1. 1 Agenda for 4th Class Misc. –Name plates out –Slide handout Review of complaint & 12(b)(6) Rule 11 Intro to Answer, Amendment & Relation Back

2. 2 Assignment for Next Class I Answer –FRCP 8(b)&(c), 11(b)(4) –Yeazell 426-38 –3 Blackboard questions on Answer –Questions to think about & Writing Assignment for Group 6 Briefly summarize Zielinski v PPI What does Zielinski mean by “defendant is estopped from denying agency” What rule authorized the court to do this? Yeazell pp. 436-7. Q1b, 1c, 2a, 2c, 3, 4a, 6c Is it plausible that PPI acted in good faith without intent to deceive? –Optional: Glannon 659-74 (You can ignore material about counterclaims) Amendment –See next page

3. 3 Assignment for Next Class II Amendment –Rule 15 –Yeazell 443-56 –Made sure you understand the difference between allowing an amendment and allowing “relation back” Hint. One of them is relevant only if the statute of limitations has run out –Blackboard Questions on Amendment –Questions to think about & Writing Assignment for Group 7 Summarize the three cases in today’s reading Yeazell p. 448ff Qs 1, 3b, Yeazell p. 454ff Qs 4c, 5b Glannon 383-407 (Amendment & Relation Back)

4. 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) –See next slide 12(b)(6) can lead to resolution of difficult legal questions –Supreme court resolves meaning of “property” in § 1985(2) in Haddle 4

5. Parsing of 1985(2) If 2 or more people … conspire –A) to deter by force, intimidation or threat any … witness from attending … court … or from testifying… OR –B) to injure such … witness in his person or property on account of having so attended or testified [Then] the party so injured or deprived may have a cause of action for the recovery of damages… against … the conspirators Problem –Not clear whether Haddle actually testified (see paragraph 14 of complaint) Plaintiff … testified …. and appeared … although his testimony was not actually taken –So not clear whether firing was “to deter” or “to injure” –If just “to deter,” then no need to prove injury “to property or person”? Very odd –Most plausibly, Haddle “attended court” even if did not “testify” –So need to prove “injury to person or property” 5

6. FRCP 8 and 12(b)(6) 12(b)(6) motion tests compliance with Rule 8 –Rule 8(a)(2) requires “statement of the claim showing that the pleader is entitled to relief” –12(b)(6) requires dismissal if “failure to state a claim upon which relief can be granted” 6

7. Iqbal First exclude all conclusory allegations Second, examine remaining allegations to see if they “plausibly” show a violation of the law Application to Iqbal –Non-conclusory allegations allege that Ashcroft and Mueller arrested and detained thousands of Arab Muslim men. –Two possible inferences Ashcroft and Mueller arrested and detained thousands of Arab Muslim men because of their race, religion or national original Ashcroft and Mueller arrested and detained thousands of Arab Muslim men because they were trying to investigate the September 11 attacks and to deter similar acts in the future –Court says 2 nd explanation is “obvious,” so 1 st explanation is “implausible” –Case dismissed, because no constitutional violation unless Arab Muslim men arrested and detained because of their race, religion or national origin 7

8. Application of Iqbal to Haddle 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 2 nd, so first explanation is plausible So case would not be dismissed even under Iqbal 8

9. 9 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

10. 10 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 –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?

11. 11 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…”

12. 12 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.

13. 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. 90- 94). What part(s) of Rule 11 would Schlictmann rely on? 13

14. 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. 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

16. 16 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.”

17. 17 Relation Back Relevant only if statute of limitations has run out 15(c)(1)(B). If not changing the party –Relation back if same transaction or occurrence 15(c)(1)(c). If changing party –3 part test Same transaction or occurrence Within 120 days of filing of complaint (plus extensions), defendant had actual notice of lawsuit (even if did not receive service of process) Within 120 days of filing of complaint (plus extensions), defendant knew or should have known that plaintiff made a mistake about identity of proper defendant