Although most claims can be stated simply, there are a few claims that require a heightened sense of information. For instance, mistake and fraud claims. Image that a person sues you for fraud. You would probably wonder what you did to fraud them. If you have done business with this individual for several years, it could be difficult to find out which particular facts are necessary to their claim. What transactions are in dispute? How will you prepare arguments? These are all questions one may have and a simply claim is not sufficient to prepare the defendant to respond. Therefore, Rule 9 says that the parties must state with “particularity” when dealing with fraud or mistake claims. In other words, they need to be more specific.

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit

507 U.S. 163 (1993).

Leatherman lost in the trial and appellate court. Appealed to the Supreme Court.


Whether the court may apply a “heightened pleading standard”. . . in civil rights cases alleging municipal liability.


9(b) imposes which cases are to be stated with particularity, namely fraud and mistake.


There is no heightened pleading standard for municipal liability. Reversed.


The defendants are a narcotics S.W.A.T. team. This particular team must have been pretty violent in their nature, having killed owners dogs and abused owners (according to plaintiffs). However, government agencies were not allowed to be sued by plaintiffs. However, they could be sued if the plaintiffs targeted the Constitutionality of a policy.

In this complaint, the defendants targeted the policy of how the officers were trained, but did not point to any specific instance of when the training was inadequate. Although this was sufficient to meet a Rule 8(a)(2) standard, it would not meet a heightened standard. Consequently, the trial court dismissed saying that municipal liability was a heightened standard.


The Supreme Court quickly reversed the trial and appellate court’s findings. Simply put, Rule 9 outlines which cases are to have a heightened standard (fraud and mistake). Because municipal liability is not on that list, it does not earn a heightened standard. This would be an issue for congress to determine, not the courts.


There are reasons for the heightened standard. First we want to provide defendants with fair notice and protect their reputation. Second, we want to protect governments from potentially ruinous claims. Finally, we want to protect from suspect plaintiffs.

This rule may also be described under the latin phrase Expressio unius est exclusio alterius, which translates to “The express mention of one thing excludes all others.” That means, since they listed what should be included in rule 9, all other potential things were intentionally omitted.

Additional Notes

Our first takeaway from this court is that it is hard to sue the government.

The question of this case was “is there a heightened pleading burden to go along with a heightened evidentiary burden.” The defendant is arguing that this high standard should be upheld.

However, the pleading standard is included in rule 8. There is no statement in rule 8 that says there is a heightened pleading standard for suing the government.

The only claims that have a heightened pleading rule is fraud and mistake. Rule 9(b). Rule 9(b) states that these must be stated with particularity. This means that the plaintiff must be more “specific”. The reason for this is because there are so many instances where fraud could have been, being such a subtle be devious tort. So, the defendant may not know which instance they could be referring. Thus, the defendant needs to be notified by specifics of what facts are being made against them.

Jones v. Bock

549 U.S. 199 (2007).


The statute presents 3 questions:

  1. Whether the exhaustion rule requires heightened particularity in the pleading, or acts as an affirmative defense.
  2. Whether the pleading needs to list all the defendants, according to the statute.
  3. Finally, if there are mixed claims, some exhausted while others not, whether all the claims must be dismissed.


  1. Requires that any exhaustion claims should be brought up as affirmative defenses by the defendant.
  2. There is no need to list all the defendants within the plea.
  3. If some claims are exhausted while others are not, the court can still hear the exhausted claims.

The outcome from the rule above results a reversal of all cases consolidated within the opinion.


To limit the number of frivolous filings by inmates, Congress passed the Prison Litigation Reform Act of 1995 (PLRA). Another purpose was to increase the quality of complaints. The act states that if you have a complaint, you must exhaust all other means of remedy with the prison before hand. However, there were some parts of the law left blank that was subject to interpretation.

Three inmates suffered injustices (two medical and one racial discrimination) and went through the steps to exhaust all means of remedy. The first inmate, Jones, had exhausted all the steps, but failed to attach certain information in the pleading. His claim was dismissed. The second inmate, Williams, failed to state all the defendants in his pleading. His claim was dismissed. Finally, the third inmate, Walton, had a mix of exhausted claims and unexhausted claims. All claims were dismissed.


