§8.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§8.8STRATEGIC AND PRACTICAL CONSIDERATIONS

The following discussion should be reviewed prior to filing any claim or answer.

(1) Pleadings generally

Despite liberal pleading requirements, a party must still plead sufficient facts to put the opposing party on notice of the particular claim. Failure to do so may expose one to a CR 12 motion to strike and/or CR 11 sanctions for filing a claim unsupported by fact or law.

See Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342, 352, 144 P.3d 276 (2006) (plaintiff failed to plead interference with a contractual relationship when it failed to refer to alleged contractual relationships or business expectancies in its complaint).

In Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn.App. 18, 25-26, 974 P.2d 847 (1999), the Washington Court of Appeals upheld dismissal of a First Amendment violation because the complaint did not allege all elements necessary to establish a prima facie free speech claim.

Likewise, a complaint was held insufficient to state a claim in Northwest LineConstructors v.Snohomish County Public Utility District No.1, 104 Wn.App. 842, 17 P.3d 1251 (2001), in which the court noted that "[a] complaint must at least identify the legal theories upon which the plaintiff is seeking recovery." Id. at 849 (quoting Dewey, 95 Wn.App. at 25 (citing Molloy v. City of Bellevue, 71 Wn.App. 382, 389, 859 P.2d 613 (1993), review denied, 123 Wn.2d 1024 (1994))).

The specific claims alleged must also be considered. Negligence claims, for example, require little more than the names of the parties, location and date of the incident, a brief description of the incident (i.e., defendant collided with plaintiff's vehicle), an allegation that defendant's negligence proximately caused the plaintiff's injuries, damages (economic and noneconomic), and a demand for judgment. A breach of contract claim, however, may require more details in the pleadings, particularly when more than one contract exists between the parties or the pleader makes inconsistent claims of law and equity.

Regardless of the substantive basis for the pleading, a pleader should strike a balance between avoiding verbosity and pleading all material facts related to each element of a potential claim, sufficient to withstand a motion to dismiss. That said, lengthy or sloppy pleadings may be subject to a CR 12(f) motion to strike.

(2) Dismissal for failure to state a claim

As a practical matter, a complaint will be dismissed for failure to state a claim under CR 12(b)(6) "sparingly and with care" and "only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Tenorev. AT & T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998), cert. denied, 525 U.S. 1171 (1999). Despite Washington courts' general tendency to deny CR 12 motions to dismiss, check whether you are required to plead your claim(s) with greater particularity than is generally necessary. For example, CR 9(b) requires pleading allegations of fraud and mistake with particularity.

Note: Federal courts used to follow the principle that the purpose of pleading is to facilitate proper decision making on the merits and not to erect technical burdens on the litigation process. See e.g., Conley v. Gibson, 355 U.S. 41, 48, 78 S. Ct 99, 2 L. Ed. 2d 80 (1957) ("The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."); Boston & Maine Corp. v. Town of Hampton, 987 F.2d 855, 865 (1st Cir. 1993) (purpose of breaking from fact pleading was to focus on merits of case rather than on technical pleading requirements), overruled by Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004). However, with its decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v.Iqbal, 556

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