§9.7 Significant Authorities

JurisdictionWashington

§9.7SIGNIFICANT AUTHORITIES

With respect to CR 9 generally, see 3A Karl B. Tegland, Washington PRACTICE, CR 9 (6th ed. 2013); Robert Meisenholder, TheEffectofProposedRules 7 through 25 on Present Washington Procedures, 32 WASH. L. REV. 219 (1957); Warren L. Shattuck, Contracts in Washington, 34 WASH. L. REV. 467 (1959); Melvyn J. Simburg, Donald P. Swisher & Ronald G. Brown, Pleading and Proving Foreign Law – The New Rules, 37 WASH. ST. BAR NEWS 61 (Sept. 1983); Philip A. Trautman, Pleading Principles and Problems in Washington, 56 WASH. L. REV. 687 (1981); Philip A. Trautman, Choice of Law in Washington – The Evolution Continues, 63 WASH. L. REV. 69 (1988).

With respect to FED. R. CIV. P. 9 generally, see 5A Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE §§1271, 1291-1335, 1337 (2004); 2 James W. Moore, MOORE'S FEDERAL PRACTICE §§8.04[8]- [10], 9.01-9.08, 9.10 (3d ed. 2013).

(1) Capacity

(a)Washington

Under CR 9(a), a plaintiff does not have to allege capacity to bring an action. The rule requires the defendant to assert lack of capacity in its answer. RTC Transp., Inc. v. Walton, 72 Wn.App. 386, 391-92, 864 P.2d 969 (1994).

Ordinarily the issue of capacity should be raised in a party's answer. However, filing an answer without raising the issue does not constitute a waiver and the issue can be raised by motion. Roth v. Drainage Improvement Dist. No.5, 64 Wn.2d 586, 587, 392 P.2d 1012 (1964). A motion to amend an answer to allege lack of capacity must be made before summary judgment argument is heard. TrustFund Servs. v. Glasscar, Inc., 19 Wn.App. 736, 745, 577 P.2d 980 (1978).

Prior to its repeal by Laws of 1989, ch. 163, §204, effective July 1, 1990, RCW 23A.44.120 required a corporation to allege and prove that it had paid all required license fees to the state before it could commence or maintain an action. See,e.g., LawyersCo-op Publ'g Co. v. Kuntz, 73 Wn.2d 674, 440 P.2d 813 (1968). See §9.6(1)(c), above. A corporation's failure to allege capacity to sue must be raised by defendant's specific negative averment. Lindsay Credit Co. v. Skarperud, 33 Wn.App. 766, 769, 657 P.2d 804 (1983).

(b) Federal

A general denial in an answer is sufficient to allow a defendant to introduce evidence of plaintiff's forfeiture of a certificate to do business in the state because defendant's intended use of the evidence was to negate an element of plaintiff's complaint rather than to show lack of capacity. Iowa-Mo Enters., Inc. v. Avren, 639 F.2d 443, 447 n.2 (8th Cir. 1981).

The capacity issue will be deemed waived if not raised until the eve of trial. See De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 878 (9th Cir.), cert. denied, 531 U.S. 876 (2000).

(2) Fraud, mistake, condition of the mind

(a)Washington

In pleading fraud, all elements of the claim should be alleged. See Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 165, 744 P.2d 254 (1987), amended, 750 P.2d 254 (1988) ("The complaining party must plead both the elements and circumstances of fraudulent conduct."). Under Washington law, the elements of fraud are (1) the representation of an existing fact (2) that is material and (3) false (4) by a person with knowledge of its falsity or ignorance of its truth and (5) with the intent that it be acted upon by a person who (6) reasonably (7) relies on the misrepresentation (8) in ignorance of its falsity (9) to his or her detriment. Sigman v. Stevens-Norton, Inc., 70 Wn.2d 915, 920, 425 P.2d 891 (1967).

"[A] false promise does not constitute the representation of an existing fact" such that a plaintiff pleading only a false promise fails to state a facial claim for fraud. Adams v. King County, 164 Wn.2d 640, 662, 192 P.3d 891 (2008).

To determine whether allegations of fraud satisfy particularity requirements, the court will consider only the complaint and not additional allegations made in briefs. Haberman, 109 Wn.2d at 164-69.

When the facts as alleged in the complaint show constructive fraud, the word "fraud" need not be stated. Harstadv.Frol, 41 Wn.App. 294, 301, 704 P.2d 638 (1985).

The particularity requirement of CR 9(b) is satisfied if the complainant identifies the transaction in which fraud is alleged and clearly describes the transaction as nonconsensual and void. Pedersenv.Bibioff, 64 Wn.App. 710, 720-21, 828 P.2d 1113 (1992).

Washington courts follow the RESTATEMENT (SECOND) OF TORTS §552 (1977) and its comment (a) to hold that "[w]hen there is no intent to deceive, but only good faith coupled with negligence, the fault of the maker of the misrepresentation is sufficiently less to justify a narrower responsibility for its consequences." Haberman, 109 Wn.2d at 188.

