Agenda for 6th Class • Misc.

– Name plates out • Rule 11 examples (continued) • Answer • Intro to Amendment

1

Assignment for Next Class

• Continue drafting complaint (if you are in a plaintiff’s firm) – I will send out answer/Rule 12 motion instructions early next week • Rule 15 • Yeazell 443-56 • Made sure you understand the difference between allowing an amendment and allowing “relation back” – Hint. One of them is relevant only if the statute of limitations has run out • Questions to think about & Writing Assignment for Group 6 – Yeazell p. 443 Qs 1, 2 – Yeazell p. 448ff Qs 1, 3b, – Yeazell p. 454ff Qs 1-2, 4c, 5b 2

Last Class: Rule 11

• 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 • Research must be reasonable under the circumstances • Cannot later advocate problematic paper, but need not amend • 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 3

Would Rule 11 Sanctions Be Appropriate If …

• 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. • 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…” • 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. 4

Would Rule 11 Sanctions Be Appropriate If …

• 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 can't sue him/her for the bad breakup, but you decide to sue him/her about the scratch.

5

Responding to Complaint I

• Defendant has 2 options in responding to complaint – Motion to Dismiss (Rule 12) – 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 • Motions to Dismiss – See grounds in FRCP 12(b) 6

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 • Issues not raised in Answer or by motion are “waived” – Unless raised in amendments 7

Answer Questions

• 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, 2d, 3, 4, 6 • Is it plausible that PPI acted in good faith without intent to deceive?

8

Amendment

• Amendment necessary because neither plaintiff nor defendant has all information at beginning of suit – Info gathered in discovery may require changes to complaint or answer – If fail to amend, may not be able to present relevant evidence at trial • Rule 15(a). Amendment is easy – (a)(1). No need to ask permission of court if within 21 days of service or Answer or Rule 12(b) motion – (a)(2). Court should give permission “freely … when justice requires.” • Key factors – Timing – Fault – Prejudice – How much worse off is defendant than if amended pleading had been original pleading?

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Relation Back

• Relevant only if statute of limitations has run out • 15(c)(1)(B). If not changing the party – Relation back if same transaction or occurrence • 15(c)(1)(c). If changing party – 3 part test • Same transaction or occurrence • Within 120 days of filing of complaint (plus extensions), defendant had actual notice of lawsuit (even if did not receive service of process) • Within 120 days of filing of complaint (plus extensions), defendant knew or should have known that plaintiff made a mistake about identity of proper defendant 10