1. Agenda for 5th Class Misc. Name plates out Slide handout
1995 Exam handout
Rule 11 (continued)
Questions
A Civil Action
Answer
Amendment
Intro to Relation Back

2. Assignment for Next Class I
Relation Back
Rule 15(c). Make 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
Yeazell
Q1. Summarize Moore v Baker and Bonerb v Caron Foundation (WG4)
Q2. Make an argument based on Rule 15(a) that the motion to amend in Moore should have been denied (WG3)
Q3. Make an argument based on Bonerb that relation back should have been allowed in Moore (WG2)
Q4. Make an argument based on Moore that relation back should have ben allowed in Bonerb (WG4)
Q5. Yeazell p. 457 Q4b (WG3),
Q6. Yeazell p. 457 Q4c (WG2)
Optional. Glannon (Relation Back), Examples 9-14

3. Assignment for Next Class II
1995 Exam, Part II (the only part I am giving you now)
This is for everyone to do, and the writing assignment for WG1
Take as long as you need.
For T 9/24. A Civil Action through p. 263
Questions on Discovery in A Civil Action (next slide)

4. Discovery in A Civil Action
Explain how Shlichtmann got information to build his case. What discovery devices did he use? What methods other than discovery did Schlichtman use to get information?
Explain what happened on pp Why did Cheeseman and Frederico object when Schlichtmann asked Love whether he was concerned when he found out that the wells were contaminated? Why didn’t they instruct Love not to answer? Why did Schlictmann ask these questions?
Explain what happened at “the woodshed”? What rules had Schlichtmann violated which led to the woodshed? Why does Shlichtmann say he’s “sorry Judge Skinner wasn’t a party to the agreement“? (pp. 222 & 226) What sanction(s) did the judge impose? Why was the woodshed so important?
If you were Schlichtman, how would you have handled the settlement negotiation with Facher differently? (pp ). Why do you think Schlichtman acted as he did?

5. Last Class: Iqbal 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
May result in dismissal of valid claims for which discovery needed to plead plausible facts
May not matter, because most lawyers would only take plausible claims before Iqbal
So now two primary reasons to grant 12(b)(6) motion
Law doesn’t support claim (Haddle)
Invalid legal theory
Claims are implausible (Iqbal)
Less common reasons to grant 12(b)(6) motion
Missing element, Affirmative defense

6. Last Class: Rule 11 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
Research must be reasonable under the circumstances
Cannot later advocate problematic paper, but need not amend
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

7. 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…”

8. Would Rule 11 Sanctions Be Appropriate If …
Prof. Brown 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. Brown’s article.
Same as previous question, except that you do not cite the Supreme Court decision and Prof. Brown’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.

9. 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 ). What part(s) of Rule 11 would Schlictmann rely on?

10. 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)

11. 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

12. Answer Questions
Briefly summarize Zielinski v PPI. Your summary should include answers to the following questions
What does it mean that “defendant is estopped from denying agency” What rule authorized the court to do this?
Yeazell p Q1b, 1c, 2a, 2c
Yeazell p. 431 Q3
Is it plausible that PPI acted in good faith without intent to deceive?
Could the judge in Zielinski have reached the same result – forcing PPI to (falsely) admit the Johnson was his employee and estopping PPI from denying agency – using one or more of the following rules: 11
26(a)(ii)
26(e)(1)
26(g)
Yeazell pp. 433, Q6c

13. 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.”
Key factors
Timing
Fault
Prejudice – How much worse off is defendant than if amended pleading had been original pleading?

14. Amendment Questions
Summarize Beeck v Aquaslide. Your summary should include an answer to Yeazell pp Q1.
Yeazell p. 443 Q3b

15. 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

16. Relation Back Technically Amendment issue should be resolved first
If Amendment allowed and statute of limitations has run out, then defendant should make motion for summary judgment based on statute of limitations
Plaintiff should raise relation back in response to summary judgment motion
In practice
Defendant opposes amendment by arguing that statute of limitations has run out and that relation back does not apply
Judge denies amendment if statute of limitations has run out and relation back does not apply
“justice does not require” amendment if statute of limitations has run out
Waste of time to allow amendment if defendant can bring successful summary judgment motion based on statute of limitations
Practice is sensible and correct