Rule 8.General rules of pleading

Reporter’s Notes—2012 Amendment: The list of affirmative defenses in Rule 8(c) is amended by the deletion of “discharge in bankruptcy” for consistency with the December 2010 amendment of Federal Rule 8(c). The federal amendment deleted the phrase because under the federal Bankruptcy Code, 11 U.S.C. § 524(a)(1), (2), a discharge is not strictly speaking an affirmative defense. It voids a judgment to the extent of the debtor’s personal liability and operates as an injunction against effort to collect or otherwise affect a discharged debt. Moreover, 11 U.S.C. § 523(a) excepts several categories of debt from discharge; whether a debt is excepted must be determined on a case-by-case basis. See Advisory Committee’s Note to December 2010 amendment of F.R.C.P. 8(c)(1). The amendment also replaces an inadvertently used semicolon with a comma.

Reporter’s Notes: This rule is almost identical to Federal Rule 8, much of which had previously been adopted by statute in Vermont. The pleading standards set out in the rule are one of the essential elements of the simplified practice embodied in the rules. Rule 8(a) is basically similar to 12 V.S.A. § 1021(1) (now superseded) and former Chancery Rules 3, 6. The new rule, which applies to all affirmative pleadings, omits the requirement of the former statute that “the facts relied upon” be pleaded, requiring instead “a short and plain statement of the claim showing that the pleader is entitled to relief,” language closer to that of former Chancery Rule 3. The new language emphasizes that the rules do not require a specific and detailed statement of the facts which constitute a cause of action, but simply a statement clear enough “to give the defendant fair notice of what the plaintiff’s claim is and the grounds on which it rests.” Conley v. Gibson, 355 U.S. 41 (1957). Rule 8(b) is similar in effect to 12 V.S.A. § 1021(2) (now superseded), and former Chancery Rule 21, except that the new rule provides specifically for the form of denials and makes the use of a general denial expressly subject to the good-faith obligations of Rule 11. The latter provision changes the traditional Vermont practice of permitting the general denial as of right. See Fry v. Cook, 2 Aik. 342 (1826). In view of this change, pending legislation (1971-H. 326, § 226) would repeal 12 V.S.A. § 1074, limiting the effect of the general denial in an action on an insurance policy, as no longer necessary. Rule 8(c) is virtually identical to 12 V.S.A. § 1024 (now superseded), which was drawn from the comparable federal rule. The rule carries forward the language of the former Vermont statute that the pleader shall not only plead but “establish” an affirmative defense. The Maine Court has held that Maine Rule 8(c) imposes the burden of proof as well as of pleading even without such specific language and that this is a legitimate exercise of the rulemaking power. See Parker v. Hohman, 250 A.2d 698 (Me. 1969); Field, McKusick, & Wroth, Maine Civil Practice § 8.7 (2d ed. 1970). The requirement that defendant affirmatively plead and prove contributory negligence is not inconsistent with the comparative negligence act, 12 V.S.A. § 1036, added by Act No. 234 of 1969, effective July 1, 1970. Unless defendant pleads that plaintiff’s negligence contributed to the injury, defendant will not be able to take advantage of the statutory provisions for diminution of the recovery in proportion to plaintiff’s negligence or complete bar to recovery where plaintiff’s negligence is greater than defendant’s. The final sentence of the rule, pertaining to mistakenly designated defenses and counterclaims, was not included in the former statute, because there was no general counterclaim procedure at the time of enactment. Rule 8(d), providing that a failure to deny an allegation amounts to an admission thereof, carries forward previous Vermont practice. See Rowell v. Town of Tunbridge, 118 Vt. 23, 98 A.2d 72 (1953); former Chancery Rule 21.2. Note that averments as to the amount of damage are expressly excepted from the rule. Rule 8(e)(1) is an important statement of the guidelines for both drafting and interpretation of pleadings. See also Rule 8(f). Rule 8(e)(2) is virtually identical to 12 V.S.A. § 1025 (now superseded), which was based on Federal Rule 8(e)(2). The rule differs from the statute by permitting statement of legal and equitable claims together, in light of the merger of law and equity effected by the rules, and by including a specific reference to the good faith obligations of Rule 11. The provision of Rule 8(e)(2) for statement of separate defenses even if inconsistent is more flexible than prior chancery practice, which prohibited simultaneous demurrer and answer to the same parts of the bill. See former Chancery Rules 14, 15; Waterman v. Moody, 92 Vt. 218, 103 A. 325 (1917). Rule 8(g) was taken from Maine Rule 8(g), which was in turn based on McKinney’s N.Y.C.P.L.R. § 3031. The procedure has been used in Maine for purely formal proceedings, such as actions for the dissolution of a corporation. See 11 V.S.A. §§ 511-516. For commentary, see 7B McKinney’s Consol. Laws of N.Y. 217-222 (1970). There is no comparable federal rule.