CIVIL PROCEDURE CLASS 11 Professor Fischer Columbus School of Law The Catholic University of America Sept. 27, 2001

WRAP-UP OF LAST CLASS We learned about the signature and certification requirements under FRCP 11(a) and 11(b)

What Will We Do Today? Discuss Rule 11 sanctions under 11(c) Discuss Practice Exercise 11 Learn rules for simple joinder of parties and claims (FRCP 18-21)

POLICY OF DETERRENCE Please explain the policy of deterrence limiting a sanctions award under FRCP 11 and state what subsection of FRCP 11 contains this policy. What types of sanctions may be awarded under Rule 11(c)?

TYPES OF RULE 11 SANCTIONS MONETARY: payment of penalty into court, payment to moving party of reasonable attorneys’ fees or costs, but NOT punitive damages Must make motion for attorneys fees or costs NONMONETARY: reprimands, dismissals, findings, strikiing paper What limits exist on monetary sanctions under Rule 11(c)

LIMITS ON MONETARY SANCTIONS 1. When are monetary sanctions unavailable against a REPRESENTED PARTY? What subsection of FRCP 11 governs? 2. Cannot award monetary sanctions sua sponte if show cause order issued before any voluntary settlement or dismissal 3. Court must consider financial status of a Rule 11 offender 4. Duty to mitigate

SANCTIONS ORDERS What does 11(c)(3) provide?

PROGRESS FEDERAL SAVINGS BANK v. NATWEST State or federal court? What procedural stage has this action reached? What procedural issue must the court decide?

PROGRESS FEDERAL SAVINGS BANK v. NATWEST How does the court rule on this issue? What is the court’s reasoning?

PRACTICE EXERCISE 11 Consider all four counts of the complaint and advise as to what, if any, additional factual or legal investigation is needed as to any count. Are there any allegations in the complaint for which the partner should use the hedging language permitted by FRCP 11(b)(3)? How do you analyze whether this complaint should be filed ‘as is’?

You Must Have Support for Allegation of Precise Facts An attorney will not want to allege that the events happened on a specific date without some evidentiary support (11)b(3)(4). P.E. 11 states that the specific factual allegations have ample evidentiary support. Of course, the pleader can specifically identify "allegations and other factual contentions" and state that they "are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery"

Meet the Language of FRCP 11(b)(2) that the "claims, defenses, and other legal contentions" are "warranted by existing law etc." The bottom line here is that an attorney must know what the elements of each cause of action are in order to analyze whether the claim is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. That means you have to match facts to elements. Regardless of what is in the complaint (Rule 8(a) requires less than the pre-filing investigation required by Rule 11), you should be able to show some evidentiary support for each element of each claim (unless specifically identified as allowed by FRCP 11(b)(3))

TITLE VII CLAIMS What are the elements of a Title VII disparate treatment claim? What are the elements of a Title VII disparate impact claim? What evidence to we have to support these allegations?

DISPARATE TREATMENT Covered employer (15 or more employees) Discriminated against employee or potential employee by intentional conduct motivated by e.g. sex With respect to an employment practice covered by the act (e.g. hiring)

DISPARATE TREATMENT P must first establish prima facie case of discrimination That raises rebuttable inference that rejection was discriminatorily motivated D must articulate a nondiscriminatory explanation for the rejection P can argue that this explanation is just a pretext to cover the rejection (it must be a pretext for discrimination not just some other thing the employer is trying to hide)

DISPARATE IMPACT Use of ostensibly neutral selection practices that have an adverse effect on protected group and are not justified by a showing that this predicts successful job performance Can’t get compensatory and punitive damages although these are available for disparate treatment (though limited )– Can get restatement and backpay.

DISPARATE IMPACT P must show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern Then burden of proof shifts to employer to prove that challenged requirement “had a manifest relationship to the employment in question” P could still win by proving that alternative selection devices would serve employer’s legitimate interests without a similar discriminatory effect

CIVIL RIGHTS (section 1983) COUNT What are the elements of a § 1983 claim? What evidence do we have to support this claim?

CIVIL RIGHTS (section 1983) COUNT What are the elements of a § 1983 claim? 1. State action 2. Violation of federal law (other than Title VII) – here violation of equal protection clause 3. Discriminatory intent What evidence do we have to support this claim?

CONSPIRACY (§ 1985(3)) What are the elements of a cause of action for conspiracy under § 1985(3)? Do we have evidentiary support for the conspiracy allegations in ¶¶ 89 and 90 of the Complaint?

CONSPIRACY (§ 1985(3) What are the elements of a cause of action for conspiracy under § 1985(3)? 1. Conspiracy 2. Behind Which There is Invidious Discriminatory Animus 3. Conspiracy Aimed at Intefering With the Rights Protected Against Encroachment Do we have evidentiary support for the conspiracy allegations in ¶¶ 89 and 90 of the Complaint?

STATE CIVIL SERVICE FRAUD COUNT What are the elements of a claim under the “frauds in examination” portion of the Ohio civil service statute? What factual evidence is needed to support this claim?

STATE CIVIL SERVICE FRAUD COUNT What are the elements of a claim under the “frauds in examination” portion of the Ohio civil service statute? Essentially, cheating or intentional distortion of results by dishonest behavior like impersonating people or “willfully or corruptly” providing people with the exam in advance or altering results What factual evidence is needed to support this claim?

