We ain’t a notice pleading state

Posted Sunday, April 3rd, 2011 by Gregory Forman
Filed under Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

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.


5 thoughts on We ain’t a notice pleading state

  1. B Stevens says:

    Mr. Forman,

    I was stunned when, during my divorce, I discovered that my attorney did not know that SC was a fact pleading state.

    In the US Supreme Court’s opinion in Ashcroft v. Iqbal (2009), Justice Kennedy’s majority opinion states that Rule 8(a)(2) “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation” and requires that a complaint be “facially plausible”:

  2. L P says:

    Saying that SC or NC are not notice pleading states is misleading. There are really no “notice pleading” states if viewed by this article. SC and NC merely require that “some” supporting “facts” be pleaded, not so specific as a “code pleading”, but something more than mere notice. SC and NC do not require that only “ultimate facts” be pleaded.

  3. B Stevens says:

    The following holdings are from Justice v. The Pantry, 330 S.C. 37, 496 S.E.2d 871 (Ct.App.1998):

    “The grant of a motion to dismiss for failure to state facts sufficient to constitute a cause of action cannot be upheld if facts alleged in the complaint and inferences reasonably deducible therefrom, if proven, would entitle the plaintiff to relief on any theory of the case.  Newton v. South Carolina Public Railways Comm’n, 319 S.C. 430, 462 S.E.2d 266 (1995)” and “Under Trumbo, the plaintiff must plead facts which are sufficient to establish the statutory elements of the cause of action.”

    The following quote is excerpted from the explanatory note contained within SCRCP 8(a) ” State practice requiring pleading of the facts (rather than a “statement of the claim”) is retained.

    I believe “the claim” is all the is required in notice pleading.” Perhaps Mr. Foreman will give his input.

  4. CWT says:

    Mr. Forman, I hear you are one of the best family law attorneys in the state so my criticism here is made respectfully, but this blog post and comments are rather misleading.

    Mr. Forman is correct that you do not see many 12(b)(6) motions for insufficient fact pleading. But this is because the person bringing such a motion will lose. Also, the Iqbal case cited by B Stevens above applies to the FRCP, not SCRCP. Paradoxically, federal courts have stricter pleading requirements despite having a pleading standard that sounds at first blush like it might be more lenient.

    Commenter LP is correct in that only ultimate facts are required in SC. I can’t speak for divorce litigation, but in other civil litigation, you are not helping your case by including more specific facts in the Complaint. It’s better to keep Complaints general and vague than to lock yourself in by alleging specific facts. You can enter the detailed evidence to the record by other means.

  5. B. Stevens says:

    Would CWT please give the the legal definition of the phrase “ultimate facts.” Is -she done him wrong- an ultimate fact? I think Mr. Forman was pointing out that some attorneys and Judges may be practicing law with a little less respect or understanding than is required by the rules of court. If you don’t think that is so, then please explain the purpose of the appellate system.

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