Two Approaches Top-Down: smj, pj bottom-Up: lawsuit from beginning to end Drafting the Rules



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Civil Procedure II

Cooper
1/12: Introduction

Two Approaches

  1. Top-Down: SMJ, PJ

  2. Bottom-Up: lawsuit from beginning to end


Drafting the Rules

  • Speed vs. Quality

    • We want lawsuits to go fast, but we want to reach the correct resolution

    • In drafting rules, constantly making decisions about how the rule should go and what the policy consequences would be

  • Could require every case to go to trial (only 3% of cases go to trial)


Folklore of LitigationUS litigation is out of control

  • Growing number of filings

  • Growing awards, especially in torts

  • “Junk lawsuits”


Court filings:

  • Are evenly divided between civil and criminal

  • Have increased over the last few decades

  • Have grown faster than population

  • Do NOT consist primarily of tort claims


US Civil Filings

  • 91 million cases a year (1 for every 3 persons; 3/5th of those lawsuits are traffic and other ordinance violations)

  • As compared to world litigation rates, US isn’t too high

    • BUT…Japan has 1 lawyer per 9000 pop; 1 judge per 80,000

    • US has 1 lawyer per 300, 1 judge per 27,000

    • Germany has 1 lawyer per 1000, 1 judge per 3500

  • Overwhelmingly, cases are resolved by settlement

How do the other 97% of cases that don’t go to trial get resolved?



  1. Default

  2. Pretrial motions

  3. Settlement


Litigation Rates

  • Increase in litigation (24% increase but trending down in recent years)

  • More lawyers

  • Three stories:

    • Litigation explosion

    • Economic growth

    • New industry: market alternative to regulation

Overwhelming number of cases take place in state courts as opposed to federal courts. Why? Federal courts have limited jurisdiction. Need a federal question or diversity jurisdiction.


Most plaintiffs who win at trial recover between less than $50,0000. Why?
Contract vs. Tort Filings

  • More contract filings than tort

  • Contract: 60% of filing but only a 1/3 of trials. Why? They settle.

    • Plaintiffs mostly win: 65% of K trials

    • Median award: $45K

      • 11% of plaintiffs recovered $1M +

      • Punitives in 6% of K cases

    • Average date from filing to resolution: 8 months

  • Tort: 40% of filings but account for most (65%) of trials

    • Plaintiff’s lawyers are paid contingency fees

    • Plaintiffs mostly lose (win 48% of cases)really about 50/50

    • Median award: $27,000

      • 7% recovered more than $1M

      • Punitives in 5% of cases

    • Average date from filing to resolution: 14 months

Explain how the statistics mean it’s probably wrong to think----



  • That streamlining jury selection would bring many cases to a swifter conclusion

    • Answer: only 3% go to trial

  • That eliminating federal diversity jurisdiction would swamp state courts

    • Answer: state courts already account for the majority of filings

  • Problem 1(e) on page 266: settle high-stakes cases (almost never go to trial)


Financing Litigation

  • Who pays the costs of lawsuits in the US?

    • Attorneys’ fees

    • Borne by society: courtroom, judge

  • Who pays for attorneys’ fees?

    • American Rule: each side bears their own costs of litigation

      • Plaintiffs can bring lawsuits without the fear of paying for defense’s legal fees

      • What does not get brought? A case with a good claim but low damages

    • English Rule: the loser pays both sides attorneys’ fees

      • Encourages strong but low-damage cases

      • Discourages high-cost litigation

    • Problem 1 on p. 293:

      • (a) Andy won’t bother bringing the lawsuit

      • (b) Irma will settle

  • How are fees calculated?

    • Hourly rate

      • Retainer fee

    • Contingency

      • Certain percentage of recovery

      • Only get paid if you win

      • Standard agreement:

        • 20% before filing

        • 25% if filed but settles before trial

        • 33% if it goes to trial

        • 50% if it goes to appeal

    • Flat rate

      • Usually used in wills & estate cases; divorce; etc.

Imagine a case: Bruce, injured in auto accident consults lawyer. What does lawyer want to know? Why will lawyer want to know about damages and liability in detail—early in the interview?



