§1 – Pleadings__________________________________________________________ 3
I. Complaints_______________________________________________________ 3
II. Answers_________________________________________________________ 3
III. Band’s Refuse____________________________________________________ 4
§1.1 – Pleadings – The Complaint (Specificity)________________________________ 6
I. Conley v. Gibson (1957)______________________________________________ 6
II. U.S. v. Board of Harbor Commissioners (1977)___________________________ 7
III. Crawford-El v. Britton (1998)_________________________________________ 7
§1.2 – Pleadings – Inconsistent Allegations__________________________________ 8
I. Multiple Claims___________________________________________________ 8
II. McCormick v. Kopmann (1959) – Inconsistent Allegations_________________ 9
§1.3 – Pleadings – Rule 11_______________________________________________ 10
I. The Heart of Rule 11 is Representations to the Court____________________ 10
II. Rule 11 Factual Allegation Analysis (See Appendix A)___________________ 10
III. Rule 11 – Factual Denial Analysis (See Appendix A)_____________________ 10
IV. Legal Theories (See Appendix B)____________________________________ 11
V. General Rule 11 Notes and Comments________________________________ 11
VI. Rule 11 – What to do if Opposing Counsel Violates______________________ 12
VII. Mitchell v. Archibald & Kendall___________________________________ 12
§2 – Pleadings – Heightened Pleading Requirements__________________________ 15
I. Ross v. A.H.Robbins (Heightened Pleadings)____________________________ 15
II. Leatherman v. Tarrant County_______________________________________ 16
III. More Background Law Issues re: pleading with particularity under §1983___ 17
§3 – The Packer Complaint_______________________________________________ 17
§4 – Answering the Complaint____________________________________________ 21
I. David v. Crompton & Knowles Corp. (1973)_____________________________ 21
§5 – The Diligent Answer________________________________________________ 22
§6 – Counterclaims______________________________________________________ 24
I. Wigglesworth v. Teamsters (1975)_____________________________________ 24
II. Why might D not want to file its claim as a counterclaim?__________________ 25
III. Why might ¶ want to force D to file claim as a counterclaim?_______________ 26
IV. Why might an impartial court care?___________________________________ 26
V. Current Rule_____________________________________________________ 26
§7 – Pleadings – Amendments____________________________________________ 26
I. Permissive Amendment Standards___________________________________ 26
II. Prejudice Under Rule 15 (When its going to help you and hurt the other side)_ 27
III. Relating Back____________________________________________________ 27
IV. Standards for Granting Leave to Amend_______________________________ 27
V. What is the requirement for permitting amendment to relate back?_________ 28
VI. Swartz v. Gold Dust Casino, Inc. (1981)________________________________ -28
§8 – Joinder of Claims___________________________________________________ 30
I. Rule 18. Joinder of Claims and Remedies_____________________________ 30
§9.1 – Permissive Joinder of Parties________________________________________ 31
I. What is the standard for Permissive Joinder under Rule 20?______________ 31
II. Kedra Case______________________________________________________ 31
§9.2 – Joinder & Third Party Practice______________________________________ 32
I. The Case of the Leaky Roof________________________________________ 32
II. 3rd Party Complaints (Rule 14)_______________________________________ 33
§9.3 – Joinder & Rule 19 Necessary Parties_________________________________ 33
I. Basic Structure of Rule 19__________________________________________ 34
II. Rule 19(a)(1)_____________________________________________________ 34
III. 19(a)(2)(i)_______________________________________________________ 35
IV. 19(a)(2)(ii)_______________________________________________________ 36
V. Rule 19(b)_______________________________________________________ 36
VI. Examples_______________________________________________________ 37
§10 – Interpleader_______________________________________________________ 38
V. Insurance Company Example________________________________________ 38
VI. Crucial division is between stakeholder and claimants____________________ 38
VIII. Statutory and Rule Interpleader____________________________________ 39
§11 – First Amended Answer for Dan Diligent_______________________________ 39
§12 – Discovery_________________________________________________________ 40
II. Three Sources of Discovery_________________________________________ 41
III. How do you use discovery in trial?___________________________________ 41
§12.1 – Discovery – The Packer Case_______________________________________ 41
I. Request for Production of Documents (to Denton’s attorney)______________ 41
II. Interrogatory (to Denton’s attorney)__________________________________ 41
III. Deposition of Denton______________________________________________ 42
IV. Inspection of the House____________________________________________ 42
V. Denton’s Response Issues_________________________________________ 42
§12.2 – Discovery – Managing Scope & Burden______________________________ 42
I. Davis v. Ross____________________________________________________ 42
II. Kozlowski v. Sears, Roebuck & Co. (1976)______________________________ 45
III. Purposes of Discover______________________________________________ 46
§12.3 – Discovery – Work Product, Experts & Privileges_______________________ 46
I. Two Sources for work-product protection______________________________ 47
II. 26 (b) (3) Standards_______________________________________________ 47
III. Hickman Work Product____________________________________________ 48
§12.4 – Discovery – Rule 37 Sanctions – Lawyer’s Signatures & Discovery________ 48
I. Immediate vs. Deferred____________________________________________ 48
II. Kinds of Sanctions________________________________________________ 49
§13 – Summary Judgement_______________________________________________ 49
I. Introduction to Summary Judgement__________________________________ 49
II. Dispositive Motions/Motion for Judgement as a Matter of Law/Motion for a Directed Verdict. 49
III. Celotex v. Catrett (1986)____________________________________________ 50
V. Arnstein v. Porter (Burden of Production)______________________________ 50
VI. Dyer v. MacDougall (1983)__________________________________________ 51
VIII. Galloway______________________________________________________ 52
§14 – Phases of a Trial__________________________________________________ 52
a§1 – Pleadings
I. Complaints
A. Note: In almost every lawsuit, the first step is for one attorney to contact the other and attempt to negotiate a settlement. The goal is the result, not the lawsuit itself.
