1 Agenda for 2nd Class Misc. –Nameplates out –Handouts Slides Pleading Handout –If you have extra handouts or sign up sheet, pass them on or give them back to me –Lunch Sign up for next week A-E. One slot opened up for today lunch Today, 12:30, Outside Rm 433, bring your lunch –Everyone should have received s from me Service of Process & Due Process (cont.) Service under FRCP Complaint and Motion to Dismiss History of pleading Intro to Iqbal

2 Assignment for Next Class I Complaint and Motion to Dismiss (continued) FRCP 9, 10, 12(e); Forms 7, 10, 11 Yeazell pp Pleading Handout Questions for next class and Writing assignment for Group 2 –Questions on last page of Pleading Handout –Yeazell p Q2 –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? –How would the Haddle complaint be analyzed after Iqbal? What allegations would be ignored as conclusory? Do the remaining allegations present a plausible claim?

3 Assignment for Next Class II: Rule 11 FRCP 11; Yeazell Background –Subject matter jurisdiction 2 basic reasons to be in federal court: federal question and diversity of citizenship –If more than 2 parties, need complete diversity No plaintiff can be a citizen of the same state as any defendant OK: CA v. MA; CA & NV v. MA & CT; SD v MN & MN Not OK: CA v CA; CA & NV v. MA & CA; SD v. MN & MN & SD –Federal question jurisdiction established by pleading violation of federal statute, even if it turns out that facts do not support 3 Blackboard Questions on Rule 11 Questions to think about & Writing Assignment for Group 2 –Briefly summarize Walker v Norwest and Christian v Mattell –Yeazell pp Qs 1-5; pp Qs 1, 2c&d, –Hypos on next 2 pages For M 9/8. A Civil Action (See website for pages & questions)

4 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…”

5 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.

6 Last Class Mostly about reading a case carefully –Very important to understand Who parties are Who won at each stage of proceedings and why Will help you in all classes, especially in Civil Procedure 3 factors to consider in evaluating constitutionality of service of process –Probability of actual notice Compare probability under method at issue to alternative –Cost of notice Compare cost of method at issue to alternatives –Stakes Method is unconstitutional if there is an alterative method that can achieve a higher probability of actual notice at reasonable additional cost (or lower cost) considering the stakes. When more is at stake, higher costs are reasonable.

7 Greene v. Lindsey Questions II 9) Suppose you park your car in unapproved spot on the USC campus. A USC Transportation Services employee tacks a notice on your car stating that you must move it within 24 hours or it will be towed. You don't see the notice in time, and USC tows your car. You file suit in federal court arguing that USC violated your Due Process rights. Are you likely to win? Be sure to think of arguments both for why you might win and for why you might lose. Which is more persuasive?

8 Greene v. Lindsey Questions III 10) According to government records, Jones, a homeowner, failed to pay property taxes on her home for several years. According to statute, if a homeowner has not paid her taxes for several years, the government has the right to sell the property at a tax sale. The government notified Jones of the planned tax sale by sending a certified letter addressed to her at her home. No one was home to sign for the letter, so the postal carrier left a sticky-note on her door advising her that a certified letter was being held for her at the post office. No one claimed the letter at the post office, so the letter was returned to the government office that sent the letter. The government proceeded to sell Jones’s property. Has the government violated Jones’s constitutional rights?

9 Greene v. Lindsey Questions IV 11) Dusenbery was arrested and convicted for various drug offenses. According to statute, cash or other property that was acquired through illegal drug sales is forfeit to the U.S. government. After Dusenbery was incarcerated, the government initiated forfeiture proceedings regarding more than $21,000 in cash that it found at Dusenbery’s house. The government attempted to notify Dusenbery of the forfeiture proceedings by mailing a certified letter addressed to him at the prison where he was being held. A prison official signed for the letter, and the prison had procedures for delivering mail to prisoners. It is unclear whether the procedures were followed and whether the letter was ever delivered to Dusenbery. Since Dusenbery did not contest the forfeiture, his money was turned over to the U.S. Treasury and spent on student scholarships. Has the government violated Dusenbery’s constitutional rights?

