1. 1 Agenda for 3rd Class Admin –Handouts –Name plates –First names to use in class –Lunches Next 3 Tuesdays The Hark, noon Complaint & 12(b)(6) –Haddle (continued) –Iqbal Rule 11 –Norwest

2. Assignment for Next Class Rule 11 (continued) –Review any materials or questions we didn’t cover in class on Monday –Yeazell pp. 421-26 –Briefly summarize Christian v Mattell –Hypos on next 2 pages Answer –FRCP 8(b)&(c), 11(b)(4); Form 30 –Yeazell 426-38 –Briefly summarize Zielinsky v PPI –What does Zielinsky 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, 4, 6 –Is it plausible that PPI acted in good faith without intent to deceive? –Optional: Glannon 615-46, 659-74 (ignore material about counterclaims) Questions on A Civil Action (see slide 5) 2

3. 3 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. 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…” Prof. Tribe 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. Tribe’s article.

4. 4 Would Rule 11 Sanctions Be Appropriate If … Same as previous question, except that you do not cite the Supreme Court decision and Prof. Tribe’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.

5. 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? Amendment 5

6. 6 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 Rule 12 motion is not necessary 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

7. 7 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

8. Review of Last Class – Service of Process I Rules & constitution Rule 4(c)(2) & Rule 4(e)(1) –4(c)(2). Service by “any person at least 18 years old and not a party” –4(e)(1). Ok to serve following state law MA law says can serve by leaving papers at home (even if no one home), but service must be by sheriff –2 views For case in federal court in MA or serving in MA, 20-year old not a party can serve by leaving papers at home –4(c)(2) is general provision, specifies persons for 4(e)(2), 4(e)(1), and all other parts of FRCP 4 –Purpose. FRCP reduces costs by not requiring govt official (e.g. sheriff, marshal, etc.) »No reason to require sheriff when leaving papers at home For case in federal court in MA or serving in MA, can only serve by leaving papers at home if service by sheriff 8

9. Review of Last Class – Service of Process II Rule 4(c)(2) & Rule 4(e)(1) (continued) –2 views For case in federal court in MA or serving in MA, 20-year old not a party can serve by leaving papers at home For case in federal court in MA or serving in MA, can only serve by leaving papers at home if service by sheriff –4(e)(2) says follow state law, and that means disregard anything contradictory in 4(c)(2) –Assumed by Glannon on pp. 359-40 –Analysis of purpose encouraged by FRCP 1 –But analysis of purpose might imply different result if service method was different Suppose MA law provided that service could be provided by arresting defendant… Encouraging citizen arrest could provoke violence So judge might interpret 4(c)(2) and 4(e)(1) to require service by sheriff, as required by state law 9

10. Review of Last Class III Complaint & 12(b)(6) –Complaint ordinarily must plead facts relevant to each element of the cause of action –So, in order to plead, one must understand substantive law Parse § 1985(2) Understand case law about § 1985(2) –12(b)(6) can lead to resolution of difficult legal questions Supreme court resolves meaning of “property” in § 1985(2) in Haddle 10

11. Complaint & 12(b)(6) Questions Haddle (continued) –Questions 1 & 2 on Yeazell pp. 376-77 –Questions 1 & 2 on Yeazell pp. 382-83 Last 2 pages of Pleading Handout 11

12. 12 Iqbal I 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 1 st and 5 th Amendments. “on account of [his] religion, race and/or national origin” are “bare assertions… formulaic recitations of elements of a constitutional discrimination claim… conclusory and not entitled to be assumed true” Without those allegations, complaint is implausible, because complaint does not allege facts which plausibly imply discriminatory motive –Detention of thousands of Muslim men was alleged But that does not plausibly give rise to inference of discriminatory motive Detentions “likely lawful and justified by … non discriminatory intent to detain …. those who had potential connections to those who committed terrorist acts.” September 11 attacks perpetrated by Al Qaeda, and Al Qaeda is “composed in large part of … Arab Muslim disciples.”

13. 13 Iqbal II 2 step test –Exclude all conclusory allegations –Examine rest of complaint for plausibility Are there factual allegations relating to each element? Do facts give rise to plausible inference of misconduct? –Or are facts equally consistent with lawful conduct? Questions –Yeazell pp. 399-400 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?

14. 14 Rule 11 All papers must be signed by lawyer –Including complaint, answer, 12(b)(6) motion, summary judgment motion –Rule 11 does not apply to discovery, but Rule 26(g) is similar Lawyer must have done “inquiry reasonable under the circumstances” to determine –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 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)

15. 15 Rule 11 (cont.) Safe Harbor –Movant must serve motion on opposing party before filing with court –Opposing party has 21 days to withdraw paper before motion for sanctions filed with court. 11(c)(2) Judge may order sanctions without motion, but must issue show cause order first –Cannot order sanctions after settlement or voluntary dismissal Questions –Briefly summarize Walker v Norwest –Yeazell pp. 415-6. Qs 1-5; pp. 419-20 Qs 1, 2c&d