§  No motion to set briefing schedule in the rules. List is non-exhaustive

• 
  §  He is the president and tries to get presidential immunity so he doesn’t have to deal with this suit until he is out of office. Takes up a lot of his time, distracts from important presidential duties—interrupts the execution of his office.
  
• 
  §  Says that presidential immunity applies to immunity from civil suit while in office. Which is why he thinks immunity makes time stand still.
  

What arguments did Jones’ lawyers make in response?

• 
  Why is winning this issue important to Jones?
  
• 
  Jones’ lawyers say he cannot get “multiple bites at the apple.” He doesn’t get to file multiple motions—has to file them altogether just as everyone else does.
  
• 
  Rule talks about dispositive motionsàtitled inoccuously, but this is a motion that will end the case, it is an argument for immunity. Therefore, the case should either be dismissed (dispositive) or should wait the rest of his presidency (another 5-6 years if he got another term). So therefore he should only get “one bite at the apple.”
  
• 
  Jones’ good faith basis for going forward à lose witneses, media attention, evidence lost, etc. becomes old case.
  
• 
  Bad faith – political motives, right before the election and they want this to be some way of muckraking. Him to have to admit something before the election. These can embarrass him and make him lose the election.
  

How did the court rule on the procedural issue?

• 
  First judge in district court allows the motion to be filed. Then denies the motion.
  
• 
  She says that the procedural issue is a 12(b)(6) motion – failure to state a claim upon which relief can be granted; but, not a precise analysis by the court here.
  
• 
  Judge says that rule 12 allows successive r. 12 motions, but doesn’t allow to bring successive motions, though you can bring it later—in answer, etc.
  
• 
  Practical ruling on procedural issue—pretty narrow issue. President doesn’t get sued very often. Her analysis is slightly off.
  
• 
  Agrees with Clinton—going to allow time to stand still.
  

How did the court rule on the immunity argument?

• 
  Immunity issueà judge wright says that president responsibilities makes her want to exercise judicial restraint. But allows discovery to go forward. She says immunity from trial, but not immunity from the legal process.
  
• 
  Eighth circuit reverses and says no immunity at all. SC agrees. No immunity.
  

• 
  §  They say discovery process not burdensome on president himself, but burdensome on the lawyers of the president.
  

Who won this round of maneuvering?

• 
  Clinton got more time,
  
• 
  P got discovery, etc.
  

• 
  Inclination is deny everything. Permissible?
  
• 
  Options:
  
  • 
    General denial only if you mean to deny everything; including jurisdiction, basic facts. Rule 8(b)(3)
    
  • 
    Specific denial in whole or in part; must make clear what are you are denying. Rule 8(b)(3)&(4)
    
    • 
      Ex. PoP Ch. 4
      
      • 
        Page 52: specific denial in whole
        
      • 
        Paragraph 47: specific denial in part
        
  • 
    Lack of knowledge or information. 8(b)(5)
    
    • 
      Paragraph 13: referring to allegations about trooper
      
  • 
    Failure to deny = admission. (8)(b)(6)
    
• 
  Clinton admits a few things: that he is a resident of Arkansas, that there was conference on such date, etc.
  
• 
  Inconsistency is permitted, just as with complaints. 8(d)(3)
  
• 
  Don’t be too cute:
  
  • 
    “Denial must fairly respond to the substance of the allegations”
    
  • 
    Rule 11 applies because it is a written document
    
  • 
    King Vision (page 397, note 5)
    
• 
  What do you do about legal paragraphs? See Paragraph 1 of Clinton answer
  
  • 
    Clinton says: “states legal conclusions as to which no response is required.”
    
    • 
      Nothing in Rule 8 says this is allowed, but this is how lawyers do generally respond to a complaint
      

• 
  Facts: Zielinski was injured on the job by a forklift. PPI owned the forklift. Sued PPI under the agency theory because one of PPI’s employees negligently operated the forklift, causing injury to Zielinski.
  
• 
  But, CCC was leasing the forklift and employed the employee accused of negligently using the forklift.
  
