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Complaint -Minimum Conley • 8a2/ • Just “short, plain statement.” Allow complaint to survive
pleading 12b6 unless “no set of facts” can state a claim
standard
(Notice
• 8f • Purpose is to give notice to other party of claim & grounds.
Interpret complaint liberally to “do substantial justice”—give
pleading)
benefit of doubt to P
• Discovery allows for more specification, substantiation later
• Twombly threatens…
Complaint -Pleading too American • 8a2/ • Don’t plead too much—stick with literal Rule 8/Conley
much Nurses 12b6 • Can plead yourself out of court if stating facts/theories that
• Form don’t state a claim (subjecting you to 12b6)
9 • Test for sufficiency: Can a legal mind infer a theory based on
alleged facts?
• Allowance of just bare pleadings prudent in discrimination
claims b/c evidence of discrim often in hands of D—need
discovery
• (Twombly also)
Complaint -Heightened Leatherm • 8a2/ • No heightened pleading/factual specificity required for
pleading an 12b6 respondeat superior 1983 cases. Don’t have to plead more
standard in • 9b than single instance of misconduct
1983 cases
under
• Rule 8/Conley apply unless stating a 9b claim that requires
greater specificity. Respondeat superior not on 9b list, so
respondeat
superior expressio uniusn/a
theory?
Complaint -Heightened Schultea • 8a2/ • Plaintiff does have to plead more than conclusions and can be
pleading 12b6 required to engage the affirmative defense of qualified
standard in • 9b immunity at the pleading stage.
affirmative • Getting around SCOTUS’s 9b/Leatherman argument
• 8c
defense cases affirming need for heightened standard, but invoking Rule 7
• 7a
(here, aff. def. Reply
= qualified
• Failure to initially plead with heightened standard is not fatal
immunity)?
to complaint (won’t be thrown out on 12b6), but court may
order a 7a reply to a QI affirmative defense.
-Reply
• Reply would have to give more evidence to chart out a legal
course, engaging allegations.
• More specific answers require more specific replies
• At court’s discretion, limited discovery—that pertinent to the
affirmative defense—may be allowed for purposes of the
reply.
• Compromise between interest in permitting liberal pleading &
interest in weeding out bad claims
Complaint -Heightened Securities • 9b • Tension: Legitimate anti-fraud interest vs. policy recognition
pleading fraud • 8a2/ that companies will settle strike suits if they pass motion to
standard under discussion 12b6 dismiss
9b (discussion (in book) • Heightened standard relaxed if defendant is only source of
of example info – may allow limited discovery before end of pleading
situation: • Some courts require pleading facts that give rise to strong
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judgment has reassert) Who had better access to evidence? (if defendant,
been passed then need to plead) Policy favoring one side?
for damages • 8c requires pleading affirmative defenses in answer or
above the amendment. Even OK at trial if not resulting in unfairness b/c
limit… plaintiffs can still respond/change strategy.
required to • Here, citing Act to limit damages is an “avoidance” as in 8c.
raise as Referring to Black’s definition, it shows why cause should not
affirmative have its ordinary legal effect. Had plaintiffs known, they
defense at would have tried case differently, not under ordinary tort
pleading? malpractice—would have emphasized future expenses relating
to injury (incl. psychological care). Plaintiffs ambushed, then,
to some extent.
• So, from 8c, if not pleaded timely, waived
• (No expressio unius in 8c b/c wording is “including” and
“other things”)
Amend- Standard for Barcume • 15c • Rule 15c: If amendment arises out of same conduct,
ment an amended transaction or occurrence, it relates back. Allows for
pleading correcting technical deficiencies; expanding/modifying as
“relating back” things found out/changed during procedure. Efficient. Greater
vis-à-vis particularity and detail of original relates back
statute of
limitations
• If amendment is based in substantially different facts
(conduct, etc.) it does not relat back. Prevents other party from
getting blindsided. If new claim rests on different facts, does
not relate back
• If new legal theory, it depends…
• P’s reason that in discovery, defendant should have found out
that harassment, hostile environment were there—that they
knew, so no prejudice in discovery. But not just about
knowledge; about legal preparation and anticipation for one’s
defense. Can’t dictate what defendant should have known.
