Yes, Virginia, Parties Can Plead in the Alternative.

You would think after forty-seven thousand gazillion years of jurisprudence, litigators would be savvy enough to not argue the same redundant or pointless things over and over again. Yet, like the sunshine of a new day, they come back again bright and fresh in a spankin’ new motion, as if there’s no context, or history, or….caselaw….

Case in point:  pleading in the alternative.

Here’s Judge Altonaga having to — once again — explain how this whole pleading thing works:

Under the Federal Rules of Civil Procedure, a Plaintiff may plead claims in the alternative. See FED. R. CIV. P. 8(d);3 United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir. 2009) (“Rule 8(d) of the Federal Rules of Civil Procedure expressly permits the pleading of both alternative and inconsistent claims.”). A party need not use any special words to properly plead in the alternative; it only must be “‘reasonably inferred that this is what [it was] doing.’” G-I Holdings, Inc. v. Baron & Budd, 238 F. Supp. 2d 521, 536 (S.D.N.Y. 2002) (alteration in original) (quoting Holman v. Indiana, 211 F.3d 399, 407 (7th Cir. 2000)). Breach-of-contract and declaratory-relief claims may be pleaded alternatively. See Great Am. Ins. Co. v. Sch. Bd. of Broward Cnty., Fla., No. 09-61636-CIV, 2010 WL 4366865, at *24 (S.D. Fla. July 30, 2010); In re Andrew Velez Const., Inc., 373 B.R. 262, 275 (Bankr. S.D.N.Y. 2007). If any inconsistencies exist, they can be dealt with at summary judgment or through jury instructions. See Formula LLC v. RSUI Indem. Co., No. 09-60592-CIV, 2009 WL 2342455, at *3 (S.D. Fla. July 28, 2009).


Somebody made her write this one more time?

Like Droz says to Gutter in PCU, “don’t be that guy.”

Don’t be that guy.