  • Who typically pays for this lawyer?

    • Possibly insurance (mainly only defense)

    • If not, he will pay by contingency fee (Why? He doesn’t have the $ to pay on an hourly basis)


Civil Litigation Financing--a hybrid system

  • Fee-for-service (with variations): prevalent in commercial litigation

  • Fee-spreading: insurance & contingent fees: prevalent in p.i. & tort litigation

  • Fee-shifting statutes: prevalent in civil rights and “public” litigation

    • Rule 11 motions

  • What about the rest: some private philanthropy, some public subsidy, some mixtures

    • Legal aid, pro bono work: what categories of cases?


What cases get left out?

  1. Damage claims for amounts too small to justify legal work involved

  2. Non-monetary relief in non-fee-shift cases

    1. Divorce, child custody

  3. Defendants

    1. Judgment proof parties won’t be sued


What cases will get brought?

  • Plaintiffs bring strong cases with high damages

  • Defendants will defend weak cases where lots of money is involved

Review:


  • Amount of litigation

    • Fear of litigation drives settlement

  • Cost of legal services

    • Affect what kind of cases are brought

    • Drives procedural decisions

1/19: Pleading

Pleading is about telling stories:

  1. 16th Century Complaint

    1. What is going on here?

      1. Plea is to the jurisdiction of Nottingham (“to the Sheriff of Nottingham”)

      2. John Smith had a horse that he took to Richard of Nottingham who put the nail in the wrong part of the foot to make horse lame. Smith wants damages.

    2. Heavy emphasis on procedure

      1. What happens next after this complaint? Sheriff summons them to the date given in the complaint (“octave of St. Michael”) to have a trial

    3. Damages: we don’t have an explanation of what makes up 100 shillings

  2. Modern Complaint

    1. Some of the story. What is going on here/why is he entitled to relief?

      1. Defendant ran over plaintiff with his car on specific date (July 1, 2008)

    2. Jurisdictional statement

    3. Specific damages: defendant gets much more info about damages (list of things that make up amount of damages)

    4. Less emphasis on procedure


Eras of Pleading:

  1. Common law: the writs and all that (1200-1850)

    • Technical forms

    • Court had to acknowledge complaint was appropriate

    • Criticisms:

      • Had to fit claim into some sort of formula (often times, what was in the complaint didn’t bear any relationship to what actually happen)

      • Almost no discovery

  2. Code Pleading: just the facts (1850-1938)

    • Shift from formulas to putting a lot of facts in the complaint

    • Requiring pleading a lot of facts isn’t fair to plaintiff because they may not know exactly what happened/all the facts

  3. Notice Pleading: just give me a hint, please? (1938– 2007???)

    • 1938: FRCP were promulgated

    • See Rule 8(a)broad discovery

    • Won’t kick out a lot of cases at this stage; easy to pass the complaint phase

    • A lot of pressure of discovery system and a lot of unmeritorious cases survive longer than they should

  4. Post-Twiqbal Era: ??? (2007- )

    • Two major Supreme Court cases (see below)

    • Seemingly moving us away from notice pleadings


Rule 8(a):

A pleading must contain:



  1. a short and plain statement of the grounds for the court’s jurisdiction…

  2. a short and plain statement of the claim showing that the pleader is entitled to relief; and

  3. a demand for the relief sought….


Problems of Pleading:

  • Incompatible goals:

    • 1. Learn as much as we can at the start of the case so we can screen out weak cases cheaply

    • 2. Eliminate technical barriers to cases that will be meritorious if they can get to discovery

  • Notice pleading does well at #2, less well at #1.

    • Only cases which it screens are those where pleader lacks legal basis for claim

    • Facts get screened later


Example of a Modern Complaint: Michael Haddle’s Story

  • What happened to Michael Haddle that caused him to want to bring a lawsuit?

    • He claims he was wrongfully fired because he was going to testify about his boss’s indictment on several counts of fraud

  • How was that story transformed to get it into federal court?

    • Brings the claim under 42 USC § 1985(2)--this was passed to protect newly freed slaves

    • But his lawyer fits it in because Haddle was injured “on account of his having so attended or testified”

  • Why did he do this?

