1. Denials for Lack of Information Under Federal Rule 8(b)(5) a party may deny an allegation on the ground that it “lacks knowledge or information sufficient to form a belief about the truth” of the allegation. Similar provisions exist under state codes.

But there are limits on the use of this form of denial. In OLIVER v. SWISS CLUB TELL, 222 Cal. App. 2d 528, 35 Cal. Rptr. 324 (1963), defendant denied for lack of information its existence as an unincorporated association. This was held to be an admission of defendant’s status, since the matter was “presumptively within defendant’s knowledge.” The consequences of the admission were ameliorated, however, because the issue later apparently was inserted, perhaps inadvertently, in a pretrial order. We consider the relation between the pretrial order and the pleadings in Chapter 12. When information that should be within defendant’s presumptive knowledge but is not, should defendant have the burden of stating circumstances in his answer to overcome the presumption and then deny the allegation on information and belief? In the federal system, do Twombly and Iqbal affect your answer?

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