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Using as an affirmative defense, which of the statements would be better?

Plaintiff has failed to state a claim upon which relief can be granted.

or

Plaintiff fails to state a cause of action against the defendant.

I think the first one is preferable. The first one states that there's no basis for the cause of action. I guess one example would be if they sued for breach of contract but didn't prove a contract or agreement between the parties existed. They haven't proven the basis for a breach of contract. At least that's how I understand it.

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I think the first one is preferable. The first one states that there's no basis for the cause of action. I guess one example would be if they sued for breach of contract but didn't prove a contract or agreement between the parties existed. They haven't proven the basis for a breach of contract. At least that's how I understand it.

Thank you, BV! :)++

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Using as an affirmative defense, which of the statements would be better?

Plaintiff has failed to state a claim upon which relief can be granted.

or

Plaintiff fails to state a cause of action against the defendant.

I would say neither, because they are not really affirmative defenses.

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I think the first one is preferable. The first one states that there's no basis for the cause of action. I guess one example would be if they sued for breach of contract but didn't prove a contract or agreement between the parties existed. They haven't proven the basis for a breach of contract. At least that's how I understand it.

Plaintiff has failed to state a claim upon which relief can be granted, is based on Federal Rule 12(B). While it is normally a weak defense by itself, but sometimes if you are able to exclude evidence, you can file a motion to dismiss based on this affirmative defense.

Example: if no contract is included and they are suing for breach of contract. If no contract or agreement is produced during discovery, you can move for a dismissal on rule 12(B), failure to state a claim.

And with all affirmative defenses, if you don't use it, you lose it. So use it.

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I think BV is right on this - http://www.creditinfocenter.com/legal/failure-state-claim.shtml

Maybe something along the lines of "Plaintiff failed to state a claim upon which relief can be granted. Plaintiff has brought suit against Defendant as "other/contract", but has not provided the contract."

Or how could this be said?

Edited by Linda7
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lheart, just saw your reply! Would it be alright to have it listed as I posted in the post above? They have sued and on the complaint it has "other/contract", but they did not include the contract or the agreement. TIA!

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Maybe I should of clarified my response. I would always state failure to state a claim for which relief may be granted as an affirmative defense or prayer for dimissal. Although, as noted by Iheart it is a very weak defense and if Motioned for ruling is viewed as a MSJ and everything alleged on the complaint is viewed as true as stated.

However, I do disagree on one point, Failure to State a Claim for Which Relief May be Granted, is never waived as a defense even if it is not listed in the affirmative defenses.

Normally, I use it like this:

WHEREFORE, Defendant prays the Honorable Court dismiss Plaintiff's Complaint for Failure to State a Claim for Which Relief May be Granted.

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