Pleadings and their Proper Names
May 8, 2018 § 4 Comments
We all lapse into using the general term “pleadings” to embrace just about any and every filing with the court. But that’s a bad habit that we need to break.
There are only seven instruments that are considered pleadings under the MRCP. They are listed in R7(a), which reads:
Pleadings. There shall be a complaint [or a petition, see below] and an answer [which may include a R13 counterclaim]; a reply to a counter-claim denominated as such; [a cross-claim against a co-defendant] an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who is not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer. [My emphasis and editorial comments]
That’s it. Those are the filings that by definition are pleadings. A motion is not a pleading. Motions “and other papers” are dealt with in R7(b), separate and apart from pleadings.
And while we’re at it, notice that there is no mention in R7 of “countercomplaints,” “cross-petitions,” or “motion for modification” or any other such products of an overactive legal imagination. As the court said in Cornelius v. Overstreet, 757 So. 2d 332, 335 (Miss. App. 2000):
¶ 9. In addition, this Court would like to comment to the bar and the trial bench about cases similar in nature which fall within the purview of Rule 81(d) of the Mississippi Rules of Civil Procedure. The initiation of such actions should be by filing “complaints” or “petitions,” and “counterclaims” or “cross-claims” (whichever might be appropriate), not “motions” and “cross-petitions” as was done in this case. See M.R.C.P. 13, 81(d)(1–3), 81(f), and comments to 81(d)(3) and 81(f).
The use of the term “Petition” in place of complaint in chancery matters has been suggested by the MSSC to reflect long-standing practice particularly in estate matters, and to distinguish contempt and modification actions based on continuing jurisdiction from initial complaints.
There is no penalty for mislabelling a pleading other than the usual price an otherwise well-educated person pays for appearing ignorant.
A previous post dealing with this same subject is here. As an added bonus, you will note that I lumped motions in with pleadings in that earlier post. Well, that just goes to prove what I said in my first sentence above.
I would echo this for the “motion to reconsider.” Amazing how often it is filed.
Rule 54(b) implicitly allows at least some motions for reconsideration (maybe should be “motions for revision”), but we need a tighter standard, IMHO. I’ve got an interloc granted where I’m arguing that the Rule 59 standard should apply to 54(b) motions.
It seems to follow from this that an amended motion doesn’t necessarily require leave of court, since MRCP applies only to pleadings.
Interesting. I wonder how the courts would interpret this.