• 
  Complaint stated: 5. . . . [A] motor-driven vehicle known as a fork lift or chisel, owned, operated and controlled by the defendant, its agents, servants and employees, was so negligently and carelessly managed . . . that the same . . . did come into contact with the plaintiff causing him to sustain the injuries more fully hereinafter set forth.
  
• 
  Answer: general denial
  
• 
  Plaintiff understands response to be a denial of negligence
  
• 
  How should have PPI answered?
  
  • 
    Defendant:
    
    • 
      Admits ownership of the forklift;
      
    • 
      Denies operation and control of the forklift;
      
    • 
      Admits an accident on the date alleged; and
      
    • 
      Denies the remaining allegations of ¶ 5. . . .
      
• 
  Plaintiff wants to proceed with lawsuit against PPI, even though PPI is not liable under agency
  
• 
  Court allows this because if plaintiff is not allowed to proceed he will not be allowed to recover because S/L has run
  
  • 
    But says there has been no bad faith
    
• 
  Whose fault?
  
  • 
    Plaintiff should have investigated more; pleaded better
    
  • 
    Defendant could have pointed the finger at CCC, and Plaintiff then could have amended his complaint
    
• 
  Alternative complaint:
  
  • 
    5. Defendant, its agents, servants and employees, owned, operated and controlled a motor-driven vehicle known as a fork lift or chisel on the premises referred to in ¶ [x].
    
  • 
    6. The forklift was so negligently and carelessly managed…that it…came into contact with the plaintiff, causing him to sustain the injuries more fully hereinafter set forth.
    
• 
  Court does not like surprises…the point of these rules is to avoid surprise.
  

• 
  A, a jogger, is injured when B’s car swerves off the road and hits A. A sues B. How should B respond to the following allegations:
  
  • 
    “B has not had his car serviced for the past two years.” B knows this is true but knows it will be impossible for A to prove.
    
    • 
      B must admit
      
  • 
    “A was running north.” B does not doubt that this is true but did not actually see A running.
    
    • 
      Lack of information
      
  • 
    What if X, a friend of A, has told B that he was standing 20 feet away and saw A running north?
    
    • 
      Lack of information (?)
      
    • 
      A could be biased. Maybe X is directionally challenged, it was foggy out, etc.
      

• 
  Rule 8(c)(1): In responding to a pleading, a party must affirmatively state any avoidance of affirmative defense, including:
  
  • 
    Assert in answer or waive!!!
    
  • 
    If it is not listed in the rule, how do we know what constitutes an affirmative defense???
    
    • 
      Check case law; look at statutes
      
    • 
      Paradigm: even if what plaintiff says is true, I win because of this reason, excuse
      
• 
  Plaintiff does not have to respond to a pleading asserting an affirmative defense. Rule 7(a) (listing only permissible pleadings)
  
  • 
    Preserve it as an issue to be litigated
    
  • 
    Look at Rule 7(a)…complaint, answer to complaint, answer to counterclaim designated as a counterclaim
    
• 
  Burden of pleading, production and persuasion generally on party raising the affirmative defense
  
• 
  Problems 401-402 (didn’t do them in class but you should understand them)
  

Suppose you filed a complaint or an answer…

• 
  And then decided you wanted to change it:
  
  • 
    Because new information came to light suggesting a new claim or defense.
    
  • 
    Because more research suggested a different way to pitch the case.
    
• 
  Can you just present the new information without changing the pleading?
  
  • 
    NO: see Zielinski
    
  • 
    Why not? Pleadings set parameters of the case
    
• 
  Rule 15
  
  • 
    Can amend the complaint within 21 days as a matter of course (i.e. do not need permission)
    
  • 
    In all other cases, may amend with other party’s consent or with the court’s permission (court should always give leave to amend if justice requires)
    

• 
  Plaintiff was injured sliding down a waterslide. They sued Aquaslide because thought slide was manufactured by them. Defendant’s insurance companies’ investigators thought it was manufactured by Aquaslide
  
• 
  Defendant first admits that it was their slide in the answer
  
• 
  Defendant now wants to amend their answer after President inspects slide and determines it wasn’t manufactured by Aquaslide
  
• 
  Plaintiff does not want them to be able to amend because S/L has run out on tort claim
  
• 
  Trial court allows them to amend their answer and will allow a bifurcated trial to decide whether Aquaslide manufactured the slide
  
• 
  Appeals Court: Aquaslide should be allowed to amend because justice so requires that Aquaslide not be sued for something they didn’t manufacture
  
  • 
    What will a case look like if Aquaslide has to defend a negligently manufactured slide that they didn’t make? Reason court sided with defendant
    
  • 
    What about justice for the plaintiff?
    
