Agenda for 3rd Class

1. Agenda for 3rd Class • Misc. • Name plates out • Slide handout • Pleading • Haddle • Iqbal • Pleading Handout • Intro to Rule 11

2. Assignment for Next Class • Rule 11 • FRCP 11 • Yeazell 412-26 • 3 Blackboard Questions on Rule 11 • Questions to think about & Writing Assignment for Group 4 • 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? • “Would Rule 11 Sanctions be Appropriate If” (Slides 3 and 4) • Read A Civil Action through p. 119 • Questions to think about & Writing Assignment for Group 5 • Questions on A Civil Action (Slide 5)

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. 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…”

4. 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 • Same as previous question, except that you do not cite the Supreme Court decision and Prof.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.

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

6. Last Class • Formulate a holding • For each case you read, try to formulate holding (rule of law) that best summarizes cases • Greene: Posting is an unconstitutional way of serving process when, as in a public housing project, the papers are likely to be taken down. • Factors relevant to constitutionality of service of process • Probability that defendant will receive actual notice • Stakes • Existence of practical alternatives that are • More reliable • Not much more costly • Service of Process under FRCP • Separate subsections for corporations and individuals • Can use state rules too • Electronic service of process allowed under some provisions already

7. 12(b)(6) Motion to Dismiss • 12(b)(6). Defendant challenges complaint by making motion to dismiss for failure to state a claim upon which relief can be granted • Judge assumes all facts in complaint (but not legal conclusions) are true • Case dismissed if law would not grant relief • Assuming all facts in complaint are true • If motion denied, defendant can still challenge truth of factual allegations • See handout for problems justifying dismissal • If motion granted, plaintiff almost always has chance to amend • Core purpose – dismiss claims not supported by law • Not that may require resolution of difficult, close, and/or new legal issues • Newer purpose – dismiss claims with insufficient factual support • See Iqbal. very controversial, because plaintiff may need discovery to get factual support, but not discovery if case dismissed • Called “demurrer” in common law and in many state law systems

8. Questions on Complaint & 12(b)(6) • 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! • As stated in Haddle v. Garrison, a "court must assume that all of the factual allegations of the complaint are true." Paragraph 21 of the complaint asserts that "Plaintiff has been injured in his person and property." Why wasn't this allegation sufficient to defeat the defendant's motion to dismiss? • The plaintiff in Haddle v. Garrison, won a great victory in the U.S. Supreme Court. Does that mean that the case is over and that the defendant must pay the plaintiff the compensatory and punitive damages requested in the complaint's Prayer for Relief? If not, what happens next?

9. Questions on Complaint & 12(b)(6) • 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. 370-72).

10. 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. • Those 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 • 2 step test • Exclude all conclusory allegations • Examine rest of complaint for plausibility • Are there factual allegations relating to each element? • Or can phrase as 3-step test (see next slide)

11. Questions on Iqbal • The Supreme Court in Iqbal set out a three-step test for 12(b)(6) motions. First, ignore conclusory allegations. Second, ignore implausible allegations. Third, check whether remaining allegations state a valid claim for relief. How did the Supreme Court apply the three-step test to the complaint in Ashcroft v. Iqbal itself? • How would the Haddle complaint be analyzed after Iqbal? • What allegations would be ignored as conclusory? • Do the remaining allegations present a plausible claim? • 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? • Pleading Handout

12. Background on SMJ for Walker • 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

13. 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

14. 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