1. Development of Code Pleading
The first great reform of pleading was the code system. The state of New York in 1848 adopted a code of civil procedure based on the work of a committee chaired by David Dudley Field. This Field code was intended and designed to simplify pleading and remove many of the technicalities from civil procedure. To that end, the Field code abolished the common law writs in favor of one form of action to be known as a “civil action,” merged the systems of law and equity, simplified pleading and procedure, and allowed broad joinder of claims and parties. See generally Jack H. Friedenthal, Mary Kay Kane & Arthur R. Miller, Civil Procedure § 5.1 (4th ed.
2005). The primary method by which the Field code accomplished this feat was through its requirement that a party plead only “a
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plain and concise statement of the facts constituting each cause of action (defense or counterclaim) without unnecessary repetition.” The Field code became a popular model for procedural reform. States over the ensuing years adopted their own codes of civil procedure based on the New York model. By the time of the promulgation of the Federal Rules of Civil Procedure in 1938, a substantial majority of states were code states.
2. Problems with Code Pleading
The codes accomplished the primary goals of simplifying pleading and removing technicalities and traps for the unwary. Problems remained. First, a code by definition was a statute; this made revisions and adjustments difficult because the legislature had to act. Second, the codes still required the pleadings to do the heavy pre-trial lifting of giving notice, weeding out groundless claims, revealing the facts, and narrowing the issues. Third, the most difficult problems grew out of the greatest reform of the codes: the centerpiece of the codes was the seemingly-simple requirement that a plaintiff need plead only “the facts constituting each cause of action.” Both “facts” and “cause of action” soon became litigation- generating centers of controversy.
a. Pleading ultimate facts
From the first Field code in New York through all of the code states, the codes required the plaintiff to plead ultimate facts–as contrasted with conclusions of law or evidentiary facts. On the one hand, pleading conclusions of law was deficient. A plaintiff who pleaded only that defendants “trespassed,” “assaulted” her, and caused her “to be confined” gave notice to the opponent and the court of theories of trespass, assault, and false imprisonment, but the complaint did nothing to reveal the facts, narrow the issues, or weed out baseless claims. See, e.g., Gillespie v. Goodyear Serv. Stores, 258 N.C. 487, 129 S.E.2d 762 (1963). On the other hand, pleading evidentiary facts was deficient. A plaintiff who merely recited the evidence of a real estate transaction failed to plead the ultimate fact of the right of possession. See, e.g., McCaughy v. Schuette, 117 Cal. 223, 48 P.2d 1088 (1897). This could result in prolixity, and
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ambiguity of inference; for example, if plaintiff pleaded a decedent delivered $5000 to defendant, the inference of whether it was to be a loan or a gift was not clear.
A complaint that pleaded conclusions of law could be challenged. A complaint that pleaded only evidentiary facts could be challenged. Since they could be challenged, they often were challenged, especially because an “ultimate” fact was difficult to identify. Consider this small hypothetical. Plaintiff wishes to sue for slander because at a student government meeting defendant announced that plaintiff stole books from his library carrel. How should the key allegation read? What is the ultimate fact? Here are three candidates:
Defendant slandered plaintiff.
Defendant said plaintiff stole books from him.
Defendant imputed dishonesty to plaintiff.
The first allegation is insufficient as it is a conclusion of law. The second allegation is insufficient as it is an evidentiary fact. The third allegation is sufficient as it is an ultimate fact.
b. Pleading a cause of action
The codes required plaintiff to plead the facts constituting a “cause of action,” but did not offer any definition of the term of art. Controversy quickly developed over what a cause of action required. Must the plaintiff state the legal theory of recovery? How many facts must the plaintiff plead? Perhaps even more important, how would a cause of action be defined and bounded for purposes of res judicata? Commentators disagreed vehemently. Courts at all levels, including the Supreme Court of the United States, labored to define a cause of action both in the individual case and in a
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comprehensive fashion.23 Eventually, two major positions on
“cause of action” emerged.
One position was the “primary right” theory, as advocated by Professors John Norton Pomeroy and O. W. McCaskill.24 These
advocates argued a cause of action was the intersection of a single legal right in plaintiff with a single legal duty in defendant. For example, when plaintiff and defendant had an auto accident, defendant rushed to plaintiff’s car to punch him in the face, and seized plaintiff’s wallet as preliminary compensation, plaintiff had three separate and distinct legal theories of recovery: negligence, battery, and conversion. This meant plaintiff had three causes of action, Pomeroy and McCaskill asserted. Essentially, a cause of action was a single legal theory of recovery, and thus was essentially the same as the common law “right of action.” Plaintiff’s inchoate three rights of action would become embodied in three causes of action when pleaded in the complaint.
The other position was the “transactional” theory, as advocated by Professor Charles A. Clark.25 Clark argued a cause of action was a
single set of facts without regard to possible legal theories embedded within that set of facts: “The essential thing is that there
23 Compare Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 321, 47 S. Ct. 600, 602, 71
L.Ed. 1069, 1072 (1927) (“A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show.”) with United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67-68, 53 S. Ct. 278, 280, 77 L.Ed. 619, 623 (1933) (“[A cause of action is] something separate from writs and remedies, the group of operative facts out of which a grievance has developed.”).
24 John Norton Pomeroy, Code Remedies § 347 (Thomas A. Boyle ed., 4th ed. 1904);
O. W. McCaskill, Actions and Cause of Action, 34 Yale L.J. 614, 638 (1925). McCaskill defined cause of action as “that group of operative facts which, standing alone, would show a single right in the plaintiff and a single delict to that right giving cause for the state, through its courts, to afford relief to the party or parties whose right is invaded.”
25 Charles E. Clark, The Code Cause of Action, 33 Yale L.J. 817, 837 (1924). Clark
defined cause of actrion as “an aggregate of operative facts which give rise to one or more relations of right-duty between two or more persons. The size of such aggregate should be worked out in each case pragmatically with an idea of securing convenient and efficient dispatch of trial business.”
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be chosen a factual unit, whose limits are determined by the time and sequence and unity of the happenings, rather than by some vague guess or prophecy of potential judicial action.”26 Clark’s
cause of action was determined from a lay perspective on what facts would constitute a single transaction without regard to any legal theories a lawyer or judge might later apply to those facts. Accordingly, in the hypothetical in the paragraph above, Clark would answer plaintiff had one cause of action arising from a single set of facts, not three causes of action. As can be seen, Clark’s cause of action was much broader than Pomeroy’s and McCaskill’s cause of action. This difference would be manifest in the facts necessary to plead a cause of action and also in unpleaded portions of a cause of action that might be barred by res judicata.
C. Pleading under the Federal Rules of Civil Procedure