Agenda for 4th Class

1. Agenda for 4th Class • Misc. • Name plates out • Slide handout • Lunch next Friday • Pleading • Iqbal • Rule 11 • Answer • Intro to 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 for everyone to think about & Writing Assignment for Group 6 • Questions on A Civil Action (next slide) • Amendment • Rule 15 • Yeazell445-58 • Blackboard Questions on Amendment • Questions for everyone to think about & Writing Assignment for Group 7 • Summarize Beeck v Aquaslide • Yeazellp. 450ff Qs 1, 3b • Summarize Moore v Baker and Bonerb v Caron Foundation • Yeazell p. 456ff Qs 3c, 4 • 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 • Glannon383-407 (Amendment & Relation Back)

3. 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

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) • 12(b)(6) can lead to resolution of difficult legal questions • Supreme court resolves meaning of “property” in § 1985(2) in Haddle

5. 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

6. 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 allgations • 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

7. 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

8. 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 emails, 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

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. 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. 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. Would Rule 11 Sanctions Be Appropriate If … • Prof. Erman 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. Erman’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. 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)

14. 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

15. Answer Questions • 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. 439-41. Q1b, 1c, 2a, 2c, 3, 4a, 6c • Is it plausible that PPI acted in good faith without intent to deceive?

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. 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 90 days of filing of complaint (plus extensions), defendant had actual notice of lawsuit (even if did not receive service of process) • Within 90 days of filing of complaint (plus extensions), defendant knew or should have known that plaintiff made a mistake about identity of proper defendant