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RULE 9. PLEADING SPECIAL MATTERS

July 25, 2011

RULE 9.01: CAPACITY.

It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or to be sued in a representative capacity, he or she shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.

RULE 9.03: CONDITIONS PRECEDENT.

In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

RULE 9.04: OFFICIAL DOCUMENT OR ACT.

In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

RULE 9.05: JUDGMENT.

In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board of officers, it is sufficient to aver the judgment or decision without setting forth matters showing jurisdiction to render it.

RULE 9.06: TIME AND PLACE.

For the purpose of testing the sufficiency of a pleading, averments of time and place are material, and shall be considered like all other averments of material matter.

RULE 9.07: SPECIAL DAMAGE.

When items of special damage are claimed, they shall be specifically stated.

Advisory Commission Comments. Rule 9 sets forth rules governing the pleading of several specific matters about which questions might arise. The Rule is not intended to create exceptions to the principles set out in Rule 8, but is rather an exemplification of those principles in specific situations. The requirement in Rule 9.02 – in averments of fraud or mistake the circumstances constituting fraud or mistake must be set forth with particularity – is not intended to require lengthy recital of detail. Rather, the Rule means only that general allegations of fraud and mistake are insufficient; the pleader is required to particularize, but by the “short and plain”statement required by Rule 8.01.

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