1. 1 Agenda for 4th Class Admin –Handouts –Name plates Rule 11 –Hypotheticals –Christian v Mattel –A Civil Action Answer –Zielinsky

2. Assignment for Next Class Review any materials or questions we didn’t cover in class on Tuesday Continue reading A Civil Action Read through p. 263 by Tuesday, October 1 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 –Yeazell p. 443 Qs 1, 2 –Yeazell p. 448ff Qs 1, 3b, –Yeazell p. 454ff Qs 1-2, 4c, 5b Optional. Glannon 383-407 (Amendment & Relation Back) 1995 Exam (handout) –Assume that Ms. Wagner knows what Joanna Reed told Mr. Frykes 2

3. 3 Intro to 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.” Rule 15(c). Relation back –Sometimes amendment is ok, even if the statute of limitations has run out between the time the original complaint was filed and the time the amendment is filed –Don’t analyze 15(c) unless there’s a statute of limitations problem –15(c)(1)(B). If not changing the party –15(c)(1)(c). If changing party

4. Review of Last Class Iqbal –2 step analysis Ignore conclusory allegations Analyze remaining facts for plausibility –Are facts consistent with lawful behavior by the defendant? –Given facts plead, is it likely that defendant behaved lawfully? –May not be that different from what lower courts actually did before Iqbal –Very controversial because Requires judge to guess what plausible or likely Meritorious cases may be dismissed, b/c lawyer doesn’t know necessary facts without discovery Rule 11 –Lawyer must make reasonable inquiry so that papers: Are supported by existing law or a nonfrivolous argument to change the law. 11(b)(2) Have evidentiary support or will likely have evidentiary support after discovery. 11(b)(3) 4

5. Rule 11 Questions Yeazell pp. 415-6. Qs 1c-5; pp. 419-20 Qs 1, 2c&d Briefly summarize Christian v Mattell 5

6. 6 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 rent check. A canceled check indicates that the check was received and cashed or deposited. Plaintiff comes in and says that defendant ran a 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…”

7. 7 Would Rule 11 Sanctions Be Appropriate If … 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. 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 an 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.

8. 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? 8

9. Answer Defendant must admit or deny all allegations in the complaint –Must admit or deny in detail Fact by fact Even denial of whole sentence may be insufficiently detailed –Can claim lack of knowledge only if lack knowledge “after reasonably inquiry” –Answer must comply with Rule 11(d)(4) “denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.” Questions –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? 9