Louisiana Advocates, June 2020, Vol. XXXV, No. 6. Copyright
Louisiana Association for Justice. Used with Permission.

Introduction

A lot of personal injury attorneys are exploring new areas of practice right now.  Maybe you are brushing up on potential federal causes of action or even considering filing a diversity action in federal court.  If you are exploring practice areas that require you to file your lawsuit in federal court, remember to be mindful of the federal pleading standards if you want to survive a motion to dismiss.  Rule 8 is the general rule for federal pleading, but Rule 9 contains numerous exceptions.   One interesting exception is the lower pleading standard for conditions precedent.

Rule8 v. Rule 9

Most litigators know that Rule 8 sets forth the “General Rules of Pleading” under our modern federal notice pleading standard.  In Twombly and Iqbal, the Supreme Court interpreted this notice pleading rule as including a plausibility requirement, which means that the pleading need only contain enough facts to “state a claim to relief that is plausible on its face.”  

There are exceptions to this pleading standard, and Rule 9 (“Pleading Special Matters”) outlines these exceptions.   The canon of statutory construction that prioritizes the specific over the general means that the specific provisions found in Rule 9 trump the general mandates of Rule 8. 

Perhaps the most commonly-known exception is that Rule 9 requires fraud to be stated with particularity.   A lesser-known, but more plaintiff-friendly exception is also found in Rule 9, which includes a general allegation standard for pleading conditions precedent (or, in Louisiana parlance, a suspensive condition).  In other words, Rule 8 sets forth the baseline standard (notice-plausibility), while Rule 9 creates exceptions to this rule, including a heightened pleading standard for fraud, and a lower pleading standard for conditions precedent.

Rule 9—Conditions Precedent Can Be Generally Averred

Pursuant to Rule 9(c) of the Federal Rules of Civil Procedure, a condition precedent need only be generally averred to satisfy the pleading standard.  Rule 9(c) states, “CONDITIONS PRECEDENT.  In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed…”   Rule 9 continues by setting forth a heightened standard for denying that a condition precedent has occurred or been performed:  “But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.”

In analyzing the pleading standard for the occurrence or performance of conditions precedent or the lack thereof, the Fifth Circuit has noted the dichotomy between pleading occurrence or performance on the one hand and pleading insufficient pleading or performance on the other:   “[Rule 9(c)] permits a plaintiff in its pleadings to aver generally that all conditions precedent have been satisfied, but it requires that ‘when denying a condition precedent has occurred or been performed, a party must do so with particularity.”   The Fifth Circuit went on to state that, “[f]or ‘special matters’ like conditions precedent, Rule 9’s requirements dictate what must appear in the pleadings.”  In other words, even in a post-Twombly world, in the Fifth Circuit general allegations that conditions precedent have been satisfied meet the Rule9(c) standard. 

Some courts go so far as to hold that Rule 9 does not even require a general averment that conditions precedent have been met, but instead merely prescribes that, should a pleading allege satisfaction of conditions precedent, those allegations need only be general in nature. See, e.g., Mendez, 840 F.Supp.2d at 648–49; Kapahu v. BAC Home Loans Servicing LP, No. 10 Civ. 97, 2010 WL 2734774, at *4 (D. Haw. 2010).   

Conclusion

If you are dealing with a cause of action that involves conditions precedent (such as an EEOC right-to-sue letter in an employment case, a notice provision of a contract, etc.), then remember that in federal court, you only need to generally aver your client’s compliance with those conditions precedent to survive a motion to dismiss.  Of course, a defendant can challenge your client’s compliance, but will have to plead lack of compliance with particularity—a heightened standard.  What’s more, in the Fifth Circuit, you can argue that the defendant’s challenge should not be decided at the pleadings stage, but that it should resolved via summary judgment or trial.  The lower pleading standard for conditions precedent is one part of a complaint, at least, that is comparatively easy to satisfy.  As long as you can plead in good faith that your client generally complied with conditions precedent, you should be good to go.

By Casey DeReus

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1 FED. R. CIV. P. Rules 8 and 9.

2 FED. R. CIV. P. Rule 8.

3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

4 FED. R. CIV. P. Rule 9.

5 FED. R. CIV. P. Rule 9(b).

6 FED. R. CIV. P. Rule 9(c).

7 Id.

8 E.E.O.C. v. Serv. Temps. Inc., 679 F.3d 323, 331 (5th Cir. 2012). 

9 Id. at 333. 

10 Equal Employment Opportunity Comm’n v. Vantage Energy Servs., Inc., 954 F.3d 749, 753 (5th Cir. 2020) (noting that generally pled conditions precedent satisfied Rule 9(c), and even suggesting that challenges to these general allegations could only be resolved via summary judgment or trial).  The weight of federal jurisprudence corresponds with the Fifth Circuit rule.  See, e.g., Mendez v. Bank of America Home Loan Servicing, LP, 840 F.Supp.2d 639, 646–51 (E.D. N.Y. 2012) (holding that the “plain language of Rule 9(c) controls” and that plaintiff was not required to plead that he has fulfilled the conditions precedent in the contract at issue, but noting that even if a general averment were required the plaintiff satisfied the general averment standard in that case); Patel v. Baluchi’s Indian Restaurant, 2009 WL 2358620 at *7–8 (S.D. N.Y. 2013) (dismissing a claim when the complaint was silent regarding satisfaction of conditions precedent, and noting that plaintiffs had failed “even to allege generally that ‘all conditions precedent have been satisfied’”); Digital Ally, Inc. v Z3 Technology, LLC, 2010 WL 3974674 at *3–5 (D. Kans. 2010) (implicitly accepting the legal sufficiency of the following general averment that conditions precedent had been satisfied: “[plaintiff] performed all conditions precedent in PLA—2009”); Ackerly Media Grp., Inc. v. Sharp Elec. Corp., 170 F.Supp.2d 445, 453 (S.D. N.Y. 2001) (“Apparently [defendant] believes that an ‘absence of itemized averments of [plaintiff’s] performance’ is somehow fatal to [plaintiff’s] claim.  The plain language of [Rule 9(c)] would seem to indicate otherwise.”).