Opinion · Court of Appeals for the Second Circuit
Jules Michael v. Clark Equipment Company, Clark Leasing Corporation and Clark Rental Corporation
380 F.2d 351
- Type
- Opinion
- Court
- Court of Appeals for the Second Circuit
- Jurisdiction
- Federal
- Date
- 1967-07-13
- Topic
- general
How later courts describe this case
- “A great deal of time has been spent in this case in a struggle to get the plaintiff’s pleading into better shape. As this court has often remarked, time spent in this way is usually wasted.”
Citator
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MICHAEL v. CLARK EQUIPMENT COMPANY,380 F.2d 351(2nd Cir. 1967)
Jules MICHAEL, Plaintiff-Appellant v. CLARK EQUIPMENT COMPANY, Clark
Leasing Corporation and Clark Rental Corporation, Defendants-Appellees.
No. 488, Docket 31219.
United States Court of Appeals, Second Circuit.
Argued June 13, 1967.
Decided July 13, 1967.
John J. Macchia, New York City (Townley, Updike, Carter Rogers and Richard R. Lutz, New York City, on the brief), for appellees.
Before HAYS and FEINBERG, Circuit Judges, and McLEAN, District Judge.fn*
(1) Our examination of the complaint leads us to conclude that the allegations of fraud are sufficient to meet the requirements of Rule 9(b). It appears that the fault which the district court found with the pleading was not in fact addressed to particularization but rather to the inclusiveness of the plaintiff's allegations and to their possible inconsistency. The plaintiff is at liberty to refuse to be pinned down to a single theory of fraud; and inconsistency is not a tenable objection to a pleading. See Fed.Rules of Civ.Proc. 8(e)(2).
(2) There is no justification in the Federal Rules for an order to a plaintiff "to set forth his cause of action clearly." In the first place there is no requirement under the Rules that a complaint state a cause of action. The only relevant requirement is that of stating a claim on which relief can be granted. See Rules 8(a); 12(b). The order of the district court seems to have been designed to require something in the nature of a bill of particulars. But there is no requirement under the Rules that plaintiff provide a bill of particulars.
A great deal of time has been spent in this case in a struggle to get the plaintiff's pleading into better shape. As this court has often remarked, time spent in this way is usually wasted. See, e.g., Nagler v. Admiral Corp.,248 F.2d 319(2d Cir. 1957); Dioguardi v. Durning,139 F.2d 774(2d Cir. 1944). A better procedure than the so-called "trial" of "preliminary issues" would have been to proceed at once to a consideration of the merits either by means of a motion for summary judgment or of a full trial of the factual issues presented by the pleadings.
Reversed.