1. Agenda for 4th Class Misc. Name plates out Slide handout Pleading
Pleading Handout (continued)
Iqbal
Rule 11
Intro to
Answer
Amendment

2. Assignment for Next Class I
12(b)(6) and Rule 11 in A Civil Action
Read A Civil Action through p. 119
Questions on A Civil Action (see slide 4)
Answer
FRCP 8(b)&(c), 11(b)(4)
Yeazell
3 Blackboard questions on Answer
Questions to think about
(WG1) Briefly summarize Zielinski v PPI. Your summary should include answers to the following questions
What does it mean that “defendant is estopped from denying agency” What rule authorized the court to do this?
Yeazell p Q1b, 1c, 2a, 2c
Yeazell p. 431 Q3 (WG2)
Is it plausible that PPI acted in good faith without intent to deceive? (WG3)

3. Assignment for Next Class II
Answer continued
Could the judge in Zielinski have reached the same result – forcing PPI to (falsely) admit the Johnson was his employee and estopping PPI from denying agency – using one or more of the following rules:
11 (WG4)
26(a)(1)(ii) (WG5)
26(e)(1) (WG6)
26(g) (WG7)
In answering this question, consider the relationship, if any, between those four sections and 37(c)(1). Also note that Rule 11 does not apply to discovery responses (such as responses to interrogatories) and that Rules relate to discovery.
Yeazell pp. 433, Q6c (WG1)
Optional: Glannon (You can ignore material about counterclaims)

4. Assignment for Next Class III
Amendment
Rule 15(a)
Yeazell
Blackboard Questions on Amendment
(WG2) Summarize Beeck v Aquaslide. Your summary should include an answer to Yeazell pp Q1.
Yeazell p. 443 Q3b (WG3)
Optional. Glannon , Examples 3-8 on pages (Explanations starting on p. 400)

5. Questions on A Civil Action
(WG4) 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 willful violation of this rule an attorney may be subjected to appropriate disciplinary action.
(WG5) 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? (WG6)
(WG7) Could Schlichtmann have made a plausible Rule 11 motion? (See pp ). What part(s) of Rule 11 would Schlictmann rely on?

6. Review of Haddle Continue with Pleading Handout
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)
12(b)(6) can lead to resolution of difficult legal questions
Supreme court resolves meaning of “property” in § 1985(2) in Haddle
Continue with Pleading Handout

7. 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 1st and 5th Amendments.
Main fact in support of proposition that detention was “on account of … religion, race of national origin” was allegation that “thousands of Arab Muslim men [were detained[ as part of [the government’s] investigation of the events of September 11.”
Court sets forth 2-step test
First exclude all conclusory allegations
Second, examine remaining allegations to see if they “plausibly” show a violation of the law
Are there plausible factual allegations relating to each element?
Are the non-conclusory facts consistent with and more likely to reflect behavior that would indicate no violation of the law

8. Application of 2-Step Test to Iqbal
First, exclude conclusory allegations
Exclude allegation that detentions were “as a matter of policy, solely on account of [his] religion, race, and/or national origin…”
Second, examine remaining allegations to see if they “plausibly” show a violation of the law
Non-conclusory allegations allege that Ashcroft and Mueller arrested and detained thousands of Arab Muslim men.
Two possible inferences from those remaining allegations
A). Ashcroft and Mueller arrested and detained thousands of Arab Muslim men because of their race, religion or national original
B). Ashcroft and Mueller arrested and detained thousands of Arab Muslim men because they were investigating the September 11 attacks and to deter similar acts in the future
Court says 2nd explanation is “obvious,” so 1st explanation is “implausible”
Case dismissed, because no constitutional violation unless Arab Muslim men arrested and detained because of their race, religion or national origin

9. Application of Iqbal 2-Step Test to Haddle
First, exclude conclusory allegations
Allegation that firing was “for purpose of retaliating against plaintiff for his cooperation with federal agents and his testimony…”
Second, examine remaining allegations to see if they “plausibly” show a violation of the law
Non-conclusory allegations alleged that Haddle was fired after attending court to testify against the defendants.
Two possible inferences
Haddle was fired because he attended court to testify against the defendants
Haddle was fired for some other reason (e.g. bad job performance)
No reason to believe the 2nd, so first explanation is plausible
So case would not be dismissed even under Iqbal

10. Questions on Iqbal
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?

11. Does Iqbal Matter? Why might matter
Notice pleading (pre-Iqbal) allows weak claims to get to discovery
Discovery is very expensive, so Iqbal can save money/time
Iqbal 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. Rule 11 says complaint can’t make up facts. (Twombly)
Similar issues with tobacco fraud or employment discrimination
Why might not matter
Empirical evidence suggests people pled facts even before Iqbal
Contingent fee lawyers wouldn’t take “implausible” cases
Iqbal has led to little or no increase in motions to dismiss
Iqbal has led to little or no change in complaint length or number of suits

12. 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

13. Rules 12(b)(6) and 11
Rule 11 gets the movant sanctions (potentially $)
12(b)(6) gets case dismissed
Rule 11 for any paper (except discovery)
12(b)(6) just attacks complaint
Rule 11(b)(3) can challenge factual basis of complaint
Judge on 12(b)(6) assumes facts in complaint are true
Can avoid Rule 11(b)(2) sanctions if have non-frivolous argument to change law
Can prevail on 12(b)(6) only if you convince the judge that your interpretation of the law is correct
Both are ways that defendant can force plaintiff to reveal legal arguments
Complaint need not cite legal authority or make legal argument
But if defendant brings Rule 12(b)(6) or Rule 11(b)(2) motion, plaintiff will need to set out legal authorities and arguments in memorandum/brief in response

14. Rule 11 (cont.) Assignment for today
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
Who must pay the sanction imposed in Christian v Mattell? The lawyer? The client? Both? Either?
Suppose that the defendant had not moved for Rule 11 sanctions. Could the judge have imposed them anyway?

15. 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…”

16. Would Rule 11 Sanctions Be Appropriate If …
Prof. Brown 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. Brown’s article.
Same as previous question, except that you do not cite the Supreme Court decision and Prof. Brown’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.

17. 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
If defense in answer, not called “12(b)(1)” or “12(b)(6)”
Remember, a motion asks the court to do something
A pleading (including the answer) just preserves issue for discovery and trial
Motions to Dismiss
See grounds in FRCP 12(b)

18. 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

19. 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.”
15(c). Relation back
Hard
Won’t deal with until Friday 9/14
Only relevant if statute of limitations has run out