorce case (see Ashburn v. Ashburn, 970 So. 2d 204, 212-13 (Miss. Ct. App. 2007)).

A party may be denied leave to amend its answer to include an affirmative defense if that affirmative defense has been waived. See Hutzel v. City of Jackson, 33 So. 3d 1116, 1122 (Miss. 2010).