• Court says “so what?”—in line with doctrine of repose. Why
do we have a statute of limitations? Facts get “stale” Repose
—we don’t want people feeling guilty for the rest of their
lives. Wrongness fades if accepted for a long period of time
(exception of murder).
• Agree with principle and correct application of law here.
Practically, however, was some injustice done? Was it just a
technicality that prohibited valid claims from being heard?
• Incentive to plead more broadly so amendments will relate
back…but then have to worry about American
Nurses/pleading self out of court
Amend- Post-judgment Nelson • 15 • Nelson’s right to due process—to contest charges brought
ment amendment of • 59e against him—was violated by the post-judgment amendment.
pleading • Rule 15’s req’s for amended and supplemental pleadings were
violating a not met. Was never served with complaint/amendment in the
third party’s charge against him in his personal capacity. Not given his 10
due process of days to state his defenses against personal liability. Judgment
Rule 15 by not entered against new party without allowing him to defend
allowing third himself. Violation of fundamental tenet of our legal system.
party to
• Couldn’t argue his case on appeal because appeals court
respond to
doesn’t allow defendant opportunity to defend issue of
charges
liability (appeals court doesn’t hear facts)—just reviewing
against him
whether amendment was property.
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-Discovery -Failure to Chalick • 26a • Defendants violated 26a, so sanction necessary. D not allowed
voluntarily • 15c to invoke Stat of Lim, since that’s meant to protect against
-Amend- disclose • 37c1 unfair notice, and here not unfair because improper notice was
ment • 16 caused by D’s own misleading
-Relate back
claims;
• D’s argue no notice and no reason to know (Rule 15). 15c: To
relate back, amendment must; arise out of same operation—
equitable
satisfied; not prejudiced—satisfied (really?); and should have
estoppel from
known he was concerned and not named only due to mistake
raising stat. of
—satisfied, since should have been aware of lawsuit
lim. Defense
• 26a1a: Defendants obligated to provide not just names of
-Receiving knowledgeable parties but also basis of his knowledge (and
notice as not to contact info). 1990 amend. make 26a disclosure voluntary
be prejudiced • 37c1: Since voluntary, threat of gamesmanship, so if 26a
by amendment violated, sanctions are mandatory unless justification/no harm
• No justification for not disclosing. Harm done to P. Also hurts
court: impedes efficiency; delays decision of case on merits
Discovery -Discover- Sullivan • 26b1 • Rule 26: though inadmissible itself, possibly helpful to
ability of info & • 26g3 claim/case because establishes background environment (vis-
(through Cromwell • 37a3 à-vis discrimination), may identify persons of interest to
interrog.) not depose, may induce settlement through hassle/embarrassment.
directly • Allowing other evidence to round out case, get leads
relevant but • Discovery not just about evidence, also about leverage.
perhaps
Inducing settlement. Embarrassment, time, resources, etc.
leading to
admissible • Court may or may not sanction for resisting interrogatories
evidence
-Discovery -Deciding Rozier • 26b1 • Interrog & court order not limited to specific model. If in
relevance of • 60b3 doubt of relevance, Ford should have sought ruling by court
-New Trial/ documents
Relief from
• Given relevance, failure to produce hurt P’s case. Couldn’t
show pre-production negligence; but report about later,
Faulty -Producing
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Judgment documents in similar model could have shown that Ford aware of defects
complex and yet didn’t inform
organization • 26b1: inadmissible evidence still discoverable if reasonably
calculated to lead to discovery of admissible evidence
• Liberal discovery rules so case about merits, not bluffing.
Emphasizing “fairness” of discovery process
• Ford prob didn’t make conscious decision not to produce
document—more due to organizational failure with big parties
Discovery Work product Hickman • (26b3 • Atty-client priv = narrowly interpreted. Not protected in these
protection: ) circumstances, just between atty & client—not 3rd party
Extent to interactions & other materials. A broad interpretation could
which party give corporate defendants the advantage of a large cloak of
can discover privilege…though can’t argue it one-way
other counsel’s • Here, not an ordinary request for relevant, non-priv info—
taken Asking for reproduction of things available on record or
statements otherwise attainable by requestor. No reason to suspect
from witnesses dishonesty from public testimony.
