Drafting complaints and incorporating the preceding allegations

Drafting complaints and incorporating the preceding allegations

Almost every complaint I read includes language incorporating all factual allegations into each count. You know the language it’s the first sentence of each count and states something along the lines that “Plaintiff incorporates the allegations contained in the preceding paragraphs.” Have you ever wondered if that language is really necessary? Wonder no more. It saved a plaintiff’s claim in a recent Fourth Circuit opinion.

In Adkins v. Crown Auto Inc., 2007 U.S. App. (4th Cir. May 18, 2007), the plaintiff bought a car that had been “clipped” together from remnants of two separate wrecked vehicles. (You learn so much as a lawyer!) The two separate wrecked vehicles had different mileages. Under Virginia law, however, the title of a “clipped” car includes only the total mileage of the front half of the vehicle. In the Statement of Facts in her complaint, the plaintiff alleged, among other things, that the seller failed to disclose that the vehicle was in fact two cars that had been poor welded together and had suffered severe damage. Under the heading of “Actual Fraud,” the plaintiff incorporated all of the preceding allegations and also alleged that the seller made false representations about the true mileage of the vehicle and that she relied on these false representations.

At trial, the seller argued that the plaintiff’s fraud claim was based solely on the mileage issue and not on any representations about the clipping. The district court and the Fourth Circuit rejected this argument because the allegations in the “Actual Fraud” section, together with the other allegations in the Statement of Facts that were incorporated by reference, sufficiently stated a claim of fraud under the mileage-and-clipping theory.

What do we learn from this interesting case? First, that language incorporating the preceding allegations of the complaint is useful and should probably be included in every complaint. Second, when you are defending a fraud claim, always ask the plaintiff (in interrogatories and in depositions) to list and explain the specific misrepresentations on which she is relying. Third, pull out the complaint every once in a while and review it. Especially after some discovery, Plaintiffs may see a need to amend and defendants may see new defenses.

I read about this case in another blog and cannot remember which one. So thanks to someone and apologies for not remembering who!

Author: international