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

2 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 –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 Q1b, 1c, 2a, 2c, 3, 4a, 6c Is it plausible that PPI acted in good faith without intent to deceive? –Optional: Glannon (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 ). What part(s) of Rule 11 would Schlictmann rely on? Amendment 3

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 4

5 History of Pleading I Writ system. 12 th – 19 th centuries –Technical, formulaic; procedure varied by writ Code pleading, 19 th -present –Supposed to be non-technical –Plead facts (but not conclusions or evidence) –Line between facts, conclusions, evidence hard to draw Notice Pleading, 20 th 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 texting” would be fact

6 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.

7 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 s, 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 much evidence to support liability, but might find it through discovery?

8 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 1 st and 5 th 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?

9 Questions on Pleading Yeazell p 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?

10 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

11 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 Qs 1-5; pp Qs 1, 2c&d –Problems on next two slides

12 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…”

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

14 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 –Judges would prefer that parties figure things out through discovery

15 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. Very rare