1. 1 Agenda for 3rd Class Misc. –Nameplates out –Handouts Slides –If you have extra handouts or sign up sheet, pass them on or give them back to me Service under FRCP (continued) Complaint and Motion to Dismiss History of pleading Intro to Iqbal Intro to Rule 11 Intro to Answer

2. 2 Assignment for Next Class I Complaint & 12(b)(6) Motion (continued) –FRCP 9, 10, 12(e) –Yeazell pp. 386-403 –Questions for next class and Writing assignment for Group 4/5 The Supreme Court in Iqbal set out a two-test for 12(b)(6) motions. First, ignore conclusory allegations. Second, check whether remaining allegations “plausibly” state a valid claim for relief. How did the Supreme Court apply the two-step test to the complaint in Ashcroft v. Iqbal itself? (For Group 4) How would the Haddle complaint be analyzed after Iqbal? –What allegations would be ignored as conclusory? –Do the remaining allegations present a plausible claim? –These 3 related questions are for Group 5 After Iqbal, would you expect defendants to win a greater or lesser percentage of 12(b)(6) motions? (For Group 4) If you were on the Supreme Court, would you vote to overturn Iqbal? Why or why not? (For Group 5)

3. 3 Assignment for Next Class II Rule 11 –FRCP 11 –Yeazell 416-29 –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 5 and 6) Remember assignment for Friday 9/9 –Read A Civil Action through p. 119 –Questions on A Civil Action. See website

4. 4 Assignment for Next Class III Answer –FRCP 8(b)&(c), 11(b)(4) –Yeazell 429-41 –3 Blackboard questions on Answer –Questions to think about & Writing Assignment for Group 5 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? –Optional: Glannon 659-74 (You can ignore material about counterclaims)

5. 5 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…”

6. 6 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.

7. 7 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

8. 8 Questions on Service of Process Under FRCP II 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? I do not encourage you to do research to find the information you would need. Rather, I hope you will read FRCP 4 carefully to see what provision or provisions of it could be construed under some circumstances to allow electronic service of process.

9. 9 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

10. 10 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?

11. 11 Questions on Complaint & 12(b)(6) Read 42 U.S.C. § 1985(2) carefully (Yeazell p. 375). 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. 372-74).

12. 12 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) –Former Form 11: “defendant negligently drove a motor vehicle” “negligently” is usually considered a legal conclusion –“drove dunk” or “drove 10 miles over speed limit” “or “drove while texting” would be fact

13. 13 History of Pleading II Notice Pleading (continued) –Drafters of FRCP wanted to resolve issues on merits (facts) rather than on pleading technicalities –Drafters thought it best for nearly all cases to go to discovery Unless law meant success on merits was impossible –They didn’t realize how expensive, time-consuming, and intrusive discovery would become –Modern pressure to tighten pleading standards stems from view that it is unjust, unfair, and inefficient to subject defendants to expensive discovery if plaintiff’s case likely lacks merit Goal is to use pleading and 12(b)(6) to make sure only plausibly meritorious cases get to discovery –Problem: unclear whether can tell from complaint whether plaintiff’s case likely lacks merit If defendant is concealing evidence, case may have merit, even though plaintiff has little evidence at outset.

14. 14 History of Pleading III Iqbal –Back to requirement to plead facts? Form 11 (and all other forms) removed from FRCP in 2015 Why matters –Notice pleading allows weak claims to get to discovery Discovery is very expensive, so fact pleading can save money/time –Fact pleading 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?

15. 15 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

16. 16 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

17. 17 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

18. 18 Responding to Complaint I Defendant has 2 options in responding to complaint –Motion to Dismiss (Rule 12) OR 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 in answer, not called “12(b)(6)” or “12(b)(5)” Difference between motion and answer –Motion asks the court to do something –Answer just preserves right to raise later on and to do discovery on issue Motions to Dismiss -- See grounds in FRCP 12(b) Motion for more definite statement 12(e) –Rarely granted –Judges would prefer that parties figure things out through discovery

19. 19 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 Motion for judgment on the pleadings. Rule 12(c) Appropriate when, taking all the facts in the answer as true, the plaintiff would be entitled to judgment. Very rare