June 03, 2014 Articles

Defamation Per Se: Be Prepared to Plead (and Prove!) Actual Damages

The task is necessary even when liability is legally established.

By Andrew Bossory

Complaints for civil liability must include a demand for the relief sought, i.e., damages. For example, the Federal Rules of Civil Procedure require that a plaintiff make a “short and plain statement of the claim showing that the pleader is entitled to relief” and a “demand for the relief sought . . . .” Fed. R. Civ. P. 8(a)(2)–(3). Accordingly, the next logical step on the road to recovery is proving the damages suffered; courts hold litigants to this requirement. “Assuming plaintiff prevails in establishing defendants’ negligence and causation, he must still prove the amount of his actual damages resulting therefrom.” Alva v. Hurley, 593 N.Y.S.2d 728, 730 (N.Y. 1993). The task of proving damages is necessary even when liability is legally established, such as in the case of a default judgment. See, e.g.,Fed. R. Civ. P. 55(b)(2)(B).

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