    • Cannot bring a CL claim for wrongful discharge in GA

    • May be a reason he wants to be in federal court (usually defendants want to be in federal court)

    • This statute has a fee-shifting provision--here, if plaintiff wins, he can collect attorneys fees


Who do you write a complaint for?

  • Judge

  • Defendant


Drafting a Complaint:

  • Form 11 & 12; Model complaint on TWEN

  • Remember to include a civil action #

  • Would see girls in the car, the corporation as owner of the car (would not sue insurance companies)

  • Headings are something that lawyers put in to make complaint more clear and organized

  • Rule 8(a)(1): jurisdictional statement (needs to include: “The amount in controversy, without interest and costs, exceeds the sum or value specified…thus jurisdiction is proper under 28 USC § 1332”)

  • Statement of venue: venue is proper if substantial part of events of claim occur in said district

  • Rule 8: pleading in the alternative (reason why we can say “defendant Dolt or defendant Drip willfully or recklessly or negligently…”

  • Defense must accept or deny each statement

  • Prayer for relief: include “such other damages that may come up in trial”


1/24: Jones v. Clinton, Ch. 1: The Complaint

Case Planning:

  1. Investigation begins immediately. It does not wait for discovery to begin.

    1. What questions would you ask her? Who? What? Where? When? Develop sources of proof.

      1. Ex. Who she talked to immediately following--gives it some sort of credibility (included in the complaint)

    2. What kind of relief does she want--initially, she just wants to clear her name

  2. Develop “theory of the case”

    1. “Case theory … has been defined as the ‘basic underlying idea that explains not only the legal theory and factual background, but also ties as much of the evidence as possible into a coherent and credible whole.’ The theory of the case should be expressed in simple declarative sentences that combine the legal theory with central factual assertions…. Once a case theory is selected, it serves as the centerpiece for all strategic and tactical decisions in the case….”

    2. Plaintiff’s theory: “that Governor Clinton abused the power of public office, using it to discriminate against Jones, a woman government employee, by treating her in a way that a male employee would not have been treated and by engaging in acts that were tortious as well as discriminatory”

  3. Translation of sexual harassment claim into a constitutional claim:

    1. § 1983 claim so that a private actor can bring a claim against Governor Clinton, who acting under the color of law as an actor of the state

    2. To get a longer statute of limitations because Title VII has expired


Color of Law Claim:

  • Paragraphs 9 to 14 (facts showing that Clinton and trooper were acting under color of law…as an actor of the state)

  • Corresponds with element 1 of Count I


Strategic Decisions:

  1. Graphic details

    1. Pro: shock value, puts pressure on Clinton immediately, lends some credibility (very detailed)

    2. Con: blame the victim, may offend some people

    3. Pro/Con: plaintiff must prove all details. If defense can prove that one was inaccurate, lose credibility

  2. Jury trial demanded

    1. Pro: want to make sure that they avoid the politics of it (federal court, judge appointed by a Democrat/Clinton; jury has more sympathy and emotion than judgebigger award, plaintiff-friendly

    2. Con:

  3. Filed in federal court (could have filed in state court)

    1. Pro: broad discovery provisions in FRCP, make up of jury pool

    2. Con:

  4. Didn’t sue magazine for libel

    1. Burden of proving libel is much harder

  5. Prayer for relief—separated each count under relief to make it clear by four counts (a, b, c, d) because some were against Clinton and some were against both Clinton and Ferguson. Wanted to make it clear to the opposition.

    1. Pros = clarity, emphasis, shows makes it sound worse because there are a number of claims. Repetition hurts harder.

    2. Cons = not many, pros outweigh any miniscule cons there may be. Longer, more to read, more convoluted, may look like she is trying to find more problems than there are.

  6. Included a lot more facts than they needed to. They wrote it like a chapter in a book--written like you could put it in a magazine article rather than a more legal document. Cite paragraph 39. Offend the sensibilities of the court because of this and the length. Maybe some of it is a bit speculative. No facts as to how her rep was damages. (π 44) “Clinton knows...” (paragraph 51) and answer “denied.”

