Thursday, June 03, 2010

Rule 5(c) Motion (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It addresses the use of Rule 5(c) motions to simplify pleading where there are a large number of defendants. Both F.R.C.P. Rule 5(c) and C.R.C.P. Rule 5(c) allow any party to file a motion requesting that defendants' pleadings be deemed served on all parties merely by serving plaintiff, and counterclaims or cross-claims in defendants' pleadings are deemed denied by all other parties. This is especially useful in cases, such as mechanics' lien foreclosures, where there are usually many defendants all of whom must assert cross-claims against all other defendants to assert priority of their claims.
- State that Rule 5(c) permits the court, on a motion or its own initiative, to invoke deemed denials and service under that rule.
- Set forth the reasons why the instant case will result in numerous cross-claims or counterclaims.
- State that "The filing of these various responsive pleadings will unduly clutter the record and work a hardship on the parties."
- Include proposed order.
Thoughts & Best Practices:
- Consider using Rule 5(c) motion in mechanics' lien foreclosure actions, interpleaders, other actions that will generate a complicated web of counter- and cross-claims.
- However, consider whether the utility of a Rule 5(c) order will outweigh the lack of potential admissions to certain allegations in counter- or cross-claims, and prepare to make requests for admission through written discovery to address the lack of a truly responsive pleading (where appropriate, consider opposing Rule 5(c) motion on these grounds, and if denied use as argument to expand number of requests for admission permitted).
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit for more information.

This post is part of my Coloradolitigation checklist approach to litigation knowledge management and litigation strategy.

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