Pleading in the Alternative — Judicial Admissions

Alternative & Inconsistent Pleading. Alternative and inconsistent pleading requires that you plead in the alternative. Mere inconsistency can be fatal. As the Ninth Circuit put it in Maloney v. Scottsdale Ins. Co., 2007 U.S. App. LEXIS 26639 (9th Cir. Nov. 14, 2007): “The Federal Rules of Civil Procedure allow parties to plead inconsistent factual allegations in the alternative. See Fed. R. Civ. P. 8(e)(2). The inconsistent allegations in the instant complaint, however, were not pleaded in the alternative; they were expressly incorporated into each cause of action.... Thus, the complaint failed to state a claim upon which relief could be granted, and the district court properly dismissed the complaint under Rule 12(b)(6).”

Judicial Admissions. A reminder: “Judicial admissions apply only to factual statements, not statements of law.” (In contrast, judicial estoppel may apply to statements of law, but that’s not this case.)

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