    1. Pros = more info because so public – may have been good since it became so public.

    2. Cons = offend the sensibilities of the court. Only reason allowed is because so public. Judicial system flooded with so much litigation. Clogs the system; didn’t include elements of each claim (hard to tell which elements were met)

  7. Incorporate by reference—the other facts

    1. Pro = Better because don’t repeat...

    2. Con = have to flip back so that you have to see which facts correspond with each count so that elements are met.

  8. Sexual Harassment count before due process

    1. Pro = gets attention, plays up the media aspect

    2. Con = may not be the most legally sound claim

  9. Sheer number of claims brought

    1. Impressive, make defense work harder

  10. Had to include Trooper as defendant though main actor is Clinton

    1. Could turn on Clinton, needed the conspiracy part he brings

  11. Asking for punitive damages (setting up for discovery)

    1. Opens up for discovery an inquiry if this is his first time to commit harassment (higher punitive damages if he is repeat offender)

  12. Introductory paragraph (though not required, it is a nice intro…summarizing underlying facts)


Four Counts Alleged:

--Weaknesses of damages claim



  1. Deprivation of constitutional rights

    1. Quid pro quo sexual harassment--tangible job detriment

      1. Not clear/shown in complaint

    2. Hostile work environment sexual harassment--severe conditions/impact on conditions of employment

    3. False imprisonment

  2. Conspiracy

  3. Defamation--damage to reputation

  4. Intentional infliction of emotional distress--severe distress

But what are her damages? She hasn’t had medical or psychological treatments.

1/26: Challenging the Complaint

Two major way to challenge complaint:



  1. Challenge it on the law

    1. Defense would rather have a legal defense

  2. Challenge the facts (law is right, but facts are not true)


Problem 4 (p. 346)

  1. Plaintiff alleges that defendant insulted him in public; defendant believes that the law does not permit recovery for verbal insults unaccompanied by violence. LEGAL--Rule 12(b)(6)--demurrer

  2. Plaintiff alleges that defendant struck her; defendant says he was not present at the time and place alleged. FACT--denial in answer

  3. Plaintiff alleges that defendant and plaintiff signed a contract, whose terms defendant then violated. Defendant contends that she refused to honor the agreement because the plaintiff forced her to sign at gunpoint. LEGAL--plead affirmative defense


Defense’s Response in Haddle v. Garrison

  • No legally cognizable injury--not a factual dispute…

  • Classic demurrer--“so what?”

  • Even if all this facts are taken as true

  • At will employee has no property interest, so taking away his property did not deprive him of a constitutionally protected interest under the Due Process Clause

Suppose defendants had moved to dismiss on the ground that Haddle had quit his job and had not been fired, and defendants had submitted a letter signed by Haddle admitting this in support of the motion.



  • Even if he signed letter in which Haddle admits he was at-will employee, cannot be looked at by court in Rule 12(b)(6) because judge only looks at facts alleged in plaintiff’s complaint

  • If evidence is presented, a Rule 12(b)(6) motion was presented to court with signed letter, court will either treated as Rule 56 Summary Judgment motion or will say no, can’t look at this


Supreme Court in Haddle v. Garrison

  • Didn’t not question 12(b)(6); just legal analysis of the 11th Circuit precedent

  • How the court defines that particular element of the claim; all about legal issue

  • “Fact that employment at will is not “property” for the purposes of DPC does not mean that loss of at-will employment may not injure petitioner in his person or property”

  • Interference with at-will employment is a species of intentional interference with contractual relations

  • Rules in Plaintiff’s favor. Next step? Defendant answers complaint. But will still be a really long legal battle over factual issues once remanded


Mechanics of Rule 12(b)(6)

  • Motion itself is very short. Brief is longer


Jones v. Clinton Motion to Dismiss

  • Rule 12(c)

  • Not a legal response--Clinton argues that Jones has not adequately plead all elements of their claims

    • Attack on adequacy of pleading, not on the legal claims

    • This is more factual


Differences between Haddle and Jones

  • Both are “so what?” Arguments.

