Forcing A Reply To An Answer Under Rule 7(a)(7) - When And How To Do So.
Normally, the Answer to a Complaint concludes the pleadings phase of a case. A response to a counterclaim or crossclaim asserted in an Answer is called a “Reply to Counterclaim(s)” or “Reply to Crossclaim(s)” pursuant to F.R.C.P. 7(a)(3). However, in some circumstances, a court may direct or permit a Reply to be filed to an Affirmative Defense raised in an Answer, or even to the Answer or Reply to Crossclaims or Counterclaims. (F.R.C.P. 7(a)(7) permits a reply to an answer “if the court orders one”).
A court may authorize a Reply on its own, or by the request of any party through a motion. The legal standard to authorize a Reply is a “clear showing of necessity” or “extraordinary circumstances of a compelling nature.” Garner v. Morales, 237 F.R.D. 399, 400 (S.D. Tex. 2006).
Replies to Affirmative Defenses are generally not permitted, with certain (expanding) exceptions. Courts have been especially willing to permit a Reply as to the Affirmative Defense of qualified immunity (and other immunities, as opposed to mere defenses), as this may facilitate an early determination of whether the Plaintiff can overcome this defense. Schultea v. Wood, 47 F.3d 1427, 1433-1434 (5th Cir. 1995) (en banc).
Certainly, a party should not attempt to file an unauthorized Reply, as at least one court has found the contents of that pleading can constitute an admission against the interests of the party filing it. Berger v. State Farm Mut. Auto Ins. Co., 291 F.2d 666, 668 n.1 (10th Cir. 1961).
That said, a true Reply to an Answer under F.R.C.P. 7(a)(7) is rarely granted. A few recent examples where it was include Payne v. City of Hammond, Case No. 15-1022 (E.D. La. Mar. 14, 2016) (addressing qualified immunity); Hernandez v. Horn, Case No. C-09-163 (S.D. Tex. Oct. 25, 2011); Blevins v. Upton, Case No. 4:14-cv-1028-Y (N.D. Tex Mar. 26, 2019) (qualified immunity).
Interestingly, the most common form of a motion pursuant to F.R.C.P. 7(a)(7) is not a motion seeking leave to file a reply for the party you represent, but a motion seeking an order of the Court to force the opposing party to file a reply (for example, where one’s answer asserts a qualified immunity defense, a motion seeking an order requiring Plaintiff to allege facts specific to the qualified immunity issue subject to Rule 11, rather than being permitted to rest on the Rule 12(b)(6) presumption of truth of properly alleged facts).
The Reply to an Answer may be a rarity, but where one’s client has a genuine immunity defense, this opportunity to force a reply must not be missed.