• 
  Test: in the absence of any apparent or declared reason--such as undue delay, bad faith, or dilatory motive on part of movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to opposing party by virtue of allowance, futility of amendment, etc. -- the leave sought should be freely given
  
  • 
    Default is favored to movant absent some reason listed above
    

2/14:

1. 
   Amendments [Rule 15]
   

• 
  Jones seeks to amend complaint to dismiss claim for defamation.
  
• 
  Purported Purpose: The defamation claim would make discovery claims really expensive.
  
  • 
    Cooper says although Jones argues this to the court, this is not true.
    
• 
  Real Reason (according to Cooper): The claim would bring out Jones actual character and whether it was truly damaged.
  
  • 
    Clinton could drag out her character, which might prove damaging. By dropping the defamation claim, Clinton won't be able to attack her character in the same way.
    
• 
  Claims added: Jones wants to clarify her E/P claims concerning disparate treatment as a state employee.
  
  • 
    Wants to argue: Women who succumbed to Clinton's advances were promoted/got better jobs; while those (like Jones) who did not succumb, were not.
    
  • 
    So, there would be depositions of other women who'd had relationships with Clinton.
    
• 
  New Theory of the Case: Clinton repeatedly violated the rights of women by abusing his authority.
  
  • 
    Jones argues she should be allowed to amend her complaint b/c the court set a schedule with deadlines and the date had not passed. Also, argues that the amendments don't radically change the case.
    
  • 
    Clinton says the 3rd party favoritism doctrine does not set forth a cause of action; therefore, it would be futile to allow this amendment.
    
    • 
      Cooper: Clinton's best argument is “futility”
      
• 
  Court allows Jones to amend.
  
  • 
    But, this does not mean that the judge thinks that 3rd party favoritism is enough to establish a constitutional claim.
    
  • 
    The court says that allowing amendment does not provide for a new cause of action.
    
  • 
    Battle: Jones will now be arguing to bring in Clinton's relationship with other women, and he will be arguing that it's not relevant.
    
    • 
      The amendment gives Jones a step forward with her claim; she can potentially expand the scope of discovery into these areas.
      
• 
  The fact that the amendments are very early in the case (there's been no discovery at this point) is part of why the court is more inclined to grant the amendment.

  
• 
  Rule 15(c): In original complaint, Ferguson was only a co-defendant as to certain counts.
  
  • 
    Jones sought to amend so that Ferguson wold be a co-defendant to more of the original counts that in the complaint were only against Clinton.
    
    • 
      Argument for Ferguson against amendment: “undue delay” - the case has been going on for a long time; Jones waited too long.
      
    • 
      Jones will argue that discovery has not begun, and the deadline set by the court in the schedule has not passed. Also, amendments “relate back” to original complaint [15(c)]. There was no prejudice b/c Ferguson was put on notice [15(a)].
      
      • 
        Cooper says Jones has the better argument.
        
  • 
    The intentional infliction of emotional distress count that Jones wants to bring against Ferguson in amendment has a better a for Ferguson than the other counts.
    
    • 
      There could be some argument that this claim is different and doesn't relate back.
      

• 
  Amendment will matter in 2 situations (i.e. be an issue):
  
  • 
    Statute of limitations and “relation back”
    
  • 
    “Prejudice”
    
• 
  Timing: You can amend once as a matter of course; court and other side cannot say NO.
  
  • 
    One “free shot.”
    
  • 
    Must be within 21 days of filing OR
    
  • 
    within 21 days of receiving an answer or 12(b), (e), or (f) motion.
    
• 
  Otherwise, you can only amend by consent (of other party) OR by leave of court.
  
  • 
    Supreme Court: The court should freely give leave to amend (when justice so requires).
    