  • Haddle: legal definition of particular element

  • Jones: pleading is insufficient (so what if all that were true, she didn’t suffer any injury)


1/31: Pleading

Motion to Dismiss (12(b)(6))

  • Pre-Answer

  • “So what?”

  • 12(b)(6) vs. 12(c)

    • Difference in the timing

  • Two kinds

    • Plaintiff hasn’t pled a legally cognizable claim. (Haddle)

    • Plaintiff hasn’t adequately pled one or more elements of claim. (Jones)

  • Claim-by-claim, element-by-element analysis

    • Lawyer as technician


Rule 8: General Rules of Pleading

  • “[A] short and plain statement of the claim showing that the pleader is entitled to relief.”


Before Twombly and Iqbal: Liberal Notice Pleading

  • [A] complaint should not be dismissed … unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson*

  • “[A]ll the rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”

  • “The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system.”

THEN….
Bell Atlantic v. Twombly



  • What was plaintiffs’ claim in Twombly?

    • Telecommunications companies conspired to violate anti-trust laws

  • Under the antitrust laws, what did plaintiffs have to prove?

    • Showed that there was a conspiracy (intentionally and together)

    • Parallel conduct: policies were so similar/the same

  • What did plaintiffs plead in their complaint?

    • Plaintiff: plead parallel conduct; allegation of conspiracy (mouth language of the statute)

    • Defense: no facts to back up complaint

  • What issue did the Supreme Court have to decide?

    • Whether the complaint satisfies Rule 8

  • Is this case more like Haddle or more like Jones v. Clinton? Jones

  • What was the court’s holding?

    • Facts are not sufficient to satisfy Rule 8 because “plaintiffs have not nudged their claims across the line from conceivable to plausible…”

    • Showing that there is parallel conduct is not in and of itself illegal…must show conspiracy too

      • Only alleged parallel conduct; didn’t not plead conspiracy because did not plead any facts to infer conspiracy

  • Policy considerations?

    • Prevent speculative lawsuits

    • Expensive discovery


Ashcroft v. Iqbal

  • What was the plaintiff’s claim?

    • Iqbal claims he was discriminated against because he was imprisoned after 9/11 based on his race, religion, etc.

  • What did plaintiff plead in his complaint?

    • Arrested and detained thousands of Arab Muslim men…as part of its investigation of 9/11

    • Ashcroft and Mueller each knew of, condoned, and willfully and maliciously agreed to subject respondent to harsh conditions of confinement based on national origin, religion, and/or race

  • What was the court’s holding?

    • Dismissed complaint under 12(b)(6) b/c complaint didn’t satisfy Rule 8

    • Standard in Twombly applies outside anti-trust

  • Why did this complaint fail?

    • Did not nudge the claims from conceivable to plausible

    • See below for RULES.

  • So what did court want? More evidence of Ashcroft and Mueller’s intent


Iqbal’s Complaint:

    1. “[T]he [FBI], under the direction of Mueller, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11.” (Court says that this is not plausible; alternative explanation: good law enforcement)

      • Claim that this is discriminatory is not plausible…it is good law enforcement

    2. “The policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants Ashcroft and Muller in discussions in the weeks after September 11, 2001.” (Court says that this is not plausible; alternative explanation: good law enforcement)

    3. “[Ashcroft and Mueller] knew of, condoned and willfully and maliciously agreed to subject” Iqbal to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race and/or national origin and for no legitimate penological interest.” (Court says conclusory…not part of plausibility analysis)

    4. Ashcroft was the “principal architect” of this policy and Mueller was “instrumental” in adopting and executing it. (Court says conclusory…not part of plausibility analysis, even though this is factually conclusory)


Iqbal and the Future of Pleading:

  • Complaint must state “sufficient factual matter … to ‘state a claim that is plausible on its face.’Iqbal/Twombly

Two-step analysis:

  1. Disregard legal AND factual conclusions and conclusory allegations

  2. Evaluate the factual allegations to determine whether “they plausibly suggest an entitlement to relief” (using judicial experience and common sense)

–What does plausibility mean?

    • Complaint must “nudge claims … across the line from conceivable to plausible.”

