Chapter §7.7 Significant Authorities



This section sets forth significant state and federal authorities dealing with CR 7 issues.

(1) Pleadings

This subsection sets forth significant state and federal authorities in the area of pleadings under CR 7.

(a) Washington

A court-ordered disclosure of expert witness information is not a "pleading" under CR 7(a), Clipse v. State, 61 Wn.App. 94, 97, 808 P.2d 777 (1991), nor are interrogatories, Omaits v. Raber, 56 Wn.App. 668, 671, 785 P.2d 462, review denied, 114 Wn.2d 1028 (1990).

A notice of appearance is not a pleading under CR 7(a). Thus, filing a notice of appearance that purports not to waive defects in service of process is not sufficient to preserve the affirmative defense, which must be timely raised in a "pleading," the answer. Lybbert v. Grant County, 141 Wn.2d 29, 1 P.3d 1124 (2000).

The civil rules require a reply to a counterclaim; it is not optional. Failure to reply to a counterclaim designated as such constitutes an admission of the averments in the counterclaim pursuant to CR 8(d). Jansen v. Nu-West, Inc., 102 Wn.App. 432, 438, 6 P.3d 98 (2000), review denied, 143 Wn.2d 1006 (2001).

Demurrers are abolished and cannot masquerade under another name, and there is no necessity for stating specific facts constituting a "cause of action" in a complaint. Sherwood v. Moxee Sch. Dist. No. 90, 58 Wn.2d 351, 363 P.2d 138 (1961).

It was proper for the court to strike allegations in a reply that were repetitions of the complaint and not in direct reply to the amended answer. Ennis v. Ring, 56 Wn.2d 465, 341 P.2d 885, 353 P.2d 950 (1959).

The civil rules do not apply to the manner of pleading in garnishment proceedings. See Ch. 6.27 RCW; Snyder v. Cox, 1 Wn.App. 457, 462 P.2d 573 (1969), review denied, 77 Wn.2d 962 (1970) (discussing prior statute, Chapter 7.32 RCW (repealed 1969)). The civil rules do, however, apply to other aspects of garnishment proceedings. Shreve v. Chamberlin, 66 Wn.App. 728, 832 P.2d 1355 (1992), review denied, 120 Wn.2d 1029 (1993) (setting aside default judgment in garnishment proceeding for failure to give notice of default motion to party who had answered and denied liability for garnishment).

(b) Federal

Motions to dismiss are not pleadings as defined by FED. R. CIV.P. 7(a). Therefore, a "motion to strike" is not the proper vehicle to challenge the propriety of such motions. Heise v. Olympus Optical Co., Ltd., 111 F.R.D. 1 (N.D. Ind. 1986).

A cross claim must be properly contained in an answer. A "cross claim" filed and served after the answer without leave of court is improper. Fed. Deposit Ins. Corp. v. Soden, 603 F. Supp. 629 (D. Kan. 1984).

Only an answer may contain a counterclaim and the reply is the final pleading. A counterclaim in a reply, in the absence of a motion to strike it, was treated as an amendment to the complaint. Cornell v. Chase Brass & Copper Co., 48 F. Supp. 979 (S.D.N.Y. 1943), aff'd, 142 F.2d 157 (2d Cir. 1944).

An answer to a cross claim may contain a counterclaim and shall state...

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