Transcript Slide 1

Agenda for 3rd Class
• Misc.
– Name plates out
– Slide handout
– Lunch today, 12:30 outside Rm. 433
– Seating charts
– Blackboard now working for everyone?
– Model answers working for Mac?
• Pleading continued
– Iqbal
• Rule 11
• Intro to Answer
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Assignment for Next Class
• Rule 11
– Read A Civil Action through p. 119
– Questions to think about & Writing Assignment
• Questions on next slide
• Answer
– FRCP 8(b)&(c), 11(b)(4); Form 30
– Yeazell 426-38
– 3 Blackboard questions on Answer
– Questions to think about & Writing Assignment
• Briefly summarize Zielinsky v PPI
• What does Zielinsky mean by “defendant is estopped from denying
agency”
• What rule authorized the court to do this?
• Yeazell pp. 436-7. Q1b, 1c, 2a, 2c, 3, 4a, 6c
• Is it plausible that PPI acted in good faith without intent to deceive?
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– Optional: Glannon 659-74 (You can ignore material about counterclaims)
Questions on A Civil Action
• If Cheeseman was correct that there was no evidence that TCE and the
other relevant chemicals cause leukemia, why didn’t he file a 12(b)(6)
motion to dismiss the complaint?
– Would a Rule 12(b)(6) motion be granted today?
• Answer the following questions both under the current Rule 11 and under
the rule as it exist. In 1982, Rule 11 read, in relevant part:
– Every pleading of a party represented by an attorney shall be signed by
at least one attorney of record …. The signature of an attorney
constitutes a certificate by him that he has read the pleading; that to the
best of his knowledge, information, and belief there is good ground to
support it; and that it is not interposed for delay. …. For a wilful violation
of this rule an attorney may be subjected to appropriate disciplinary
action.
• What part of Rule 11 did Cheeseman think Schlichtmann had violated?
– Is the argument more plausible under the current rules or under the 1982
rules? How were the consequences of violation different in 1982?
• Could Schlichtmann have made a plausible Rule 11 motion? (See pp. 903
94). What part(s) of Rule 11 would Schlictmann rely on?
Review of Haddle
• Complaint ordinarily must plead facts relevant to each element of the cause
of action
– Rule 8 does not require “facts,” just “statement of claim”
– But plaintiff ordinarily plead facts even before Iqbal
• Iqbal now probably requires fact pleading
• So, in order to plead, one must understand substantive law
– Parse § 1985(2)
– Understand case law about § 1985(2)
– May raise difficult issues about what valid claim requires
• 12(b)(6) can lead to resolution of difficult legal questions
– Supreme court resolves meaning of “property” in § 1985(2) in Haddle
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History of Pleading I
• Writ system. 12th – 19th centuries
– Technical, formulaic; procedure varied by writ
• Code pleading, 19th-present
– Supposed to be non-technical
– Plead facts (but not conclusions or evidence)
– Line between facts, conclusions, evidence hard to draw
• Notice Pleading, 20th century
– Eliminated distinction between facts and conclusions
– 8(a) “statement of CLAIM” not facts
• 9. Only a few matters must be plead “with particularity” (e.g. fraud or
mistake)
– Form 11 is example of notice pleading: “defendant negligently drove a
motor vehicle”
• “negligently” is usually considered a legal conclusion
– “drove dunk” or “drove 10 miles over speed limit” “or “drove while
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texting” would be fact
History of Pleading II
• Notice Pleading (continued)
– Drafters of FRCP wanted to resolve issues on merits (facts) rather than
on pleading technicalities
– Drafters thought it best for nearly all cases to go to discovery
• Unless law meant success on merits was impossible
– They didn’t realize how expensive, time-consuming, and intrusive
discovery would become
– Modern pressure to tighten pleading standards stems from view that it is
unjust, unfair, and inefficient to subject defendants to expensive
discovery if plaintiff’s case likely lacks merit
• Goal is to use pleading and 12(b)(6) to make sure only plausibly
meritorious cases get to discovery
– Problem: unclear whether can tell from complaint whether plaintiff’s case
likely lacks merit
• If defendant is concealing evidence, case may have merit, even
though plaintiff has little evidence at outset.
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History of Pleading III
• Iqbal
– Back to requirement to plead facts?
• Why matters
– Notice pleading allows weak claims to get to discovery
• Discovery is very expensive
• So fact pleading can same money and time
– Fact pleading means that it may be impossible for injured party to bring
claim, because cannot know facts without discovery
• Suppose you think your suppliers have conspired to raise prices in
violation of the antitrust laws. You know they raised their prices at
the same time, but without access to emails, depositions, and other
discovery, you have no proof. Insufficient to plead “defendants
conspired,” because that is conclusion, but don’t know facts. Rule 11
says complaint can’t make up facts. (Twombly)
• Similar issues with tobacco fraud or employment discrimination
– Policy question: Should people be able to sue when don’t have much7
evidence to support liability, but might find it through discovery?
Iqbal
• Complaint alleged that AG Ashcroft and FBI Director Mueller “knew of,
condoned, and willfully and maliciously agreed to subject” Iqbal to kicking,
punching, and other harsh conditions of confinement “as a matter of policy,
solely on account of [his] religion, race, and/or national origin…” in violation
of 1st and 5th Amendments.
