Civil Procedure – Jan. 23

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Civil Procedure Jan. 23

• Rule 9 and complaints

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Stratford v. Zurich Insur. Rule 9(b)cb p 365

• What are the basic facts?
• Which claim alleges fraud? Why?
• If we take the facts as recited, has Dr.
  Stratford committed fraud?

3
Stradford contd

• What was the problem with the counter-claim why
  was it dismissed?
• What will the insur. company have to do to fix
  the complaint?
• What ultimately happened why?

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In terrorem

• The Rules book notes that some claims, like
  fraud, may have an interrorem effect on
  defendants and their reputations. What is an in
  terrorem effect?
• What are the goals of the rules specificity
  requirements? (p. 267)
• How much specificity is required?(p. 268-69)

5
Policy strategy

• Why single out claims of fraud mistake for more
  specific pleadings? Why do we allow general
  pleading for state of mind?
• Why plead fraud in Stratford? Why not just plead
  breach of contract?
• Tactically was it a good/bad idea to move to
  dismiss the counterclaim under Rule 9(b)?

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Hypo Plaintiff alleges

• Defendant corporation violated Rule 10b(5) of the
  Securities Act by putting false and misleading
  information in its prospectus and annual reports
  from 1998-2001. Plaintiffs reasonably relied on
  that information in making investments and as a
  result thereof, plaintiff suffered financial
  losses in excess of 75,000.
• Is this complaint adequate?

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Preparing to file a lawsuit

• 1. Identify the potential parties
• 2. Identify the potential claims against each
  party
• 3. Identify which court you will file in
• 4. Draft the complaint

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Questions

• What questions did you have when you were
  drafting the complaint?(Write them down and if we
  dont cover them in discussion we will answer
  them later)
• Exchange complaints with colleague and see how
  someone else approached this

9
The insurance morass

• The problem states that Drip Electrical has a
  policy of 100,000/200,000 the Drip parents
  have a policy of 30,000/60,000 which covers
  Debbie Drip and the Dolts have a policy of
  50,000/100,000 which covers Diana if she is
  involved in a wreck while driving another car.
  What is the relevance of this information? What
  questions should it make you think about?

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Insurance ?s

• Do you have to sue the parents to get to their
  insurance coverage to apply to this lawsuit?
  (where would you look to find this out?)
• Does the location of the insurance company have
  anything to do with where you would file this
  case? (Hint are you suing the insurance
  company?)

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Naming the Parties

• Who is the plaintiff?
• Who are the potential defendants?
• Would you name David Dorothy Drip individually
  as defendants or would you name Drip Electrical
  Corp (or both)? Why?
• Others not named in our hypo

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What are the potential claims against each
defendant

• Diana Drip
• Debbie Dolt
• Drip Electrical Corp

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Where to file

• How do you decide which court has personal
  jurisdiction?
• Which court has venue? (28 USC s. 1391)
• Where are you going to file this lawsuit (note
  in real life, you also would debate btwn filing
  in state versus fedl court)

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caption

• In the United States District Court
• For the ___________ District of ______
• _____________ Division
• Paul Pearson
• Plaintiff Civil Action _______
• v.
• (Insert defendants) COMPLAINT

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Jurisdiction/Venue Allegations

• Plaintiff, Paul Pearson (hereinafter plaintiff
  alleges
• JURISDICTION and VENUE
• 1. Plaintiff is a citizen of _______
• 2. Defendant Debbie Dolt (hereinafter Dolt) is a
  citizen of _________
• 3. Defendant Diana Drip (hereinafter Drip) is a
  citizen of _________
• 4. Defendant Dolt Electrical Corp. (hereinafter
  Dolt Electrical) is a corporation incorporated
  under the laws of the State of _______ having its
  principal place of business in _______.
• 5. The matter in controversy exceeds, exclusive
  of interest and costs, the sum specified by 28
  USC s. 1332 (or exceeds 75,000)
• 6. Jurisdiction in this matter is proper under
  28 U.S.C. s. 1332
• 7. Venue is proper in the ______ District of
  _______ because . . .

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Body of Complaint

• This should tell a story but it can be a detailed
  or sparse story your call. The key is to try
  and pull facts together in chronological order
  (or in some other organized way) so that the
  reader can follow what happened.

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Why tell a story

• Who reads the complaint? Who are you trying to
  influence? Why try and tell a story?
• What kind of language should you use? What
  should your tone be? (factual/argumentative???)

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The short story - is this an adequate complaint?

• 8. At approximately 130 a.m. on April 8,
  defendant Dolt was driving a red Ford van owned
  by defendant Drip Electrical.
• 9. Alternatively, at approximately 130 a.m. on
  April 8, defendant Drip was driving a red Ford
  van owned by defendant Drip Electrical.
• 10. The driver of the red Ford van went through
  a red light at the intersection of Main Street
  and First Avenue in Ft. Lauderdale, Florida,
  colliding with a car driven by the plaintiff.
• 11 (damages paragraph sign off)
• Why did I write it this way instead of saying
  At approximately 130 am, defendant Dolt or
  defendant Drip was driving a red Ford van ,. . .

