Cause of Action
Date: Mon, 02/02/2009 - 16:46
#6 was - Plaintiff fails to state a cause of action against the defendant
#7 -was - Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action
My states CRCP Rules 8 under Anotations says:
Plaintiff is not required to set out "a cause of action" under the rules of civil procedure. Smith v. Mills, 123 Colo. 11, 225 P.2d 483 (1950).
Theories of action are no longer significant. Continental Sales Corp. v. Stookesbury, 170 Colo. 16, 459 P.2d 566 (1969).
The rules of civil procedure were intended to deemphasize the theory of a "cause of action" and to place the emphasis upon the facts giving rise to the asserted claim. Bridges v. Ingram, 122 Colo. 501, 223 P.2d 1051 (1950); Hutchinson v. Hutchinson, 149 Colo. 38, 367 P.2d 594 (1961).
One does not stand or fall on a "theory" or "cause of action", as obtained under the practice prior to adoption of the rules. Hutchinson v. Hutchinson, 149 Colo. 38, 367 P.2d 594 (1961).
The basic theory of plaintiff's pleading under the present rule is that the transaction or occurrence is the subject matter of a claim, rather than the legal rights arising therefrom. Brown v. Mountain States Tel. & Tel. Co., 121 Colo. 502, 218 P.2d 1063 (1950).
Do these rules mean that:
#6 - The plaintiff is not required to state facts in a cause of action? or
#7 - Have to have legal standing to bring action?
Their cause of action is a breech of contract. Their facts lead
Their cause of action is a breech of contract. Their facts leading to the cause of action will be that you had an account, didn't pay, etc etc.
Usually their cause of action and the facts are stated in the complaint.
I personally doubt you would get anywhere using your #6. The "cause of action" defense is more something a creditor would use against a debtor who's suing them. For example, if you were mad that a creditor (OC) called you at work, and so you sued them citing the FDCPA. Well, FDCPA doesn't apply to an OC, so they could respond that you failed to state a cause of action for which the court can provide relief, because the laws you're claiming they broke actually don't apply to them.
For you to use that as a defense, would basically be saying that a breech of contract is not a valid reason to sue somebody. I think that a judge would most likely strike that defense.
Your #7 may be valid, if they really don't have legal standing.
Thank you Mr. Cruncher. I must amend out #6. It doesn't fit.
Thank you Mr. Cruncher. I must amend out #6. It doesn't fit.
