In law, a rejoinder is a defendant’s formal written response to the plaintiff’s reply during the pleading stage of a lawsuit. It comes from the common law system, where plaintiff and defendant took alternating turns filing increasingly specific documents until the dispute was narrowed down to a few clear issues for trial. The rejoinder was the defendant’s second responsive pleading, aimed at whatever new material the plaintiff raised after the defendant’s initial plea. In modern U.S. federal courts, the rejoinder is no longer a recognized filing, though a narrower device called the sur-reply sometimes fills the same role in motion practice.
Where the Rejoinder Sat in Common Law Pleading
Common law pleading moved in a strict back-and-forth. The plaintiff filed a declaration setting out the claim. The defendant answered with a plea. The plaintiff then filed a replication, responding to any new defense. The defendant’s response to that replication was the rejoinder.
The chain did not necessarily stop there. If the rejoinder itself introduced new material, the plaintiff could file a surrejoinder, the defendant could follow with a rebutter, and the plaintiff could close with a surrebutter. Each round was meant to sharpen the dispute. In practice, the sequence became unwieldy, and parties often used it to bury opponents in technical filings before anyone reached the merits.
What a Rejoinder Could Do
A rejoinder gave the defendant a chance to answer something the plaintiff had just raised for the first time in the replication. That might be a new factual assertion, a legal theory not present in the complaint, or an argument meant to undercut the defendant’s affirmative defense. The defendant could deny the new material, explain it, or raise a defense that specifically answered it.
The scope was narrow by design. A rejoinder could not introduce fresh claims or defenses unrelated to the replication, and it had to stay consistent with the defendant’s earlier plea. Courts treated a rejoinder that strayed from the replication, or that contradicted the original plea, as defective.
Why You Won’t File a Rejoinder in Federal Court
The Federal Rules of Civil Procedure, adopted in 1938, replaced the old pleading chain with a short, closed list. Under Rule 7(a), only seven pleadings are allowed: a complaint, an answer to a complaint, an answer to a counterclaim, an answer to a crossclaim, a third-party complaint, an answer to a third-party complaint, and a reply to an answer if the court orders one.1Legal Information Institute. Federal Rules of Civil Procedure Rule 7 – Pleadings Allowed; Form of Motions and Other Papers The rejoinder is not on that list, and neither are the surrejoinder, rebutter, or surrebutter.
Even the reply is not available as of right. A plaintiff can file one only when the court specifically orders it. In practice, the standard exchange in federal court is a complaint followed by an answer, after which the issues are considered framed and the case moves into discovery.
The Sur-Reply as the Closest Modern Equivalent
The need the rejoinder once served has not entirely disappeared. During motion practice, a party sometimes wants to respond to arguments raised in the other side’s last filing. Modern courts handle this through a sur-reply.
A sur-reply is not available as of right. A party has to ask the court for permission, and judges grant it only when the reply raised genuinely new arguments or evidence the requesting party has not had a chance to address. Many judges deny these requests as a matter of course, especially when the request looks like a wish for the last word.
When a sur-reply is allowed, its scope is tightly limited in the same way a common law rejoinder’s was. It can respond only to what the reply contained and cannot introduce unrelated issues or evidence. In patent proceedings before the Patent Trial and Appeal Board, this limit is written into the regulation: a sur-reply may only respond to arguments in the corresponding reply and generally cannot include new evidence beyond cross-examination transcripts.2eCFR. 37 CFR 42.23 – Oppositions, Replies, and Sur-Replies Federal district courts apply the same principle through local rules and individual judge preferences, though the specifics vary.
Rejoinder Is Not the Same as Surrebuttal
The written pleading called a rejoinder is often confused with the trial phase called surrebuttal. They serve a similar conceptual purpose, but they operate at completely different points in a case.
A rejoinder is a written filing during the pleading stage, before discovery and trial. Surrebuttal happens in the courtroom, after the plaintiff has put on a rebuttal case. During surrebuttal, the defendant presents witnesses or evidence to counter what the plaintiff introduced in rebuttal, and the rules of evidence, not the rules of pleading, control what comes in. If you see “rejoinder” used in a trial context, the writer is almost certainly referring to surrebuttal.
Where the Term Is Still Used
Although the rejoinder has fallen out of U.S. federal practice, the term is still live elsewhere. Some U.S. state courts use it in specific contexts, particularly family law or administrative proceedings where local rules allow additional responsive filings beyond what federal practice permits. India’s Code of Civil Procedure continues to recognize the rejoinder as a pleading step when the court permits one.
You will also see “rejoinder” in international arbitration, where the written exchange often follows the older pattern: statement of claim, statement of defense, reply, and rejoinder. Arbitration tribunals have more flexibility than federal courts to allow additional rounds, and the extended back-and-forth that common law courts abandoned still has a use when parties from different legal traditions need a structured way to narrow their disagreements.