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A more detailed complaint (claims follow on next
slide)

• 8. On April 8, 2004 at approximately 130 a.m.,
  plaintiff was driving a rented blue Chevrolet in
  Ft. Lauderdale, Florida.
• 9. On the night of April 7 and into the early
  morning hours of April 8, defendants Drip and
  Dolt, two teenagers, were attending parties where
  alcohol was served.
• 10. On information and belief, defendant Drip
  consumed alcoholic beverages on the night of
  April 7. Defendant Dolt observed defendant Drip
  consuming alcohol that night.
• 11. At approximately 130 a.m. on April 8,
  defendant Dolt was driving a red Ford van owned
  by defendant Drip Electrical.
• 12. Alternatively, at approximately 130 a.m. on
  April 8, defendant Drip was driving a red Ford
  van owned by defendant Drip Electrical.
• 13. The driver of the red Ford van went through
  a red light at the intersection of Main Street
  and First Avenue in Ft. Lauderdale, Florida,
  colliding with a car driven by the plaintiff.

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Longer complaint contd

• First Claim Negligence of Defendant Drip
• 14 Plaintiff incorporates paragraphs 1 -13
  above.
• 15. Defendant Drip was negligent in, but not
  limited to, the following ways
• A. She consumed alcohol before driving
• B. She refused to allow defendant Dolt to drive
  her vehicle, despite Defendant Dolts request to
  do so
• C. She failed to drive with due care and
  caution
• D She proceeded through an intersection when she
  had the red light
• E. She failed to drive in the manner that a
  reasonable person under the same or similar
  circumstances would drive
• 16. As a direct and proximate result of
  Defendant Drips negligence, plaintiff was
  injured in, but not limited to, the following
  ways (list injuries).
• (additional claims on the following slides)

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Additional Claims

• Second Claim Willful and Wanton Negligence of
  Defendant Drip
• 17. Plaintiff incorporates paragraphs 1-13,
  15-16 above.
• Defendant Drip was willfully and wantonly
  negligent in, but not limited to, the following
  ways (list ways negligent)
• causation/damages allegation
• Third Claim Negligence of Defendant Dolt
• Fourth Claim Respondeat Superior Liability of
  Defendant Drip Electrical

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Damages Request for Relief

• __. As a result of the collision, plaintiff was
  severely injured, had broken limbs and
  lacerations, suffered and continues to suffer
  great physical and emotional pain, has permanent
  scars, incurred medical expenses of approximately
  20,000 and will incur future medical expenses,
  was forced to lose 8,000 in college tuition, and
  suffered other economic damages, including
  potential lost income. These damages are in
  excess of 75,000.
• QUERY WHERE DO YOU FIND WHAT DAMAGES YOU ARE
  ENTITLED TO?

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The final pieces

• JURY TRIAL DEMANDED
• Wherefore, plaintiff demands judgment against
  defendants individually and/or jointly and
  severally in excess of 75,000 excluding costs
  and interests, and for such other relief as the
  Court deems just and proper. (IF THERE IS A
  WILLFUL AND WANTON CLAIM, ALSO YOU WOULD ASK FOR
  PUNITIVE DAMAGES)
• Signed______________
• Attorney for Plaintiff
• (insert bar and address/phone )
• VERY IMPORTANT if want jury trial, must ask
  for it

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Your unanswered ?s
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Rule 11 from ACA

• Video clip from ACA about Rule 11 tactical
  issues

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Rule 11 Sanctions - ACA

• The Rule 11 motion was the first one filed in the
  Anderson case.
• Do you think Rule 11 was helpful or harmful to
  the plaintiffs?
• Do you think the Rule 11 motion helpful or
  harmful to the defendants?

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The initial Rule 11 motion

• Cheeseman (on behalf of Grace) argued that R. 11
  sanctions should apply because there was not any
  scientific or medical evidence associating the
  chemicals with leukemia.
• Do you think this was a facially valid Rule 11
  motion?

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Jerry Fachers take on the Rule 11 motion

• I didnt think that in the beginning with a high
  profile case brought by our citizens, some of
  whom were seriously injured, that any Judge was
  going to throw the case out on Rule 11. So, I
  politely declined to joint that
• Do you agree with Fachers position?
• Should a judge be influenced by the fact that
  its a high profile case? How about by the fact
  that the plaintiffs are seriously injured?

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Cheesemans view

• The most starting aspect of my experience of the
  Rule 11 motion had to do with the way the Judge
  contemplated handling the hearing
• Do you agree with the procedure Judge Skinner
  used (allowing Cheeseman to ask Schlictmann
  questions via the judge)?
• What would be a better procedure?

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Skinners take on the motion

• I had a hearing and the plaintiffs came and
  said, weve gotten opinions from acknowledged
  experts and we are ready to go forward. I said,
  well, o.k., thats good enough for me
• Do you agree with his ruling on the Rule 11
  motion?

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The Final Rule 11 Motion

• When asking for a new trial, Jan also asked for
  Rule 11 sanctions against Beatrice for
  withholding evidence. In support of that motion,
  Jan gave the court the plaintiffs work files.
  Judge Skinner determined from those files that
  plaintiffs lacked any substantive evidence that
  Beatrice had disposed of TCE. Thus, the judge
  imposed R. 11 sanctions on both parties. Do you
  agree with that ruling?

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Query

• Are there lessons from the Anderson case that
  provide a model about litigation strategy? Do
  you think the Rule 11 motion was a good or bad
  strategy at the start of this litigation at the
  end of the litigation?