When pleading mistake, the averment of mistake must be specially pleaded and the circumstances concerning the mistake must be stated with particularity in the complaint. A later supplement with statements establishing the alleged facts of the mistake does not meet the requirements of CR 9(b). Denny'sRests.,Inc.v.Sec.Union Title Ins. Co., 71 Wn.App. 194, 211-12, 859 P.2d 619 (1993).

(b) Federal

FED. R. CIV. P. 9(b) requires that fraud or mistake be pleaded "with particularity." Because this is contrary to the general approach to simplified pleading, the requirement should be construed narrowly. Owens v. Ashland Oil, Inc., 708 F. Supp. 757, 758-59 (W.D. Va. 1989).

The particularity requirement serves to deter the filing of a complaint to discover a wrong, to protect defendants from the stigma that results when they are charged with an act involving moral turpitude, and to ensure that the allegations of fraud are particularized enough for a defendant to respond to them. Stewart v. Fry, 575 F. Supp. 753, 756 (E.D. Mo. 1983).

A plaintiff must set forth "the who, what, when, where and how" of the alleged misconduct. Vessv.Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).

Although the time, place, identity, and content of the false representations should be pleaded specifically, knowledge and intent may be averred generally. E.I. Du Pont De Nemours & Co. v. Dupont Textile Mills, 26 F. Supp. 236, 237 (M.D. Pa. 1939).

To satisfy the misrepresentation element in a fraud action, the plaintiff must allege facts and circumstances that show the misrepresentations were false at the time they were made, not merely in hindsight. Steiner v. Unitrobe Corp., 834 F. Supp. 40, 43 (D. Mass. 1993).

To successfully allege fraud by silence, plaintiffs must allege the following facts and/or circumstances: (1) that information was withheld; (2) the general time period during which the fraudulent omission occurred; (3) the relationship that gave rise to a duty to speak on the defendantrt; ahe defendant achieved by failing to disclose the required information. Chrysler Credit Corp.v.WhitneyNat'l Bank, 824 F. Supp. 587, 598 (E.D. La. 1993).

Even if a plaintiff has failed to satisfy FED. R. CIV. P. 9(b), a court might not dismiss plaintiff's complaint on this ground alone when the defendant has not filed a motion for a more definite statement under FED. R. CIV. P. 12(e). See Coffey v. Foamex, L.P., 2 F.3d 157, 162 (6th Cir. 1993).

"Generally" as used in FED. R. CIV. P. 9(b) "merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade the less rigid—though still operative—strictures of Rule 8." Ashcroft v. Iqbal, 556 U.S. 662, 686-87, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

(3) Condition precedent

(a)Washington

When the performance of one promise is a condition precedent to a right of action on the promise of another, the first promisor must plead performance or tender of performance of his or her promise to maintain an action for breach of the other's promise. Jensonv.Richens, 74 Wn.2d 41, 45-46, 442 P.2d 636 (1968); see also Dyson v. King County, 61 Wn.App. 243, 809 P.2d 769, review denied, 117 Wn.2d 1020 (1991).

When performance of a condition precedent is alleged generally in the complaint, a specific denial is necessary to raise the issue at trial if the defense is plaintiff's breach of performance. Taylorv.Modern Woodmen of Am., 42 Wash. 304, 307, 84 P. 867 (1906).

CR 9(c) does not require pleading of procedural conditions precedent. Further, failure to plead conditions precedent can be cured by amendment or proof. Goodner v. Chi., Milwaukee, St. Paul & Pac. R.R. Co., 61 Wn.2d 12, 27, 377 P.2d 231 (1962).

(b) Federal

Aparty waives its right to raise an issue regarding the occurrence of conditions precedent if it fails to plead the issue "specifically and with particularity." A general denial does not satisfy the FED. R. CIV. P. 9(c) requirement. Davis v. Kan. City Hous. Auth., 822 F. Supp. 609, 618 (W.D. Mo. 1993).

FED. R. CIV. P. 9(c) obliges the pleader to allege compliance with a contract, or to state that performance was excused. Redfield v. Cont'l Cas. Corp., 818 F.2d 596, 610 (7th Cir. 1987).

When an insurer entered a general denial that the terms and conditions of a policy had been complied with but did not specifically deny the condition precedent of filing of proof of loss, whether proof of loss was filed was not an issue in the case. Lumbermens Mut. Ins. Co. v. Bowman, 313 F.2d 381, 387 (10th Cir. 1963).

(4) Official document or act

(a)Washington

Washington courts have not construed CR 9(d).

(b) Federal

The provisions of FED. R. CIV. P. 9(d) include the acts of any officer done in an official capacity under color of office. 5A Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE §1305 (3d ed. 2004) (citing Whitneyv.United States, 99 F.2d 327, 328-29 (10th Cir. 1938)).

(5) Judgment

(a)Washington

Washington courts have not construed CR 9(e). In practice, note the interplay between CR...

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex