1. 1 Agenda for 2nd Class Admin –Name plates –Lunch on Thursday –Nicknames Name plates Sheet Intro to Rule 11 Service of Process under FRCP Complaint & Motion to Dismiss –Haddle

2. Assignment for Next Class I Complaint II –FRCP 9, 10, 12(e); Forms 7, 10, 11 –Yeazell 384-401 –Pleading Handout –Questions to be discussed in class Last 2 pages of Pleading Handout 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? 2

3. 3 Assignment for Next Class II Rule 11 –FRCP 11 –Yeazell 412-20 –Briefly summarize Walker v Norwest –Yeazell pp. 415-6. Qs 1-5; pp. 419-20 Qs 1, 2c&d –Read A Civil Action through p. 119 (“Rule 11”) by next Tuesday Background for Walker v Northwest (Yeazell 416-18) –Subject matter jurisdiction 2 basic reasons to be in federal court: federal question and diversity of citizenship –If more than 2 parties, need complete diversity No plaintiff can be a citizen of the same state as any defendant OK: CA v. MA; CA & NV v. MA & CT; SD v MN & MN Not OK: CA v CA; CA & NV v. MA & CA; SD v. MN & MN & SD –Federal question jurisdiction established by pleading violation of federal statute, even if it turns out that facts do not support

4. 4 Intro to 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

5. 5 Intro to 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 Case Names In trial court: Plaintiff v Defendant –Louisville Housing Authority v. Lindsey (in state court) –Lindsey v Greene (in federal court) In appellate court: –appellant v appellee –Or petitioner v respondent (US Supreme Court on certiorari) –Lindsey v Greene (in 6 th Circuit) –Greene v Lindsey (in US Supreme Court)

6. Review of Last Class Microcosm of legal education Facts and reasoning of a case (Greene) Holding of a case (Greene) –Service of process by posting is unconstitutional in situations where the probability that notice will not be received is high, the lawsuit involves an important interest (such as eviction from home), and a reasonably priced alternative method of service of process exists which would provide actual notice with a higher probability. 4 factors –Probability that method will not provide actual notice –Stakes. Home versus car versus trash can –Cost of service –Alternatives. Is there a reasonably priced more reliable method? –Refinement of Mullane Due Process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action” 6

7. Review of Last Class II Application of holding to hypothetical situations –Eviction from posh apartment in Beacon Hill Probably constitutional, because probability of actual notice high enough –Towing of illegally parked car on Harvard campus Probably constitutional, because less at stake Also, alternatives would be costly Also, no state action –Mailing of forfeiture notice that returned SC says unconstitutional, because government knows that notice not received. Jones v Flowers, 547 US 220 (2006) –Mailing to prison SC say constitutional, because reasonable procedures probably followed. Dusenbery v US, 534 US 161 (2002) 7

8. Review of Last Class III Analysis of alternative rule –Electronic service of process Constitutionality. Depends on how often people change addresses Policy/improvements –Perhaps better as fall back rather than by itself –Perhaps better if restricted to email addresses likely to be in continuing use (e.g. connected with job) Question from Last Class 13) How could one argue that service of process by electronic means is already allowed under the FRCP in some circumstances? If you need more information to answer this question, what information do you need? 8

9. 9 Service of Process Hypos For each of the following, was service of process valid? Except for the last question, assume each case was commenced in federal district court in Massachusetts. Justify your answer by referring to the appropriate subsection(s) of the FRCP, e.g. FRCP 4(e)(2)(A). 1) Prof. Hanson sues Prof. Lanni for pulling away the chair he was about to sit on. Prof. Hanson himself delivers the summons and complaint to her. 2) Prof. Freeman sues Dr. Hanson for botching a surgery and giving her a hairy hand. Prof. Freeman asks Prof. Lanni to deliver the summons and complaint. Prof. Lanni can’t find Dr. Hanson in his office, but sees his secretary, Carol Igoe, in Dr. Hanson’s office. Prof. Lanni gives the summons and complaint to Carol Igoe. 3) A student denied admission to Harvard Law School sues Harvard. He is unable to park on or near campus, so he gives the summons and complaint to a Harvard police officer he sees standing on a curb. 4) Prof. Hadfield sues Prof. Estrich in federal court in the Central District of California. She attempts to serve process, but the process server she hired is unable to find Prof. Estrich, and her house is abandoned. So Prof. Hadfield publishes the summons in the Los Angeles Times.

