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We ain’t a notice pleading state

A colleague of mine, whom I greatly admire but who will remain nameless, recently posted a blog defining a summons and complaint in which he explained that “[t]he complaint is the document that basically sets out what you are hoping to get out of the case.  In South Carolina, you do not necessarily have to spell out all of the facts of the case in the complaint, you basically just give notice to the other side what you are asking for.”

That’s a common belief, even among my South Carolina family law attorney brethren.  It’s also wrong.  The federal rules of procedure allow for notice pleadings; South Carolina’s rules of procedure do not. Compare Federal Rule of Civil Procedure 8(a)(2) (“A pleading that states a claim for relief must contain… a short and plain statement of the claim showing that the pleader is entitled to relief”) with South Carolina Rule of Civil Procedure 8(a)(2), which requires “A pleading which sets forth a cause of action … shall contain… a short and plain statement of the facts showing that the pleader is entitled to relief…”

South Carolina family law attorneys treat South Carolina as a “notice” pleading rather than a “fact” pleading jurisdiction only because other South Carolina family law attorneys fail to file SCRCP 12(b)(6) motions to dismiss such “notice” pleadings as being insufficient.  A  previous blog notes our acceptance of notice pleading for family court temporary motions is similarly inappropriate.  Because we accept notice pleadings, and notice motions, as allowable, family court temporary hearings, in which neither side has to provide financial disclosure or affidavits prior to the hearing, are even more terrifying than they should otherwise be.

The “motion by ambush” of such temporary hearings would be reduced if we demanded compliance with the South Carolina Rules of Civil Procedure.

 

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