Civil Procedure – Jan. 23

1. Civil Procedure – Jan. 23 Rule 9 and complaints

2. Stratford v. Zurich Insur. [Rule 9(b)]cb p 365 • What are the basic facts? • Which claim alleges fraud? Why? • If we take the facts as recited, has Dr. Stratford committed fraud?

3. Stradford cont’d • What was the problem with the counter-claim – why was it dismissed? • What will the insur. company have to do to fix the complaint? • What ultimately happened & why?

4. In terrorem • The Rules book notes that some claims, like fraud, may have an interrorem effect on defendants and their reputations. What is an in terrorem effect? • What are the goals of the rule’s specificity requirements? (p. 267) • How much specificity is required?(p. 268-69)

5. Policy & strategy • Why single out claims of fraud & mistake for more specific pleadings? Why do we allow general pleading for state of mind? • Why plead fraud in Stratford? Why not just plead breach of contract? • Tactically – was it a good/bad idea to move to dismiss the counterclaim under Rule 9(b)?

6. Hypo – Plaintiff alleges: • Defendant corporation violated Rule 10b(5) of the Securities Act by putting false and misleading information in its prospectus and annual reports from 1998-2001. Plaintiffs reasonably relied on that information in making investments and as a result thereof, plaintiff suffered financial losses in excess of $75,000. Is this complaint adequate?

7. Preparing to file a lawsuit • 1. Identify the potential parties • 2. Identify the potential claims against each party • 3. Identify which court you will file in • 4. Draft the complaint

8. Questions • What questions did you have when you were drafting the complaint?(Write them down and if we don’t cover them in discussion we will answer them later) • Exchange complaints with colleague and see how someone else approached this

9. The insurance morass • The problem states that Drip Electrical has a policy of $100,000/$200,000; the Drip parents have a policy of $30,000/$60,000 which covers Debbie Drip and the Dolts have a policy of $50,000/$100,000 which covers Diana if she is involved in a wreck while driving another car. What is the relevance of this information? What questions should it make you think about?

10. Insurance ?s • Do you have to sue the parents to get to their insurance coverage to apply to this lawsuit? (where would you look to find this out?) • Does the location of the insurance company have anything to do with where you would file this case? (Hint: are you suing the insurance company?)

11. Naming the Parties • Who is the plaintiff? • Who are the potential defendants? • Would you name David & Dorothy Drip individually as defendants or would you name Drip Electrical Corp (or both)? Why? • Others not named in our hypo

12. What are the potential claims against each defendant • Diana Drip • Debbie Dolt • Drip Electrical Corp

13. Where to file • How do you decide which court has personal jurisdiction? • Which court has venue? (28 USC s. 1391) • Where are you going to file this lawsuit (note – in real life, you also would debate btwn filing in state versus fed’l court)

14. caption • In the United States District Court • For the ___________ District of ______ • _____________ Division Paul Pearson Plaintiff Civil Action #_______ v. (Insert defendants) COMPLAINT

15. Jurisdiction/Venue Allegations • Plaintiff, Paul Pearson (hereinafter “plaintiff” alleges: • JURISDICTION and VENUE* • 1. Plaintiff is a citizen of _______ • 2. Defendant Debbie Dolt (hereinafter Dolt) is a citizen of _________ • 3. Defendant Diana Drip (hereinafter Drip) is a citizen of _________ • 4. Defendant Dolt Electrical Corp. (hereinafter Dolt Electrical) is a corporation incorporated under the laws of the State of _______ having its principal place of business in _______. • 5. The matter in controversy exceeds, exclusive of interest and costs, the sum specified by 28 USC s. 1332 (or exceeds $75,000) • 6. Jurisdiction in this matter is proper under 28 U.S.C. s. 1332 • 7. Venue is proper in the ______ District of _______ because . . .**

16. Body of Complaint • This should tell a story but it can be a detailed or sparse story – your call. The key is to try and pull facts together in chronological order (or in some other organized way) so that the reader can follow what happened.

17. Why tell a story • Who reads the complaint? Who are you trying to influence? Why try and tell a story? • What kind of language should you use? What should your tone be? (factual/argumentative???)

18. The short story - is this an adequate complaint? • 8. At approximately 1:30 a.m. on April 8, defendant Dolt was driving a red Ford van owned by defendant Drip Electrical. • 9. Alternatively, at approximately 1:30 a.m. on April 8, defendant Drip was driving a red Ford van owned by defendant Drip Electrical.** • 10. The driver of the red Ford van went through a red light at the intersection of Main Street and First Avenue in Ft. Lauderdale, Florida, colliding with a car driven by the plaintiff. • 11 (damages paragraph & sign off) • ** Why did I write it this way instead of saying: At approximately 1:30 am, defendant Dolt or defendant Drip was driving a red Ford van ,. . .