10. Cal. Code Civ. Pro. 415.50. Service by Publication (a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article… (b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served…. 10

11. 11 Other Relevant FRCP Sections 1. Rules “construed … to secure the just, speedy, and inexpensive determination of every … proceeding” 12(b)(4). Motion to dismiss for “insufficient process” –Defect in summons (rare) –Plaintiff can refile (start over) 12(b)(5). Motion to dismiss for “insufficient service of process” –Plaintiff can refile 55. Default judgment –If defendant fails to respond to summons or otherwise defend the case, court may enter judgment against it. 60. Parties may receive relief from judgments (including default judgments) if there was a clerical mistake, for “mistake…. or excusable neglect,” or other reasons. –Very unusual Forms 1,3. Forms for summons Forms 1,2,5-6. Forms for Waiver of Service of Process 84. Forms are legally valid

12. 12 Complaint in FRCP I 3. Complaint filed with court 4(c)(1). Complaint served on defendant with summons 8(a). Complaint has 3 parts –Jurisdictional statement. See Form 7 –Short and plain statement of claim. See Forms 10 & 11 Plaintiff usually must plead facts related to every element of a valid cause of action Need not cite legal authority –Demand for relief. See Forms 10 & ll How much money; what kind of injunction 8(d). Can plead in alternative, even if both can’t be true 8(e). Complaint interpreted “so as to do justice” –See also Rule 1. Rules construed “to secure just, speedy, and inexpensive determination” of cases 10, Form 1. Formalities, captions, etc.

13. 13 Complaint in FRCP II 11. Complaint must be truthful, e.g. supported by legal and factual research Forms 10 and 11 provide examples of very short complaints –FRCP 84 says that forms are valid –No one writes complaints that are this short Why?

14. 14 12(b)(6) Motion to Dismiss Defendant challenges complaint by making motion to dismiss for failure to state a claim upon which relief can be granted under FRCP 12(b)(6) Core purpose – dismiss claims not supported by law –Prof. Klerman called on John in class, wherefore John prays $1,000,000 in damages. Even if true that I called on John, case dismissed, b/c not illegal for me to call on a student in class –12(b)(6) may require resolution of difficult, close, and/or new legal issues Whether it is illegal for McDonalds to sell foods which make people obese Newer purpose – dismiss claims with insufficient factual support –See Iqbal. very controversial, because plaintiff may need discovery to get factual support, but no discovery if case dismissed Judge assumes all facts in complaint (but not legal conclusions) are true –Case dismissed if plaintiff would lose, even if all facts assumed to be true If motion granted, plaintiff almost always has chance to amend

15. 15 History of Pleading I Writ system. 12 th – 19 th centuries –Technical, formulaic; procedure varied by writ Code pleading, 19 th -present –Supposed to be non-technical –Plead facts (but not conclusions or evidence) –Line between facts, conclusions, evidence hard to draw Notice Pleading, 20 th century –Eliminated distinction between facts and conclusions –8(a) “statement of CLAIM” not facts 9. Only a few matters must be plead “with particularity” (e.g. fraud or mistake) –Form 11 is example of notice pleading: “defendant negligently drove a motor vehicle” “negligently” is usually considered a legal conclusion –“drove drunk” or “drove 10 miles over speed limit” “or “drove while texting” would be facts

16. 16 History of Pleading II Iqbal –Back to requirement to plead facts? Why matters –Notice pleading allows weak claims to get to discovery Discovery is very expensive So Iqbal can same money and 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 emails, depositions, and other discovery, you have no proof. Insufficient to plead “defendants conspired,” because that is conclusion, but don’t know facts. Rule 11 says complaint can’t make up facts. (Twombly) Similar issues with tobacco fraud or employment discrimination –Policy question: Should people be able to sue when don’t have much evidence to support liability, but might find it through discovery?

17. Complaint Questions Briefly summarize Haddle v. Garrison. –Your summary should include the parties, the key allegations of the complaint, the way each court which heard the case ruled, and why. –Try to keep your summary brief. The summary I drafted is 4 sentences and 92 words. Concision is a virtue. Yeazell pp. 372 Q1 Read 42 U.S.C. § 1985(2) carefully (Yeazell p. 373). What are the elements of a cause of action under that statute? That is, list all the things that the plaintiff will have to prove to prevail if the case goes to trial. For each element you listed, find the corresponding allegations in the complaint (pp. 370-71). Questions 1 & 2 on Yeazell pp. 376-77 Questions 1 & 2 on Yeazell pp. 382-83 17