    • “More than sheer possibility” but less than “probability”

    • Not conclusory facts or mere recitation of elements on claim

  • Twombly/Iqbal did not overrule Rule 8(a), Conley v. or any other precedent, though it did “retire” Conley’s most famous sentence

  • Forms SHOULD still suffice (Rule 84)

  • Practical consequences?

    • Defendants bring more 12(b)(6) motions

    • If Plaintiff pleads more, plaintiff is pigeon-holed in those claims

    • More Rule 12 motions have been filed…whether they are granted is open for discussion

  • State of mind poses a special problem now…

    • “Defendant knew that what there were doing was wrong…”

    • If that is all you plead, court will throw this out because it is conclusory. This is info you would find in discovery (depositions, etc.)

  • Congress has introduced bills to repeal Iqbal

    • The Notice Pleading Restoration Act (S. 1504): goes back to Conley v. Gibson:

      • Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (c) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).

    • The Open Access to Courts Act (HR 4115): uses Conley language

      • A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim, which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff’s claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.

    • Rules usually do not get made this way…usually go through Federal Rules Committee, SC, and then back to Congress


Stradford v. Zurich Insurance

  • What led to this litigation? Dentist’s insurance policy lapsed but resumed payments eventually. Allegedly, while his policy was lapsed, a flood occurred, causing lots of damaged. He claimed that it happened when he resumed his coverage

  • Dentist sues to recover from a breach on his insurance policy

  • Insurance counterclaims alleging fraud alleging compensatory & punitive damages

    • Also another path to take: Zurich could have just asserted affirmative defense of fraud and therefore no obligation on K

    • Why do they choose that path? Insurance companies are usually seen in negative light by a jury, but by doing this, it puts the dentist in a bad light (best defense is a good offense)

  • If we accept Zurich’s allegations as true, did Stradford commit fraud?

    • It is enough to satisfy Rule 8 (probably, but maybe not now with Iqbal--could be conclusory), but does not satisfy Rule 9(b)

    • Rule 9(b): “a party must state with particularity the circumstances constituting fraud or mistake”--needed to allege that the flood occurred while his policy lapsed and that he lied about when it occurred

  • Why should parties have to plead fraud with specificity?

    • What effect on fraud claim? Higher burden

    • Why is it harder? Fraud opens up the door to punitive damages; put other party on notice; harder on plaintiffs to plead fraud because they may not have access to specific info at this point

Special” Claims, Special Pleadings



  • If legislature identifies “disfavored” claims, one tool is to create special pleading regimes.

    • E.g. Private Securities Litigation Reform Act of 1995: extra specificity requirements

    • E.g. some medical malpractice claims, which require that allegations pass through approval of board of physicians


2/2: Allocating Elements & Rule 11

Allocating Elements:

  • Standard car accident: plaintiff says defendant ran red light; defendant says plaintiff was drunk.

    • What are the elements at issue? DBCD

    • Who does the work to establish those elements?

  • Burdens

    • Burden of pleading--complaint/answer

    • Burden of production--evidence

    • Burden of persuasion--jury

  • If complaint alleges simply that plaintiff was driving his car, that defendant and plaintiff collided and that plaintiff was injured, what should defendant do?

    • Plaintiff has failed to satisfy burden of pleading those elements so motion to dismiss would be granted

  • What if, following amendment of the complaint, defendant files a motion to dismiss because plaintiff failed to allege that he was not contributorily negligent?

    • Doesn’t matter because the burden of pleading contributory negligence is on the defendant

  • Hypothetical Statutes:

    • (1) “Persons shall be liable for injuries to others caused by failure to take reasonable care; provided, however, that no person shall be liable if the plaintiff’s own negligence was the primary cause of injury.”

      • Prima Facie case: “failure to state reasonable care”

    • (2) “A person who is not himself negligent but who is injured by the negligence of another, has a cause of action against the insurer.”