10 Service of Process under FRCP 4(c)(1). Summons and complaint served together –Summons (Form 3, p. 70); Complaint (Forms 10-11, pp ) 4(c)(2). Service by anyone 18 or older not a party 4(e). Service on individuals by –(1) method allowed by state law, or –(2) delivering copy personally or leaving copy at home with person of suitable age living there 4(h)(1) Service on corporations by (A) method allowed by state law, or (B) delivery to officer, managing or general agent, agent authorized to receive service –Officer = very high ranking person, e.g. CEO, Secretary, Treasurer –State law usually requires designation of someone to receive service »Names and addresses on website: All methods must be constitutional Waiver procedure in 4(d) seldom used, because defendant gets 60 days to answer complaint, rather than ordinary 21

11 Other Relevant FRCP Provisions 1. Rules “construed … to secure the just, speedy, and inexpensive determination of every … proceeding” 12(b)(4). Motion to dismiss for “insufficient process” –Defect in summons (rare) –Plaintiff can refile (start over) 12(b)(5). Motion to dismiss for “insufficient service of process” –Plaintiff can refile 55. Default judgment –If defendant fails to respond to summons or otherwise defend the case, court may enter judgment against it. 60. Parties may receive relief from judgments (including default judgments) if there was a clerical mistake, for “mistake…. or excusable neglect,” or other reasons. –Very unusual Forms 1,3. Forms for summons Forms 1,2,5-6. Forms for Waiver of Service of Process 84. Forms are legally valid

12 Service of Process Questions I 1) Prof. Armour sues Prof. Garet for a playground injury. He attempts to serve process but the process server he hired is unable to find Prof. Garet and his house is abandoned. So Prof. Armour publishes the summons in the Los Angeles Times. Is service of process valid? –Assume that the case was commenced in the federal district court for the Central District of California and that Prof Garet resides in that district –Note that California statutes include the following provision: Cal. Code Civ. Pro Service by publication (a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article… (b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served….

13 Service of Process Questions II 2) It has been proposed that the Federal Rules of Civil Procedure should be amended to add a new FRCP (4)(e)(2)(D) that would read: –(D) delivering a copy of each by electronic means at a location previously accessed by the individual within 60 days before the copy is delivered. a) Is this proposed amendment constitutional? What factors are relevant to this question? b) Is this amendment a good idea? If you were on the Rules Advisory Committee, would you recommend its adoption? c) If it were your responsibility to draft a new rule relating to electronic service of process, would you propose different language? If so, draft the rule you would propose. 3) How could one argue that service of process by electronic means is already allowed under the FRCP in some circumstances? If you need more information to answer this question, what information do you need? I do not encourage you to do research to find the information you would need. Rather, I hope you will read FRCP 4 carefully to see what provision or provisions of it could be construed under some circumstances to allow electronic service of process.

14 12(b)(6) Motion to Dismiss 12(b)(6). Defendant challenges complaint by making motion to dismiss for failure to state a claim upon which relief can be granted –Judge assumes all facts in complaint (but not legal conclusions) are true –See handout for problems justifying dismissal –If motion granted, plaintiff almost always has chance to amend –Core purpose – dismiss claims not supported by law Not that may require resolution of difficult, close, and/or new legal issues –Newer purpose – dismiss claims with insufficient factual support See Iqbal. very controversial, because plaintiff may need discovery to get factual support, but not discovery if case dismissed Called “demurrer” in common law and in many state law systems

15 Haddle Briefly summarize Haddle v. Garrison. –Your summary should include the parties, the key allegations of the complaint, the way each court which heard the case ruled, and why. –Try to keep your summary brief. The summary I drafted is 4 sentences and 92 words. Concision is a virtue! Yeazell pp. 372 Q1 Read 42 U.S.C. § 1985(2) carefully (Yeazell p. 373). What are the elements of a cause of action under that statute? That is, list all the things that the plaintiff will have to prove to prevail if the case goes to trial. For each element you listed, find the corresponding allegations in the complaint (pp ). Questions 1 & 2 on Yeazell pp Questions 1-2 on Yeazell pp

16 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

17 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.

18 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?