19. A more detailed complaint (claims follow on next slide) • 8. On April 8, 2004 at approximately 1:30 a.m., plaintiff was driving a rented blue Chevrolet in Ft. Lauderdale, Florida. • 9. On the night of April 7 and into the early morning hours of April 8, defendants Drip and Dolt, two teenagers, were attending parties where alcohol was served. • 10. On information and belief, defendant Drip consumed alcoholic beverages on the night of April 7. Defendant Dolt observed defendant Drip consuming alcohol that night. • 11. At approximately 1:30 a.m. on April 8, defendant Dolt was driving a red Ford van owned by defendant Drip Electrical. • 12. Alternatively, at approximately 1:30 a.m. on April 8, defendant Drip was driving a red Ford van owned by defendant Drip Electrical.** • 13. The driver of the red Ford van went through a red light at the intersection of Main Street and First Avenue in Ft. Lauderdale, Florida, colliding with a car driven by the plaintiff.

20. Longer complaint cont’d • First Claim – Negligence of Defendant Drip • 14 Plaintiff incorporates paragraphs 1 -13 above. • 15. Defendant Drip was negligent in, but not limited to, the following ways: • A. She consumed alcohol before driving; • B. She refused to allow defendant Dolt to drive her vehicle, despite Defendant Dolt’s request to do so • C. She failed to drive with due care and caution; • D She proceeded through an intersection when she had the red light; • E. She failed to drive in the manner that a reasonable person under the same or similar circumstances would drive • 16. As a direct and proximate result of Defendant Drip’s negligence, plaintiff was injured in, but not limited to, the following ways: (list injuries). • (additional claims on the following slides)

21. Additional Claims • Second Claim – Willful and Wanton Negligence of Defendant Drip • 17. Plaintiff incorporates paragraphs 1-13, 15-16 above. • * Defendant Drip was willfully and wantonly negligent in, but not limited to, the following ways: (list ways negligent) • * causation/damages allegation • Third Claim – Negligence of Defendant Dolt • Fourth Claim – Respondeat Superior Liability of Defendant Drip Electrical

22. Damages & Request for Relief • __. As a result of the collision, plaintiff was severely injured, had broken limbs and lacerations, suffered and continues to suffer great physical and emotional pain, has permanent scars, incurred medical expenses of approximately $20,000 and will incur future medical expenses, was forced to lose $8,000 in college tuition, and suffered other economic damages, including potential lost income. These damages are in excess of $75,000. • QUERY: WHERE DO YOU FIND WHAT DAMAGES YOU ARE ENTITLED TO?

23. The final pieces • JURY TRIAL DEMANDED* • Wherefore, plaintiff demands judgment against defendants individually and/or jointly and severally in excess of $75,000 excluding costs and interests, and for such other relief as the Court deems just and proper. (IF THERE IS A WILLFUL AND WANTON CLAIM, ALSO YOU WOULD ASK FOR PUNITIVE DAMAGES) • Signed______________ • Attorney for Plaintiff • (insert bar # and address/phone #) • * VERY IMPORTANT – if want jury trial, must ask for it

24. Your unanswered ?s

25. Rule 11 – from ACA • Video clip from ACA about Rule 11 – tactical issues

26. Rule 11 Sanctions - ACA • The Rule 11 motion was the first one filed in the Anderson case. • Do you think Rule 11 was helpful or harmful to the plaintiffs? • Do you think the Rule 11 motion helpful or harmful to the defendants?

27. The initial Rule 11 motion • Cheeseman (on behalf of Grace) argued that R. 11 sanctions should apply because there was not any scientific or medical evidence associating the chemicals with leukemia. • Do you think this was a facially valid Rule 11 motion?

28. Jerry Facher’s take on the Rule 11 motion • “I didn’t think that in the beginning with a high –profile case brought by our citizens, some of whom were seriously injured, that any Judge was going to throw the case out on Rule 11. So, I politely declined to joint that” • Do you agree with Facher’s position? • Should a judge be influenced by the fact that it’s a high profile case? How about by the fact that the plaintiffs are seriously injured?

29. Cheeseman’s view • “The most starting aspect of my experience of the Rule 11 motion had to do with the way the Judge contemplated handling the hearing” Do you agree with the procedure Judge Skinner used (allowing Cheeseman to ask Schlictmann questions via the judge)? What would be a better procedure?

30. Skinner’s take on the motion • “”I had a hearing and the plaintiffs came and said, ‘we’ve gotten opinions from acknowledged experts and we are ready to go forward.’ I said, “well, o.k., that’s good enough for me” • Do you agree with his ruling on the Rule 11 motion?

31. The Final Rule 11 Motion • When asking for a new trial, Jan also asked for Rule 11 sanctions against Beatrice for withholding evidence. In support of that motion, Jan gave the court the plaintiff’s work files. Judge Skinner determined from those files that plaintiffs lacked any substantive evidence that Beatrice had disposed of TCE. Thus, the judge imposed R. 11 sanctions on both parties. Do you agree with that ruling?

32. Query • Are there lessons from the Anderson case that provide a model about litigation strategy? Do you think the Rule 11 motion was a good or bad strategy at the start of this litigation; at the end of the litigation?