B. Why must a complaint be filed?
1. Tells D what they’re being sued about
a. What does ¶ want? (The legal relief sought).
b. Why? (What legal facts are alleged by ¶)?
2. Notifies the court
a. The court opens a file
b. The case is placed on a trial docket
3. Defines the scope of relevant evidence by defining what the dispute is about
II. Answers
C. Provide the framework of the defense
D. Affirmative Defense (Yes, but . . .)
E. Denial (No, you’re wrong)
F. So What? (No legal claim exists based upon the facts you allege.)
III. Band’s Refuse
A. Facts
4. Borough created a garbage collection monopoly
5. Band’s has a contract to collect for a GE plant
6. Band’s applies for and is refused a garbage collection permit
7. Band’s sues over the permit denial
B. Intervention
1. Capasso’s (the garbage monopolist) gets involved because their interests are not adequately protected by the city.
a. The city probably doesn’t care who picks up the trash, as long as there’s only one company doing it
b. Capasso’s has a very valuable contract on the line in this litigation
2. Capasso makes a Motion to Intervene under Rule 24(a) Rule 24. Intervention (a) Intervention of Right. – Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
3. Capasso files
a. Answer (Rule 7a) – Rule 7. Pleadings Allowed; Form of Motions (a) Pleadings. “There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.”
b. Counterclaim (against Band’s Refuse) (Rule 13) Rule 13. Counterclaim and Cross-Claim – (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13. (b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
c. Crossclaim (Rule 13) (g) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
i. Against the city
ii. To prevent the issuance of any other permits
C. Grand Jury Investigation
1. Is going on contemporaneous with this civil case
2. Uncovers some evidence of possible corruption in the awarding of the garbage contract
3. The question of fraud in the garbage contract comes up in the Grand Jury
D. Band’s amends their complaint to allege fraud
Amendment (Rule 15) Rule 15. Amended and Supplemental Pleadings – (a) Amendments. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.
(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
1. Why didn’t you file this in the first place?
2. How much time is there before we’re scheduled to go to trial?
§1.1 – Pleadings – The Complaint (Specificity)
I. Conley v. Gibson (1957)
A. Facts: Black members of the Brotherhood of Railway and Steamship Clerks brought suit under the Railway Labor Act to compel the union to represent them without racial discrimination.
B. Procedural Posture: The trial court granted the ∆’s motion to dismiss on the ground that the complaint was defective for failure to state a claim upon which relief could be granted.
C. Issue: Whether a claim for relief is insufficient if it appears that the plaintiff can prove facts in support of the claim which would entitle him to relief, but does not include such facts in the claim.
D. Holding: No. “A complaint should not be dismissed for failure to state a claim 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.”
E. Argument/Counter-Argument
1. The claim stated allegations that the union had not represented the workers without racial discrimination. More specific facts were not required by the Rules. Thus, the lower court’s dismissal was improper.
2. The claim lacked specific facts sufficient to state a claim which entitled the plaintiff to relief. Thus, the dismissal was proper.
F. Majority Reasoning
1. The Federal Rules do not require the claimant to detail the facts upon which he bases his claim.
2. They only require a “short and plain statement of the claim” that will give fair notice to the D of the claim and the grounds on which it rests.
3. The Forms in the rules are an example. Any further facts needed to more narrowly define the scope of the claim and the possible defenses can be obtained through pretrial discovery.
4. Rule 8(f) states that all pleadings shall be “construed as to do substantial justice.” Thus, their purpose is to facilitate a proper decision on the merits, not to become a decisive trap for the less skilled counsel.
II. U.S. v. Board of Harbor Commissioners (1977)
A. Nature of the Case – Rule 12(e) hearing on a motion for a more definite statement.(view in light most favorable to the plaintiff)
Rule 12(e) Motion For More Definite Statement.
If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the o
tigation has already been done.
3. If the information is easy to find out, you probably can’t use NSI
C. Note: It’s better not to write a denial if your client is going to admit on the stand J
IV. Legal Theories (See Appendix B)
A. Is there existing support for your position? (If so, cite the case)
B. Can you make a non-frivolous argument for the “extension, modification, or reversal of existing law?”
1. Non-frivolity is in the eyes of the judge (which is why Rule 11 scared social activist lawyers)
2. Examples of frivolous arguments
a. The Supreme Court has very recently ruled to the contrary
b. Statute has just been adjudicated as valid on the same basis upon which you want to challenge it.
