1. 2004 Exam Waterstone Civil Procedure

2. Facts Jackson flashes breast. Carlin sues for IIED. Elements for IIED under TN law are intentional/reckless; not tolerated in civilized society; serious mental injury

3. Real life is stranger than fiction Real lawsuit. Filed by Wayne Ritchie II, with law firm of Ritchie, Dillard, & Davies Filed on February 3, 2004 (3 days after Superbowl)

4. Question 1a – 3 minutes Options – Contingency Hourly rate/flat fee. Here, want hourly rate. No recovery for D so contingent fee isn’t good option.

5. Question 1b – 18 minutes 12(b)(6) motion – “Failure to state a claim upon which relief can be granted.” Even if everything P says is true, no legal basis for relief. Even if everything P says is true, no legal basis for relief. Need to find that either did not plead fact that they will need, or facts that did plead will not add up to recognized claim. Haddle. Need to find that either did not plead fact that they will need, or facts that did plead will not add up to recognized claim. Haddle.

6. Question 1b (cont.) Do the facts alleged, if true, make out a claim for IIED under TX law? Go through elements: Intentional/Reckless – p. 12. Intentional/Reckless – p. 12. So outrageous that not tolerated in civil society. So outrageous that not tolerated in civil society. Bain – “outrageous!” P. 11/12 – looks like there. But look for cases that say needs to be something more than being exposed to breast on TV. Serious mental injury Serious mental injury P. 13 – “outrage, anger, embarrassment, injury” Maybe need more? Recommendation – one way or other

7. Question 1c – Rule 11 Explain strengths & weaknesses of Rule 11 motion. Additional facts/research. Safe harbor

8. Question 1c – cont. Strengths/weaknesses of Rule 11 motion General: General: Already answered; have not brought pre-answer motion – Rule 11 motion won’t make case go away. May not even get AF incurred with bringing motion. Seriousness of bringing motion.

9. Question 1c – cont. Strengths/weaknesses of Rule 11 motion Specific – reasons to bring R 11 motion: Specific – reasons to bring R 11 motion: Improper purpose: Would want to know if this came with threat of quick settlement; other reason to suspect harassment. Would want to know if this came with threat of quick settlement; other reason to suspect harassment. Claims are warranted by existing law or non-frivolous extension of existing law Need legal research on standard for “outrageousness” under IIED. Do cases say need something more than started by something on TV? Need legal research on standard for “outrageousness” under IIED. Do cases say need something more than started by something on TV? Allegations have evidentiary support Severe mental injury? Take discovery on. Did P’s lawyer know she was just shocked? Severe mental injury? Take discovery on. Did P’s lawyer know she was just shocked?

10. Question 1c – cont. Safe Harbor Need to serve motion on other side; give them 21 days to respond before file motion. Need to serve motion on other side; give them 21 days to respond before file motion. Sample answer

11. Question 1d – 7 minutes Amendment – FCC claim Rule 15(a) Rule 15(a) Beyond “matter of course,” so… “By leave of court … shall be freely given when justice so requires.”

12. Question 1d – cont. Why did P not get right? Bad faith? Nothing evident from complaint. Bad faith? Nothing evident from complaint. Prejudice to D? Nothing like Beeck (potentially barred from suign at all) – can move to push trial date back to allow discovery. Nothing like Beeck (potentially barred from suign at all) – can move to push trial date back to allow discovery.