  • 
    UNLESS there are certain circumstances: undue delay, bad faith or dilatory motive, undue prejudice, futility.
    
• 
  Rule 15(c): standard = whether the amendment contains a claim or defense that arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original pleading.
  
  • 
    The rule encourages broad pleading in the original claim, though this is not purpose of the rule. The broader the claim is to start with (in the complaint), the easier is to argue that new claim or defense (in the amendment) “relates back.”
    
  • 
    Theory of “relation back”: Idea that if something relates back to the original case, that new claim/defense is part of the same case. Not dredging up something old that was never a part of the case. 

    
• 
  Moore
  
  • 
    Original claim: informed consent was insufficient; doctor did not provide adequate information to patient when being counseled on the surgery.
    
  • 
    New claim: negligence during surgery.
    
  • 
    Court denies the amendment b/c the original complain did not contain anything that would have given the doctor notice of a negligence claim.
    
    • 
      First claim dealt with conversations before the surgery.
      
    • 
      Second claim dealt with performance during the surgery.
      
  • 
    If the Moore complaint had been pled more generally (was more broad), might have had a better chance to amend.
    
  • 
    
    
• 
  Bonerb
  
  • 
    P says he was injured while playing basketball and claims negligent maintenance of basketball court.
    
    • 
      New Claim: different negligence claim.
      
  • 
    Court allows amendment because second claim is similar enough to first claim to put D on notice of second complaint.
    
    • 
      Cooper says this seems like the same situation as in Moore; yet, the court here allowed it. Why?
      
      • 
        This amendment filing was earlier in the case than in Moore.
        
      • 
        In Bonerb, there had not been a lot of discovery.
        
      • 
        The difference in the timing b/w these cases is a key reason why they were decided differently.
        
      • 
        Another difference is that the allegations in Bonerb were similar (b/w the original complaint and the amendment). They were clearly distinct in Moore. 

Joinder
        
• 
  Broad discovery
  
• 
  Broad joinder
  
  • 
    Goal – decide the whole controversy in one lawsuit.
    
• 
  Rule 18
  
  • 
    A party may bring any claim, counterclaim, cross-claim, or 3rd party claim that you have against any party in the lawsuit.
    
    • 
      Counterclaim – brought by D against P
      
    • 
      Cross-claim – brought by one D against another D
      
    • 
      3rd – P sues D; D brings in a 3rd party to the lawsuit.
      
  • 
    Which joinder rule applies?
    
    • 
      Also, there needs to be PJ over joined party.
      
      • 
        (On exam, don't have to do minimum contacts analysis.)
        
    • 
      And there needs to be SMJ.
      
      • 
        This will be an issue that needs to be analyzed on the exam.
        
  • 
    So, although, you “may” under Rule 18 brings claims; PJ and SMJ could prohibit joinder of certain parties.
    
• 
  Problems (p. 739)
  
  • 
    A v. B (federal claim). A wants to add a state law claim, which is permitted under Rule 18. PJ exists. What about SMJ? Look to §1367 (a) federal cause of action. Issue: Is this the same case or controversy? Yes. So, there is SMJ.
    

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend the party's pleading once as a matter of course:

(A) 21 days after serving it, or

(B) If the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

• 
  Pg. 402 Problem 1
  
  • 
    a) A party may amend within the first 21 days as a matter of course; i.e. P doesn’t need permission to amend the complaint
    
  • 
    b) If you not under 15(a)(1), then you must have permission from the opposing party or with the court’s leave. The court should freely give leave to amend when justice so requires.
    

• 
  General proposition: amendment will matter in two situations:
  

• 
  When some legally relevant time period has expired.
  
  • 
    Statute of limitations and “relation back”
    
• 
  When the other side argues that, although no explicit time period has expired, it has relied on your original statement of the case.
  
  • 
    “Prejudice”
    

• 
  Mechanics: Motion plus proposed amendment
  

• 
  Timing:
  

• 
  Once as a matter of course within 21 days of filing OR within 21 days of receiving an answer or 12(b), (e) or (f) motion. 15(a)(1)
  
  • 
    Only get one free shot. So if you file an amendment within 21 days of filing, then you can’t freely amend the complaint if the defense later files a 12(b) or some other motion.
    
