1. 1 Agenda for 3rd Class Misc. –Nameplates out –Audio recordings –Model answers Finish up Service of Process Introduction to Motion to Dismiss Haddle History of pleading

2. 2 Assignment for Next Class FRCP 9, 10, 12(e); Forms 7, 10, 11 Yeazell pp. 384-401 Pleading Handout Questions for next class and Writing assignment for Group 3 –Questions on last page of Pleading Handout –Yeazell p. 399-400 Q2 –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?

3. 3 Last Class Service of Process under FRCP –Pretty straightforward application of relatively simple rules –Separate rules for individuals and corporations – 4(e) and 4(h) –Can take advantage of state procedures as well as procedures explicitly set out in FRCP –Must be constitutional But usually pretty clear Service by posting under Cal Civil Code of dubious constitutionality

4. 4 Service of Process Questions II 5) It has been proposed that the Federal Rules of Civil Procedure should be amended to add a new FRCP (4)(e)(2)(D) that would read: –(D) delivering a copy of each by electronic means at a location previously accessed by the individual within 60 days before the copy is delivered. a) Is this proposed amendment constitutional? What factors are relevant to this question? b) Is this amendment a good idea? If you were on the Rules Advisory Committee, would you recommend its adoption? c) If it were your responsibility to draft a new rule relating to electronic service of process, would you propose different language? If so, draft the rule you would propose. 6) 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.

5. 5 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 –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

6. 6 Haddle 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! Yeazell pp. 372 Q1 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. 370-71). Questions 1 & 2 on Yeazell pp. 376-77 Questions 1-2 on Yeazell pp. 382-83

7. 7 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) –Form 11 is example of notice pleading: “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 facts

8. 8 History of Pleading II Iqbal –Back to requirement to plead facts? Why matters –Notice pleading allows weak claims to get to discovery Discovery is very expensive So fact pleading can same money and 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?