Agenda for 5th Class

1. Agenda for 5th Class • Misc. • Name plates out • Slide handout • 1995 Exam handout • No Class Monday • No office hours Monday • Use Blackboard to turn in writing assignment • Rule 11 (continued) • Questions • A Civil Action • Answer • Amendment • Intro to Relation Back

2. Assignment for Next Class • Relation Back • Rule 15(c) • Yeazell 452-58 • Questions for everyone to think about • Summarize Moore v Baker (WG7) • SummarizeBonerbv Caron Foundation (WG1) • Yeazell p. 456ff Qs 3c (WG2), 4 (WG3) • Made 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 • Glannon391-407 (Relation Back), Examples 9-14 • 1995 Exam, Part II (the only part I am giving you now) • This is for everyone to do, and the writing assignment for WG4 • For M 9/25 • A Civil Action through p. 263 • Questions on Discovery in A Civil Action (Slide 3)

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 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. 228-31). Why do you think Schlichtman acted as he did?

4. 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

5. 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

6. Would Rule 11 Sanctions Be Appropriate If … • 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. Erman 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. • Same as previous question, except that you do not cite the Supreme Court decision and Prof. Erman’s article in your complaint. • 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.

7. 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?

8. 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)

9. 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

10. Answer Questions • Briefly summarize Zielinski v PPI • What does Zielinski mean by “defendant is estopped from denying agency” • What rule authorized the court to do this? • Yeazell pp. 439-41. Q1b, 1c, 2a, 2c, 3, 4a, 6c • Is it plausible that PPI acted in good faith without intent to deceive?

11. 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?

12. Amendment Questions • Summarize Beeck v Aquaslide • Yeazell p. 450ff Qs 1, 3b

13. 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

14. 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