Rule 2.One Form of Action

(1973)

“Merger” of Law and Equity, refers only to the procedure involved, i.e., the manner of framing and trying the issues, and the type of relief. “Merger” does not alter the traditional substantive distinctions between legal and equitable remedies. Although the once separate procedures have been merged, the right to equitable remedies still exists; now, however, a party may seek legal and equitable relief simultaneously. All issues in a dispute, legal or equitable, may now be tried in the same form and in the same action. Grauman v. City Company of New York, 31 F.Supp. 172 (S.D.N.Y.1939). Unified procedure takes away no rights in either law or equity; rather, it merely affords a more simple and effective way of enforcing such rights.

Rule 2 also abolishes distinctive “forms of action”. Henceforth all litigation, whatever the claimed basis for relief, will be known as “civil action”. A plaintiff need only plead those facts necessary to show that he is entitled to a relief which the law recognizes; he need not frame his action into one of several possible forms of action. In Nester v. Western Union Telegraph Co., 25 F.Supp. 478, 481 (S.D.Cal.1938) the court discussed the effect of Federal Rule 2:

Under the liberal rules of reformed procedure, a plaintiff is entitled to recover not on the basis of allegations of damages or of his theory of damages but rather on the basis of the facts as to damages shown in the record.... Differences in the forms of claims being abolished, the plaintiff should be denied relief only when under the facts proved, he is entitled to none.

Rule 2 relates to several other rules. Rule 8(a) allows a party to demand “relief in the alternative or of several different types”; Rule 8(e) allows a party to “state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds;” Rule 18(a) allows a party to join “as many claims, legal or equitable as he has against an opposing party”; Rule 13(a) demands that a pleader with certain exceptions, assert as a counterclaim “any claim” which the pleader has against the opposing party if it arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim; Rule 13(b) permits a pleader to assert as a counterclaim “any claim” regardless of its connection with the opposing party's claim.

Because Massachusetts previously maintained a separate procedural system for actions at law and suits in equity, the merger of the two systems brings about a substantial change in existing practice.

Rule 2, together with Rule 13(a), makes the assertion of a legal or equitable counterclaim compulsory if it arises out of the same transaction or occurrence (subject to the specific exceptions of Rule 13(a)), regardless of the nature of the counterclaim.

Rule 2 abolishes the previously existing tripartite division of personal action: (1) Contracts, including assumpsit, covenant, debt; (2) Tort, including trespass, trespass on the case, trover; and (3) Replevin.

The kind of relief previously afforded by either legal or equitable replevin is available under Rule 2. However the right of the plaintiff in a replevin action to obtain immediate possession of the property by the delivery of a bond is abolished.

For a complete discussion of the effect of the law-equity merger on the right to a jury trial see the Reporter’s Notes to Rule 38.