– Those are “bare assertions… formulaic recitations of elements of a
constitutional discrimination claim… conclusory and not entitled to be
assumed true”
– Without those allegations, complaint is implausible, because complaint
does not allege facts which plausibly imply discriminatory motive
• 2 step test
– Exclude all conclusory allegations
– Examine rest of complaint for plausibility
• Are there factual allegations relating to each element?
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Questions on Pleading
• Yeazell p. 399-400 Q2
• Questions on last page of Pleading Handout
• After Iqbal, would you expect defendants to win a greater or
lesser percentage of 12(b)(6) motions?
• If you were on the Supreme Court, would you vote to overturn
Iqbal? Why or why not?
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Rule 11
• Basic truthfulness is not just matter of ethics, FRCP provides sanctions
• 11(b)(1). No improper purpose
• 11(b)(2). Legal claims warranted by existing law or non-frivolous argument to
change the law
• 11(b)(3). Factual allegations have evidentiary support or will likely have
evidentiary support after discovery
– In latter situation, pleader prefaces them by “on information and belief”
• Sanctions
– In discretion of judge
– Money to court, money to opposing side, non-monetary (apology, etc.)
– Monetary penalties limited to what necessary to deter repetition
– Imposed on lawyer and/or client, except for 11(b)(2)
• Opposing part has 21 days to withdraw paper before motion for sanctions
filed with court
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Rule 11 (cont.)
• Judge may order sanctions without motion, but must issue show cause order
first
– Cannot order sanctions after settlement or voluntary dismissal
• Sanctions can be ordered on account of things not in complaint
– Complaint need not cite case law or statute, but sanctions if lawyer does
not have case law, statute or other authority to back up claims
• Assignment for today
– Briefly summarize Walker v Norwest and Christian v Mattell
– Yeazell pp. 415-6. Qs 1-5; pp. 419-20 Qs 1, 2c&d
– Problems on next two slides
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Would Rule 11 Sanctions Be Appropriate If …
• You are externing in a legal aid clinic. A case comes in. The statute of
limitations runs out in 3 days. Ordinarily that is enough time to research the
issue, but you have a paper due in 3 days as well. So you skimp on
research. It turns out that the law is dead against you.
• Lindsey is a tenant in public housing. The government brings an eviction
suit claiming she hasn't paid rent. Lindsey comes to you at legal aid Clinic.
She says the government never tried to reach her before filing suit and
shows you the canceled check. A canceled check indicates that the check
was received and cashed or deposited.
• Plaintiff comes in and says that defendant ran stop light and bashed into her.
You check the police report, and it says that 5 witnesses swore that plaintiff
was the one who ran the light. The plaintiff admits that is true, but says she
wants to sue anyway so she can get a small settlement. You decide that
you cannot, in good faith, allege in the complaint that defendant ran the stop
light, so you decide to be very vague and merely allege “defendant operated
vehicle negligently…”
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Would Rule 11 Sanctions Be Appropriate If …
• Prof. Bice writes a scathing article criticizing a recent Supreme Court
decision. You read the article, and, on behalf of a client, you file a suit which
you can win only if the Supreme Court reverses itself. Your complaint cites
both the Supreme Court decision and Prof. Bice’s article.
• Same as previous question, except that you do not cite the Supreme Court
decision and Prof. Bice’s article in your complaint.
• Heal the Bay comes to you and says, “We need injunction now. We just
found out that the sewage treatment plant in Santa Monica is planning to
release massive quantities of dioxin into the bay in two hours.” You
immediately rush to court and file for a TRO. A TRO (temporary restraining
order) is an injunction issued by a judge on short notice in emergency
circumstances, often without an opportunity for the defendant to respond.
The next day, after the injunction has issued, you learn that Heal the Bay
was only responding to a false rumor.
• Your ex-boyfriend/girlfriend scratches your 1995 Ford Escort at an
intersection. You don't care about the scratch, but you are really mad at
him/her for the emotional torture he/she put you through. Of course, you
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can't sue him/her for the bad breakup, but you decide to sue him/her about
the scratch.
Responding to Complaint I
• Defendant has 2 options in responding to complaint
– Motion to Dismiss (Rule 12) OR Answer
– If files motion to dismiss first, and granted
• No need to file answer (at least until / unless plaintiff files amended
complaint)
– If files motion to dismiss first, and denied
• Defendant must file answer
– Any defense in motion to dismiss can be asserted in answer instead
• If in answer, not called “12(b)(6)” or “12(b)(5)”
• Difference between motion and answer
– Motion asks the court to do something
– Answer just preserves right to raise later on and to do discovery on issue
• Motions to Dismiss -- See grounds in FRCP 12(b)
• Motion for more definite statement 12(e)
– Rarely granted
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– Judges would prefer that parties figure things out through discovery
Responding to Complaint II
• Answer
– Must admit or deny all allegations in complaint
• Part by part, clause by clause, phrase by phrase
• Or state lack information to admit or deny
• General denial is very rare
• Admissions are powerful.
– Assumed true; Plaintiff does not have to prove at trial
– Assert defenses in FRCP 12(b)
– Assert affirmative defenses
• See 8(c ) (1)
• May be others. Need to consult substantive law
– Rule 11 applies
• Motion for judgment on the pleadings. Rule 12(c)
• Appropriate when, taking all the facts in the answer as true, the plaintiff
would be entitled to judgment.
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• Very rare