• 
  Otherwise by consent or leave of court. 15(a)(2)
  

• 
  “The court should freely give leave when justice so requires.” 15(a)(2).
  

• 
  Absent “undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party by virtue of allowance of the amdendment, futility of amendment, etc…” leave should be freely given. Beeck.
  
• 
  Tension between flexibility and finality
  
• 
  More careful pleading by either or both parties in Beeck would have prevented this mess.
  

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back, or

• 
  Why do we have SOL?
  
  • 
    Finality
    
  • 
    The defendant was made aware of the claim in reasonable amount of time
    
• 
  What’s the theory of relation back?
  
  • 
    Why would we allow plaintiffs to state one claim, wait until the statute of limitations had run, and then change their claims?
    
  • 
    Isn’t that unfair to the defendant?
    
  • 
    What justifies such a rule?
    

• 
  Moore’s original claim was informed consent
  
• 
  She sought to amend the complaint to say that that the doctor was also negligent
  
• 
  Why denied?
  
  • 
    The first claim was that the doctor failed to inform her that she had alternatives before the surgery
    
  • 
    The SOL for negligence had expired. The second negligence claim dealt with the doctor doing something wrong in the operating room.
    
• 
  Holding
  
  • 
    The court said that the negligence claim was not related back to the informed consent claim because it did not give the doctor notice that he would be sued for something that happened during the actual surgery.
    

• 
  Rule 18 permits you to join any claim that you have against an opposing party
  
• 
  What is a …
  
  • 
    Claim?
    
  • 
    Counterclaim?
    
    • 
      A defendant sues the P
      
  • 
    Cross-claim?
    
    • 
      A defendant sues a fellow defendant
      
  • 
    Third-Party Claim?
    
    • 
      A defendant brings a claim against a new party
      
• 
  Permissive not mandatory
  

• 
  Which joinder rule applies?
  
  • 
    Candidates: Rules 13,14,18,19,20,21,22,23,34
    
• 
  Does rule allow joinder of a claim or party?
  
• 
  If so--Is there personal jurisdiction over joined party?
  
  • 
    There needs to be PJ
    
• 
  If so– is there Federal subject matter jurisdiction over joined party or added claim?
  
  • 
    You may not be able to bring all claims because you don’t have federal SMJ
    

• 
  R. 18 permits it
  
• 
  There is PJ
  
• 
  § 1367(a) permits it because it arises out of the same case or controversy.
  

Can you amend?

–Once as a matter of course within 21 days of serving it or within 21 days of receiving answer or Rule 12 motion. 15(a)(1).

–Otherwise, need consent or leave of court. Leave to be “freely given when justice so requires.” 15(a)(2)

•Vague!

•Presumption in favor of amendment.

•Timing matters (i.e. if its early in discovery, they will generally allow because there is no harm yet)

• 
  Must get over 15(a) first before you get to 15(c)
  

•Does the other side have a fair notice that this issue could come up (i.e. there has been some discovery on the issue)? Will they be taken by surprise?

•Timing matters
Joinder & Strategy: The Three-Ring Version

• 
  Π: Will I win? Against whom? Will they win more against me than I do against them? Should I settle with one to get funds to litigate against the other? Which?
  
• 
  Δ: Will I win? Will I win more against him than he does against me? Should I settle so I’m not left holding the bag? Can I do a deal with the other Δ? Can I do deal with the Π so other Δ is left holding the bag?
  

• 
  Step 1: Does the applicable Rule allow joinder of this claim (or the addition of this party) under these circumstances?
  
  • 
    If not—stop right there
    
  • 
    [“May” might not really mean “may.”]
    
    • 
      Collateral estoppel: if you have any claims that arise out of single transaction, he has to bring all claims the once or otherwise lose them…so not really “may”
      
• 
  Step 2: If so—are there jurisdictional issues?
  
  • 
    Federal jurisdiction over additional claim or party
    
    • 
      Original
      
    • 
      Supplemental
      
• 
  [And, in real life, don’t forget personal jurisdiction over an additional party and venue!]