1. 1 Agenda for 4th Class Misc –Name plates out –Lunch on Friday 11:30 or 11:45 better than noon? Iqbal Questions on Pleading Intro to Rule 11

2. 2 Assignment for Next Class FRCP 11; Yeazell 412-26; A Civil Action through p. 119 (Ch. 4, “Rule 11”) Background –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 Questions to think about & Writing Assignment for Group 4 –Briefly summarize Walker v Norwest and Christian v Mattell –Yeazell pp. 415-6. Qs 1-5; pp. 419-20 Qs 1, 2c&d, –Hypos on next 2 pages –Questions on A Civil Action (5 th Slide)

3. 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. 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…” Prof. Bice 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.

4. 4 Would Rule 11 Sanctions Be Appropriate If … Same as previous question, except that you do not cite the Supreme Court decision and Prof. Bice’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 5

6. 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) –Understand case law about § 1985(2) –May raise difficult issues about what valid claim requires 12(b)(6) can lead to resolution of difficult legal questions –Supreme court resolves meaning of “property” in § 1985(2) in Haddle 2 issues resolved by 12(b)(6) motion –Does law support claim (Haddle) –Is claim factually plausible (Iqbal) 12(b)(6) motion is called “demurrer” in many states 6

7. 7 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 1 st and 5 th 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?

8. 8 Questions on Pleading Yeazell p. 399-400 Q2 Questions on last page of Pleading Handout

9. 9 Intro to 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. 11(c)(2)

10. 10 Intro to Rule 11 (cont.) Judge may order sanctions without motion, but must issue show cause order first –Cannot order monetary 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