§10.6ANALYSIS
This section discusses the construction and application of the various requirements of CR 10.
(1) CR 10(a): Caption
CR 10(a) specifies information that must be included in the case caption. Subsection (a)(1) requires that the caption of a complaint include the names of all parties. Later pleadings may omit the names of all parties except the first party on each side if an appropriate indicator such as "et al." is used to show the presence of the omitted parties. CR 10(a) applies only to pleadings and thus technically does not apply to a summons, the contents of which are governed by CR 4. Qual. Rock Prods., Inc. v. Thurston County, 126 Wn.App. 250, 263 n.12, 108 P.3d 805 (2005). The rule is not jurisdictional. Instead, "CR 10 generally concerns the format and appearance of pleadings." Qual. Rock Prods., 126 Wn.App. at 269. Failing to name a necessary party in the caption of a land use petition therefore did not deprive the superior court of jurisdiction over the omitted party, particularly because the omitted party was identified in the body of the petition and had been properly served. Qual. Rock Prods., 126 Wn.App. at 269-72.
| Practice Tip: | CR 10(a) covers the procedural aspects of drafting captions but you must consider substantive law, too. For example, when the parties are individuals, you should consider community property law and consult the statutes and case law for guidance as to whether both husband and wife should be named. RCW 4.08.030-.040; RCW 26.16.030; Lownsdale v. Gray's Harbor Boom Co., 21 Wash. 542, 58 P. 663 (1899). |
It is sometimes permissible to identify a plaintiff by a fictitious name; the cases suggest that in exceptional situations the requirement that all parties be named in the complaint can be overridden by a plaintiff's privacy concerns. Doe I v. Wash. State Patrol, 80 Wn.App. 296, 908 P.2d 914 (1996) (alleged perpetrator of sexual assault identified as John Doe I in public records request litigation); Doe v. Frank, 951 F.2d 320 (11th Cir. 1992) (test for permitting plaintiff to proceed anonymously is whether plaintiff has substantial privacy right that outweighs open judicial proceedings policy); Doe v. Provident Life & Acc. Ins. Co., 176 F.R.D. 464 (E.D. Pa. 1997) (listing factors that militate for and against letting plaintiff use fictitious name).
CR 10(a)(2) permits a plaintiff who does not know the name of a defendant to say so in plaintiff's pleading and then to designate the defendant by "any name." Upon discovery of the defendant's true name, plaintiff may amend the pleading accordingly. This subsection must be read in conjunction with CR 15(c), which governs when an amendment changing parties relates back to the date of the original complaint. Kiehn v. Nelsen's Tire Co., 45 Wn.App. 291, 724 P.2d 434 (1986), review denied, 107 Wn.2d 1021 (1987); see Kitsap Cnty. Fire Prot. Dist. No. 7 v. Kitsap Cnty. Boundary Review Bd., 87 Wn.App. 753, 943 P.2d 380 (1997) (applying CR 10(a)(1), CR 15, and CR 19 in appeal from Boundary Review Board decision), review denied, 134 Wn.2d 1027 (1998). Service on a named defendant will not invoke RCW 4.16.170 so as to toll the statute of limitations for additional fictitious or "John Doe" defendants unless the plaintiff describes the unnamed defendant "with ‘reasonable particularity'" before the period for filing suit expires. Bresina v. Ace Paving Co., 89 Wn.App. 277, 280, 948 P.2d 870 (1997), review denied, 135 Wn.2d 1010 (1998); Iwai v. State, 76 Wn.App. 308, 884 P.2d 936 (1994), aff'd on other grounds, 129 Wn.2d 84, 915 P.2d 1089 (1996). Local court rules should also be considered. Some counties require a showing of good cause before additional parties may be added once litigation has reached a certain stage. See King County LR 4(d); Pierce County LR 19(b); see generally CR 17-25 (addressing parties).
| Caveat: | In some cases involving claims to real property it may be impossible for the plaintiff to identify all potential defendants In such cases, RCW 4.28.150 specifies particular language to be used to describe such defendants and establishes a procedure for service by publication. |
CR 10(a)(3) permits a party to proceed against unknown heirs. In actions relating to real property, such heirs may be identified as "‘unknown heirs' of the deceased." In actions brought to determine an adverse claim, estate, lien, or interest in real property, or to quiet title to real property, unknown parties must be designated as "‘also all other persons or parties unknown claiming any right, title, estate, lien, or interest in the real estate described in the complaint herein.'" This subsection should be read in conjunction with RCW 4.28.140 and .150, which govern service by publication in actions involving unknown heirs.
(2) CR 10(b): Paragraphs; separate statements
The goal of CR 10(b) is clarity. Subsection (b) requires that all averments of a claim or defense be in separate numbered paragraphs. Subsection (b) does not expressly limit itself to CR 7(a) pleadings, but that is the only sensible interpretation.
| Practice Tip: | CR 10(b) requires that paragraphs be numbered. It does not require consecutive, Arabic numbering, but that is often the best practice. For lengthy pleadings, use of decimals can facilitate editing and clarity. For example, the fact section paragraphs can be numbered 10.1 through 10.24, the first claim paragraphs 11.1 through 11.6, and so on. You can assign roman numerals or letters to separate counts or sections of the pleading, but Arabic numbers should not be repeated. A complaint, for example, that contains three paragraph 7s (one in the "Facts" section, one in the "First Claim for Relief," and one in the "Fourth Claim for Relief") can create confusion for the responding party and for the court. Repetition also complicates efforts to adopt by reference statements from a pleading. |
Subsection (b) urges two other steps to promote clarity, but authorizes deviation from both if following them would be impractical or would detract from a clear presentation of the matters set forth. First, subsection (b) states that "as far as practicable" the contents of each paragraph shall be limited to a statement of a single set of circumstances. Second, subsection (b) states that each claim based upon a separate transaction or occurrence, and each defense other than denials, shall be contained in a separate count or a defense "whenever separation facilitates the clear presentation of the matters set forth." Federal precedent suggests that for purposes of FED. R. CIV. P. 10, the term "claim" means the group of facts that give rise to a right enforceable in court. Orig. Ballet Russe v. Ballet Theatre, 133 F.2d 187 (2d Cir. 1943).
| Comment: | CR 10(b)'s second recommended procedure (state each claim or defense in a separate count or defense) is qualified by CR 8(e)(2), which expressly permits a party to set forth "two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses." |
| Practice Tip: | When a single set of facts supports more than one basis for liability, tell your story succinctly, in narrative form, with numbered paragraphs in a "Facts" section, followed by separate counts that incorporate by reference the pertinent fact paragraphs and state the legal elements of the count or claim for relief. Separating the facts from the law makes a clearer pleading and may force an opposing party to directly admit or deny critical facts. In multiple-party cases, describe with clarity which plaintiffs are making what claims against which defendants. |
Failure to comply with subsection (b) can, in extreme circumstances, lead to dismissal of a complaint. A federal court affirmed the dismissal with prejudice of a claim that still was "largely gobbledygook" even after four amendments. Frederiksen v. City of Lockport, 384 F.3d 437, 439 (7th Cir. 2004). More typically, failure to comply with the rule will result in an order to...