      • Prima Facie case: “who himself is not negligent”

      • Burden of pleading contributory negligence IS on the plaintiff


Jones v. Block

  • What is the substantive claim at stake? Prisoner claimed he was injured but forced to work

  • What is the issue before the court? Who must plead exhaustion under the PLRA…the plaintiff or the defendant

    • Court is not dealing with whether he exhausted all proceedings at the prison before filing the claim in court (as required by statute)

  • Holding: prison’s obligation to plead it as an affirmative defense

  • Why? Specific pleading requirements are mandated by the Federal Rules of Civil Procedure and not as a general rule, through case-by-case determinations of the federal courts

    • Also doesn’t say that plaintiff must plead that he exhausted all remedies in statutes

    • Exhaustion in other areas of law is treated as an affirmative defense (Rule 8(c)--its not listed, but this list is non-exhaustive)

      • Act of judicial restraint; this is not up to us to change pleading requirements

  • Hard to square this with Twombly and Iqbal where court did change pleading requirements


Ethical Obligations in Pleading: Rule 11

  • What was the factual defect in Haddle’s complaint? Why didn’t Haddle just fix it?

    • Didn’t say if he was an at-will employee he was. He didn’t just amend it to say that he had a contract saying he was an at-will employee. But this contract didn’t exist

  • P. 376, Problem 1 (a): Party calls Opponent on the telephone threatening her with a lawsuit that Party knows to be groundless. Sanctionable under Rule 11? What if Lawyer makes call?

    • Not actionable because Rule 11 only applies to a “pleading, written motion, or other paper”

    • A phone call is not a Rule 11

  • Problem 1(c): Lawyer files groundless interrogatory. Sanctionable under R. 11?

    • Yes, because this is “other paper”

  • Problem 2:

    • Every document submitted must be signed (11(a)) by the attorney

    • Either lawyer or the party can be sanctioned under Rule 11, but lawyer is independently responsible

    • Lawyer would have been on firmer ground here if he had evidence (like photographs, etc.). But the plaintiff’s statement is evidence too.

    • Lawyer must perform “an investigation reasonable under the circumstances”

      • If the statute of limitations is about to run, you are on firmer ground

      • But if you aren’t up against it, you should do something more than rely on the client

  • Problem 3:

    • (a) No, certain procedural requirements in place--Rule 11 must be a separate motion

    • Safe Harbor Rule: must serve motion on the other side (not with the court) and then wait for them to correct it (they have 21 days). If they don’t correct it, can file with court

  • Problem 4:

    • (a) Affirmative obligation to correct it

    • (b) Yes, don’t have to fix it but you can’t advocate it later knowing that it is not true


2/7: Responding to the Complaint: Pre-Answer Motions

Rule 11 Recap:


Walker v. Norwest Corp.

  • What did plaintiff’s lawyer do wrong? He alleged diversity of citizenship but did not specifically allege that there was complete diversity. He said: “Plaintiff and some of the Defendants are citizens of different states.” He stated that some of the defendants were South Dakota residents (which the plaintiff was too)

  • What portion of Rule 11 was violated? Rule 11(b)(2)-(3)

    • Did not allege complete diversity

    • Also problems with factual contentions because he didn’t bother to allege exact citizenship of the defendants

  • Did the district court have to impose a sanction?

    • No, court “may” impose sanctions; discretionary

    • Court could have said that defendant’s lawyer had learned his lesson

  • Any errors in the court’s opinion?

    • Not clear that 21 day rule was followed in this case before motion was presented to court

  • Against whom was sanction awarded? Lawyer

    • Could it have been awarded against the plaintiff? No, because it is not the plaintiff himself who is responsible for allegations relating to the law of diversity of citizenship


Christian v. Mattell, Inc.

  • What is the underlying substantive dispute? Copyright infringement of Mattell with Cool Blue Barbie of Claudene doll

  • What did Hicks do wrong? Mattell’s Barbie came out in 1991. Claudene came out in 1996. He refused to inspect the doll and refused to amend/do away with his complaint

  • Why did district court sanction him?

    • Failed to appear at oral argument

    • His behavior tossing Barbie off the table

    • Failure to file memo in support of motion to dismiss

    • Yelling at his client on videotape

    • Misrepresentations during oral argument

    • Misstatement of law in summary judgment opposition brief about the circuit’s holding…

  • What portion of Rule 11 was violated? Rule 11(b)(1), (3)

  • Why did the Ninth Circuit reverse? Rule 11 is limited to written submissions to court; it does not cover discovery abuses, misstatements made during oral argument, and conduct in litigation (also not covered because occurred during discovery period)

  • Why did opposing party seek a sanction even after winning on summary judgment?