3. Keys: Recent, Clear, Unlikely to Change
C. You are not required to point out that you are arguing for change, modification, or reversal, but you probably should anyway.
V. General Rule 11 Notes and Comments
A. “Presents” also includes “Maintains” a position
1. This deals with a situation where the allegation, denial, or argument had support or was nonfrivolous, but the facts or the law change.
2. The Rule is violated if you continue to assert an impermissible position, but you don’t have to amend (you just have to stop bringing it up).
B. What exactly is an “improper purpose” is still rather unclear and evolving
C. Sanctions represent the biggest change from the pre-1993 Rules
1. Now the court has discretion as to whether to actually apply sanctions (“will” changed to “may”). This lets the court allow a minimal violation to slide
2. The purpose of sanctions is to be a deterrent, not to serve as compensation for your opponent. Therefore, the money from any fines goes to the court.
VI. Rule 11 – What to do if Opposing Counsel Violates
A. Pre-1993 amendments – according to the rules as soon as the rule was violated you could file a Rule 11 motion. Local rules imposed “Golden Rules” informing other side that you intended to file a motion unless they “fixed” it, and could only file after they refused to “reform”.
B. Justice Stevens wrote “Safe Harbor” provision. Safe Harbor requirements:
1. Write a motion that specifically describes the conduct that allegedly violates Rule 11. (bill the client)
2. Serve the motion on Opp. Counsel (bill the client)
3. Wait 21 days and see if Opp. Counsel as corrected.
a. No = file motion with the court
b. Yes = pitch it in the trash
4. Why bill the client? He’s gonna be unhappy if the motion never gets filed. Suggestion: Call Opposing Counsel first.
a. You might find out that there is actual foundation or else get him to withdraw it without having to write the motion. (bill the client).
b. You’ve gone the extra mile, so court is more likely to award the attorney’s fees for doing so.
VII. Mitchell v. Archibald & Kendall
A. Nature of the Case: U.S. Court of Appeals is hearing appeal of dismissal order by District Court.
B. Background Facts
1. A & K’s receiving dock could only accommodate one truck at a time.
2. A & K employees ordered Mitchell to park his truck on the street opposite A & K’s warehouse to wait for unloading on November 12, 1973.
3. It was common for A & K to use the street as “an extension of the receiving dock area”.
4. Mitchell was robbed and shot by two unknown persons while waiting in his truck on the street .
5. Various criminal acts known to A & K had occurred on that street before.
C. Complaint alleges:
1. A & K has a duty to exercise ordinary care to maintain its premises and the adjacent areas in a reasonably safe condition, in order to protect invitees from criminal conduct of third parties of which A & K was aware
2. A & K has duty to provide safe ingress & egress
3. A & K has duty to give adequate and timely notice and warning of latent or concealed perils which were known to A & K but not to Mitchell.
4. A & K has duty toward Mitchell to keep premises and the immediate adjacent area reasonably well-policed and to exercise reasonable care to see that its invitees were protected from injury from criminal acts of third parties and to take reasonable steps to prevent injury to invitees.
D. Procedural Facts
1. District court dismissed under Rule 12(b)(6), Fed.R.Civ.P.
2. ¶ asserts that the issues decided by the district court’s opinion involved a question of material fact (did the attack occur on A & K premises), and therefore should have been submitted to the jury.
3. ¶ had the right to amend their complaint in order to avoid dismissal, but in appealing ¶ chose to stand on their original complaint and relinquished the legal theory they assert.
E. Action Challenged: Dismissal of ¶’s complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
F. Background Issue: Whether the owner/occupier of land has a duty of reasonably guarding an invitee against criminal attacks that t6ake place beyond the boundaries of his premises and on the public thoroughfare.
G. Procedural Issue: Whether dismissal under Rule 12(b)(6), Fed.R.Civ.P. was proper.
H. Procedural Holding: Where the pleadings raise a contested issue of material fact, a Rule 12(b)(6) motion must be denied. However, the court is required to accept only well-pleaded facts as true.
I. Reasoning
1. ¶’s allegations were drafted in such a way so as to preclude their own legal theory.
2. ¶ was careful to distinguish between A & K “premises” and the “adjacent area on Fulton Street”.
3. As such, they precluded the jury from finding that the street was part of A & K’s premises.
4. Even if ¶ had not drafted their argument so poorly, the surrounding public areas are clearly beyond the legal definition of “premises”. Existence of “duty” is a question of law properly determined by the court.
J. Legal Theory as pleaded: D had legal duty to provide
1. Safe premises
2. Safe adjacent areas
3. Safe ingress and egress on & beyond premises
4. Enough employees to provide safety on & beyond premises
5. Notice of danger
6. Police protection
K. D’s 12(b)(6) Theory: D had no legal duty unless
1. P on premises
2. P on ingress or egress
3. NO DUTY ON THE PUBLIC ROAD
L. P’s Response
1. “Premises” is a fact issue
2. Jury might find that premises includes places D parked
