Legal Memorandum: Alternative Theories of Recovery

Issue: Whether a plaintiff may plead inconsistent facts in support of alternative theories of recovery.

Area of Law: Litigation & Procedure
Keywords: Inconsistent facts; Alternative pleading
Jurisdiction: Federal, Minnesota
Cited Cases: None
Cited Statutes: Fed R. Civ. P. 8(d)(3);
Date: 08/01/2012

Such alternative pleading is proper:

[U]nder the federal rules, a plaintiff may plead inconsistent facts in support of alternative theories of recovery.  The right of a plaintiff to try his case on alternate theories has uniformly been upheld in the federal courts and plaintiff cannot be required to elect upon which theory to proceed.  Fed R. Civ. P. 8(d)(3).  At a later stage it may be necessary for plaintiff to elect a theory, but at the pleading stage it is not.

Kinetic Co. v., Medtronic Inc., 672 F. Supp. 2d 933, 948 (D.Minn. 2009) (quotation marks and citations omitted). 

Thus, a pleader may allege both that a certain obligation is contained within a particular contract and, also, that it is not.  Lyon Fin. Servs., Inc. v. MBS Mgmt. Servs., Inc., No.06-4562 (PJS-JJS) (D. Minn. Sept. 27, 2007) (J. Schiltz).  As the Court stated in Lyon Financial:

ABM then argues that, because the lease contracts are valid, MBS cannot assert a claim for unjust enrichment.  This argument is answered by Rule 8(e)(2) [now 8(d)(3)], which provides in relevant part, “A party may also state as many separate claims or defenses as the party has regardless of consistency or whether based on legal, equitable, or maritime grounds.”  ABM may accordingly plead some claims that are premised on a valid contract and others that are not.  The fact that these claims may be inconsistent with one another does not make them susceptible to a motion […]


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