    • One argument is that they were possibly thinking attorneys fees

    • Another is that they wanted to make a point…defendant will think it “won” the Rule 11 motion even if it never collected a dime from plaintiff’s counsel

  • Now district court will fix its opinion to only include Rule 11 sanctions


Responding to the Complaint:

  1. Do nothing -- default

  2. Pre-Answer Motion

    1. Forces plaintiff to show more of their hand [12(b)(6)]

    2. Efficient and cheap way to get rid of case

    3. Tolls running for how long you have to answer

  3. Answer (see 2/9)

How long do you have to respond to a complaint? 20 days, unless defendant has waived service. If they do, they have 60 days. In addition, lawyers can usually get an extension from the other side.




  • What is a motion? Request for a court order; asking the court to do something. See Rule 7(a) &(b)

  • Rule 12(h) & (g): a trap for the unwary!


Rule 12(g)

  • (1) Multiple Rule 12 motions may be brought at once

  • (2) Generally, ALL rule 12 motions MUST be brought at once. Why? Would take years of litigation over rule 12 motions; this makes it more efficient

    • Exception: if motion is unavailable to you (ex. if defense not apparent from reading complaint)

    • “Favored defenses” receive special treatment (see 12(h))


Rule 12(h)

  • “Disfavored defenses” -- 12(b)(2)-(5) -- waived if not made in first response whether a pre-answer motion or an answer

    • Lack of PJ

    • Improper venue

    • Insufficient process

    • Insufficient service of process

  • These are all things that defendant will know immediately

  • “Favored defenses” -- 12(b)(1), (6), &(7) -- these cannot be waived

    • Lack of SMJ

    • Failure to state a claim upon which relief can be granted

    • Failure to join a party under Rule 19

  • Still may not be raised via second pre-answer motion, but they are not waived. They are preserved.

  • BUT failure to state a claim (12b6) and failure to join an indispensable party (12b7) may be raised in any pleading (incl. answer), 12(c) motion, or at trial

  • 12(b)(1) (SMJ) may be raised at any time, by either party or by the court


Other Rule 12 motions: 12(e), 12(f), & 12(c)

12(e): motion for a more definite statement



  • Disfavored by courts

12(f): motion to strike

  • Usually try to argue prejudice

  • Again, not favored by courts

12(c): motion for judgment on the pleadings

  • Plaintiff/Defendant says even if all in complaint/answer is true, I still win

  • Can come later than 12(b)(6)

Problems, p.390



  1. Problem 1

    1. 12(b)(6)

    2. 12(b)(2)

    3. Yes, 12(g)(1)

    4. No & No, 12(h)(1)(a)

    5. She cannot raise it in a pretrial motion, but she can include it in her answer, 12(c), or bring it at trial

  2. Problem 2

    1. Yes, 12(h); 12(b)(6) is a favored defense

    2. Yes, 12(h); 12(b)(1) can be raised at any time

    3. The defense is not waived; SMJ can be raised at any time, including by the court (12(h)(3))--“court must dismiss the action”


PoP Ch. 3: Pre-Answer Motions

  • What did Clinton ask the court to do? Filed a Motion to Set Briefing Service

    • Do the rules permit this?

    • What is his argument?

    • Jones’ lawyers:

      • President is not subject to

      • Dispositive motion: this would end the case so it’s a Rule 12(b)(6) motion

    • District court: can file successive rule 12 motions; discovery can proceed; but trial will be stayed

    • 8th Circuit: discovery AND trial must go on; no grant of temporary immunity

    • Supreme Court affirms the 8th Circuit: President is not immune

      • Will be burdensome on President’s lawyers but not on President himself

    • What does Clinton do next? Files rule 12(c) motion--felt like he needed respond politically and files an answer


Fanning’s notes from above:

What did Clint on ask the court to do?


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