SIMPLE JOINDER RULES IN THE FRCP LITIGATION SOMETIMES INVOLVES MORE THAN ONE CLAIM OR MORE THAN TWO PARTIES ISSUE: WHO ARE THE PARTIES TO THE SUIT? AND WHAT ARE THE CLAIMS IN THE ACTION? JOINDER OF CLAIMS: FRCP 18 JOINDER OF PARTIES: FRCP 19, 20, 21 GENERAL TREND IN FRCP IS BROAD JOINDER IT IS EASIER TO JOIN CLAIMS THAN PARTIES UNDER FRCP

FRCP 18: JOINDER OF CLAIMS ISSUE: What claims can a party bring against another party in the same action? Can a party bring unrelated claims against another party in the same action?

FRCP 18: JOINDER OF CLAIMS Can a party bring unrelated claims against another party in the same action? Answer: Yes : A party asserting a claim to relief... May join, either as independent or alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party (FRCP 18(a)) NOTE WE WILL DISCUSS SUPPLEMENTAL JURISDICTION OVER NON-DIVERSE STATE CLAIMS LATER

APPLICATION OF FRCP 18 FRCP 18 applies to: P v. D Third-party P v. Third-party D D1 v. D2 D v. P

FRCP 18: PERMISSIVE OR MANDATORY? MUST a P bring all unrelated claims against D in a single action? (please forget about counterclaims for now)Why? Important Note: related claims may be barred by claim preclusion. We’ll learn about this later. Another Important Note: Court can order separate trials under FRCP 42(b)

AMENDMENTS AND JOINDER OF CLAIMS Svetlana files an action against Andreea for negligence. After Andreea serves her answer, Svetlana wishes to add a claim of breach of contract against Andreea. The statute of limitations has not expired. Please advise Svetlana, specifying which FRCP(s) apply.

JOINDER OF PARTIES Some parties MUST be joined (FRCP 19) Other parties may be joined if permissive joinder rules apply (FRCP 20)

PERMISSIVE JOINDER: FRCP 20 Parties are generally “masters of their claims” ISSUE: When can P sue together? ISSUE: When can P sue several Ds together in the same action?

WHEN CAN Ps SUE TOGETHER? IF: 1. Claims arise out of same transaction and occurrence or series of transactions or occurrences AND 2. Common question of law or fact subject to discretion of court to deny joinder where JURY CONFUSION or UNDUE DELAY (20(b)) NOTE SUPPLEMENTAL JURISDICTION RULES MAY AFFECT THIS- WE WILL DISCUSS LATER

HYPO The 2:00 N2 metrobus collides with a car near Dupont Circle. 17 passengers are injured. One passenger, Arabella, sues the driver, Don, for damages resulting from her injuries. May the remaining 16 passengers join in the same action if they also have claims against Don?

WHEN CAN P SUE MULTIPLE Ds IN SAME ACTION? IF: 1. Claims arise out of same transaction and occurrence or series of transactions or occurrences AND 2. Common question of law or fact subject to discretion of court to deny joinder where JURY CONFUSION or UNDUE DELAY (20(b))

RULE 20 IS PERMISSIVE Parties are not required to be joined (subject to FRCP 19) However, courts sometimes CONSOLIDATE actions (FRCP 42(a)) where they share common questions of law or fact Courts also have discretion to deny joinder and order separate trials (FRCP 20(b))

FRCP 21: MISJOINDER OF PARTIES UNDER RULE 20 Misjoinder will not result in dismissal Parties can be dropped (severed) or added 1. On motion of parties 2. Or at initiative of court AT ANY STAGE OF THE ACTION (subject only to need to protect parties from unfair prejudice) COURT HOWEVER CAN ORDER SEPARATE TRIALS

FRCP 19: COMPULSORY JOINDER Some parties MUST be joined Class actions are an exception: 19(d) Old distinction: A. Necessary parties - should join if feasible BUT failure to join will not result in dismissal of action B. Indispensable parties - MUST join these parties. Failure to join results in dismissal of action

RULE 19(a): WHO MUST BE JOINED IF FEASIBLE? Parties w/overlapping interest in property: 19(a)(2)(ii) Persons with an interest that the action may legally/practically impair : 19(a)(2)(I) Persons who, if not parties to action, make it impossible for court to grant complete relief to existing parties: 19(a)(1)

HOW DOES A PARTY CHALLENGE A PARTY’S ABSENCE UNDER RULE 19? Opposing party can move to dismiss (Rule 12(b)(7) motion Is failure to join an indispensable party under 12(b)(7) a waivable defense? Court can also order joinder sua sponte - at trial or on appeal.

CONSEQUENCES OF FAILURE TO JOIN AN ABSENT PARTY WHO SATISFIES 19(a) Party must be joined if feasible Court will order joinder - court will not dismiss action for misjoinder What if it is not feasible to join that party?

FRCP 19(b): WHERE JOINDER IS NOT FEASIBLE Joinder might not be feasible because it would defeat diversity jurisdiction, or court can’t obtain personal jurisdiction over the absent party or absent party has a valid venue objection In this case, what should the court do?

FACTORS THE COURT TAKES INTO ACCOUNT UNDER 19(b) 1. Potential prejudice 2. Shaping relief 3. Adequacy of judgment 4. Costs to plaintiff

PLEADING REQUIREMENT: 19(d) What does 19Id) require?

HYPO A & B have the same formal name, Martin Smith. Both A and B claim to be the beneficiaries of a life insurance policy issued by insurance carrier L on the life of C, who has died. A sues L. L fears that if the court orders L to pay the policy to A, B may file another suit against L and L might be again ordered to pay the policy amount to B. Can A be required to include B in his lawsuit vs. L?