Pleading special matters

(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. (b) Fraud, mistake, condition of the mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. (c) Conditions precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity. (d) Official document or act; ordinance or special statute. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law. In pleading an ordinance of a municipal corporation or a special or local or private statute or any right derived therefrom, it is sufficient to refer to the ordinance or statute by its title and the date of its approval, and the court shall take judicial notice thereof. (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (f) Time and place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter. (g) Special damage. When items of special damage are claimed, they shall be specifically stated. (h) Fictitious parties. When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name. (dc) District court rule. Rule 9 applies in the district courts. [Amended eff. 10-1-95.] Committee Comments on 1973 Adoption Subdivision (a). The rule is the same as most state rules on the matter. E.g., Colo.R.C.P. 9(a), Del.R.Super.Ct. 9(a), Ky.R.C.P. 9.01, Minn.R.C.P. 9.01, Nev.R.C.P. 9(a), Tenn.R.C.P. 9. The first sentence of Federal Rule 9(a) differs; it provides that capacity need not be pleaded “except to the extent required to show the jurisdiction of the court.” The exception is not needed in state courts, where jurisdiction is not dependent on the citizenship of the parties. Rule 9(a) is based on the premise that capacity is not in issue in most cases, and that it should be raised by specific averment in the few cases where it is in issue rather than pleaded as a matter of course in all cases. Existing Alabama law had required the complaint to show affirmatively that the plaintiff was a legal entity capable of suing or being sued, if that was the fact. Buchman v. Grimes, 261 Ala. 383, 74 So.2d 443 (1954); Shepherd v. Birmingham Trust & Savings Co., 233 Ala. 320, 171 So. 906 (1937). The rule abolishes this requirement, and makes it unnecessary, for example, to set out the words “a corporation” or “an unincorporated association” following the name in the caption. Bauers v. Watkins, 7 F.R.D. 150 (N.D.Ohio 1945); 2A Moore’s Federal Practice, ¶ 9.02, at p. 1912 (2d ed. 1968). This will be true also as to suits against a partnership, since a statute allows such suits against the partnership in its common name. Code of Ala., § 6-7- 70. But the statute only applies to partnerships as defendants; where the partnership is a plaintiff, it will still be necessary to describe the partnership as such, following its common name, and also to include the names of the partners in the complaint. Illinois R.R. Co. v. Avery & Son, 190 Ala. 241, 67 So. 414 (1914). As to representatives, an allegation of capacity may be an essential ingredient of the claim for relief. However, a conclusory allegation is adequate until challenged by a pleading in compliance with Rule 9(a). See, e.g., Montellier v. United States, 202 F.Supp. 384, 390 (E.D.N.Y.1962), affirmed on other grounds, 315 F.2d 180 (2d Cir.1963). Better practice would include descriptions of all non-individual parties although, as noted, such defects are generally not fatal. See Wright & Miller, Federal Practice and Procedure, Civil § 1292 (1969). Objections to lack of capacity will be made under Rule 9(a) much as under the present practice, although they now are to be presented by the answer rather than by demurrer or special plea. It has long been held in Alabama that lack of capacity cannot be raised under a general denial, Espalla v. Richard & Sons, 94 Ala. 159, 10 So. 137 (1891), Hicks v. Biddle, 218 Ala. 2, 117 So. 688 (1928), and this will continue to be true under the rule, which requires a “specific negative averment.” Langwood Products v. De Luxe Game Corp., 9 F.R.D. 418 (E.D.N.Y.1949). An allegation that defendant lacks knowledge or information sufficient to form a belief as to capacity raises no issue, Tractortechnic Gebrueder Kulenkempft & Co. v. Bousman, 301 F.Supp. 153 (D.C.Wis.1969); Kucharski v. Pope & Talbot, 4 F.R.D. 208 (S.D.N.Y.1944). Although Rule 9(a) does not so provide, it has been held that a lack of capacity appearing affirmatively on the face of the complaint can be raised by motion to dismiss. Klebanow v. New York Produce Exchange, 344 F.2d 294 (2d Cir.1965); Coburn v. Coleman, 75 F.Supp. 107 (W.D.S.C.1947); cf. Brush v. Harkins, 9 F.R.D. 604 (W.D.Mo.1949). See Wright & Miller, Federal Practice and Procedure, Civil § 1294 (1969). Existing Alabama practice is similar, City Loan and Banking C. v. Poole, 149 Ala. 164, 43 So. 13 (1907); Liddell & Co. v. Carson, 122 Ala. 518, 26 So. 133 (1898). It will no longer be necessary to verify a plea challenging the legal existence of a corporation or partnership; the statute so providing, Code of Ala., Tit. 7, § 377, is superseded by