Agenda for 5th Class

1
Agenda for 5th Class

• Misc.
• Name plates out
• Lunch next Friday, 1/31
• Rule 11

2
Assignment for Next Class

• FRCP 8(b)(c), 11(b)(4) Form 30
• Yeazell 426-38
• Questions to think about Writing Assignment for
  Group 5
• Briefly summarize Zielinsky v PPI
• What does Zielinsky mean by defendant is
  estopped from denying agency
• What rule authorized the court to do this?
• Yeazell pp. 436-7. Q1b, 1c, 2a, 2c, 3, 4a, 6
• Is it plausible that PPI acted in good faith
  without intent to deceive?
• Read A Civil Action through p. 263 by M 2/10
• See questions on next slide
• Optional Glannon 659-74 (You can ignore material
  about counterclaims)

3
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. 162-65. Why did
  Cheeseman and Frederico object when Schlichtmann
  asked Love whether he was concerned when he found
  out that the wells were contaminated? Why didnt
  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 hes sorry
  Judge Skinner wasnt 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. 228-31). Why do you think
  Schlichtman acted as he did?

4
Last Class Iqbal

• FRCP had been intended to eliminate the
  requirement to plead facts (as opposed to legal
  conclusions)
• See Form 11
• For the most part, courts had interpreted rules
  in accordance with that intention
• But some resistance
• District court judges were overworked and wanted
  way to dismiss cases that they thought were
  likely to fail
• Defendants complained that it was too easy for
  plaintiffs to get to (expensive) discovery
• Iqbal reintroduces facts/conclusions distinction
  into federal practice
• 2 step test
• Exclude all conclusory allegations
• Examine rest of complaint for plausibility
• Are there factual allegations relating to each
  element?
• Very recent, so unclear how will really work

5
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

6
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
• Assignment for today
• Briefly summarize Walker v Norwest and Christian
  v Mattell
• Yeazell pp. 415-6. Qs 1-5 pp. 419-20 Qs 1, 2cd
• Problems on next two slides

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.
• 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. Bices article.

8
Would Rule 11 Sanctions Be Appropriate If

• Same as previous question, except that you do not
  cite the Supreme Court decision and Prof. Bices
  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 didnt 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

10
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

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
• 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