The court reverses the rulings on all three of these inmates outlining the rules that the courts will follow when it comes to similar issues. Those rules are outlined above. The reasoning provided by the court is that had Congress wanted to create the rules that were created by the circuits, they would have done so. Meaning, if Congress wanted the exhaustion requirement to appear in the pleadings, they would have said so. Instead, they left it to follow the normal civil procedure rules which makes the exhaustive requirement an affirmative defense. Similar arguments persisted for the other two rules.

Additional Notes

Our purpose of this case is to focus on the pleadings. Here, this is an issue of when the plaintiffs were allowed to file a case in court. Prisoners are only allowed to file a case in court if they “exhaust administrative remedies” by going to the prison authorities. This is true for particular fields (unemployment courts).

The defendants here argue that the plaintiffs did not add in a factual allegation of exhausting all administrative remedies. The Supreme Court says that this is not an issue, it does not need to arise in the complaint.

Instead, this should be provided as an affirmative defense. A good way of putting this is “yeah, but…” This means that you may plead, but you were wrong about this. An example of an affirmative defense is the Statute of Limitations. Exhausting all claims is also seen as an affirmative defense.

The answer contains three parts:

  1. Response to the allegations
  2. Affirmative defenses
  3. Counterclaims

Stratford v. Zurich Ins. Co

2002 WL 31027517 (S.D.N.Y)

Procedural History: Plaintiff sued, defendant posted counterclaims, and the plaintiff responded to those counterclaims, asking them to be dismissed.


Should the counterclaims be dismissed for failure to state a claim or meet the federal rule to state a claim of fraud with particularity.


The time, place, and nature of the fraud must be stated in the claim. Rule 9(b).


Dr. Stratford is a dentist. He let his insurance claim expire sue to not making premium payments. However, eventually he started making the payments again and his insurance claim was reinstated. “Conveniently,” Dr. Stratford has an office leak that occurred 10 days after his plan was reinstated. He filed a claim for $100,000 and relief was granted. He revised his claim for $1,000,000 for property damage and business interruption. So, the insurance company called him in to a deposition, which he began but never finished. He also refused to go to further deposition times. As a result, the insurance wanted a refund for the amount that was provided and refused to pay the remainder of what Dr. Stratford demanded.

Dr. Stratford sued for the amount in his insurance claims. The insurance company countersued stating that the insurance claim was made under fraud.


Unfortunately for the insurance company, their counterclaims do not make it past the pleading stage. This is because Rule 9(b) requires the “time, place, and nature of the alleged misrepresentations be disclosed to the party accused of fraud.” In other words, the insurance company would need to be more specific on how the fraud occurred. They did not point to a specific instance in their plea where it had happened.

The main takeaway is that fraud requires a higher pleading standard than other claims.

Additional Notes

In the answer, the defendant can bring either an affirmative defense or a counterclaim. The counterclaim is exactly the same as a claim except it is being asserted by the defendant against the plaintiff. So, a counterclaim needs to follow rule 8 and 9.

Because this is a claim of fraud, rule 9(b) applies. The issue here is that 9(b) has additional requirements. It requires that the claim contains the “time, place, and nature” of the instance of fraud. The reason for this is because so many things could be considered fraudulent. Because of this the claimant is required to provide sufficient information to put the other party on notice.

Examples of fraud could have been that there was no damage, or that damage was caused purposefully, or that the damages were inflated, etc. It need to be more particular. Spell it out.

Additional Notes

There are only two rules that govern the pleadings. Rule 8 and 9. Most claims are going to be rule 8 claims because rule 9 covers only fraud and mistake claims. The standard for rule 9 is a higher standard, you need to state claims with particularity. Iqbal (next class) is Rule 8 case while Stratford is the only Rule 9 case. The interesting thing is that that Fraud claims are also accompanied by other claims in the same complaint.

The difference between a rule 12(b)(6) and other 12(b) motions to dismiss is that 12(b)(6) is attacking either the facts of the complaint of the law that is asserted. All the other 12(b) motions to dismiss attack the jurisdiction or notice.

When the defendant asserts a 12(b)(6), they need to state specifically which claims fail to meet the rules.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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