& similar info
in its research • No necessity shown—not showing why it wouldn’t cause
hardship/injustice. Just being material & non-private is not
enough. Not part of Rule 26* but prohibited by Rule 26 but
prohibited by underlying policy of court/adversary system:
Can’t, without justification, just obtain adversary’s materials
& interpretations! (*ANACHRONISTIC: SEE MODERN
26B3) Forcing an adversary to recount witness interviews
would lead to inaccuracy, bias, fear of lowered prof standards
• Not all adversary’s materials protected from discovery—dep.
on circumstances (how necessary, difficult to procure)
Discovery Work product Adlman • 26b3 • Now the majority view: Broad—protects nearly all business
protection (squib— anticipates litigation. Not just documents prepared to aid in
2nd Circ the conduct of litigation—much less just primarily or
1998) exclusively to aid—but rather extending to documents
prepared because of litigation
• DC Circ. even broader: Motive-based test: any product
prepared where actual (subjective) and reasonable (objective)
belief that litigation a real possibility
• Some dissenters reasoning that narrow interpretation of 26b3
could lead to silencing of attorneys & their communication;
chilling of representation; causing ineffective/inefficient
advocacy & lawyering
Discovery Atty-client Upjohn • 26 • Atty-client priv acknowledged as sacred. Does apply to
privilege & corporations—not just to execs, but to all members acting in
work product context of employment, since 2-way street: atty needs
protect for privilege, too! Lower-level employees can still have effect on
corporations proceedings. Communications between employees & counsel
are in atty-client context, so priv
• No “zone of silence” policy concerns b/c adversary in no
worse position than if communication had never occurred
• In privilege, facts are not shielded, just communications.
Facts can still be gotten through depositions, etc.
• So how about memos, beyond responses to questions? Work
product doctrine: Sufficient showing necessary to overcome?
Hickman saying work product not absolute…maybe OK then
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joinder?: West • 12b7 that interest” in injunction against—if feasible Why not
-Necessary v. feasible to join Lord’s? No personal jurisdiction…
proper v. • So passing 19b test—can the show go on without this
indispensable necessary party, or is party indispensable? Equity & good
conscience? Case-by-case question… Would it be prejudicial
Narrow to either VW or Lord’s (other parties)? No: Lord’s rights
interpretation w/VW not at risk here, so no prej to it. VW could be subject
of to inconsistent obligations to H & L…but that’s because it
indispensable decided to make inconsistent leases. Inconsistency is a result
of its own actions, not of the court’s procedure (relevant?)
Inconsistency Certainly all the rights & obligations arising under a lease can
vs. prejudice be adjudicated where all of the parties to the lease are
present… (conclusory?)
• What if Lord’s files suit elsewhere & gets judgment? No suit
has been filed, and no evidence that other court would take
view different than this one. Lord’s was given chance to
intervene—chose not to—so sufficient representation
• We sometimes let the show go on even if ‘inconsistent
obligations’. Not the same as prejudiced: inconsistent
obligations is just a qualifier to get to the consideration of
wither prejudice…
• Court discounting potential harm to VW should subsequent
suit follow…”peeking at merits”? Legitimate—prejudging
VW before the case?
Impleader -Impleading a Toberma • 14 • No R. 14/impleader as a type of defense—can’t claim another
3rd P Def— n • 12b6 party wholly/directly liable; only for secondary liability.
what kind of (Allow chance to amend 3rd P Complaint)
liability
necessary?
• R. 14 allows impleading of 3rd parties who may be liable to 3rd
Party Plaintiffs for all/part of orig plaintiff’s claim against 3rd
PP/orig Def. For judicial economy: don’t have people suing
-Plaintiff (non)
down the line for liability; settle in one suit. R. 14 is for
autonomy
secondary liability—that if D found liable, then 3rd PD also
liable to him under some theory of derivative liability. A
-Secondary
theory that another party is the correct defendant is not
liability
appropriate for R. 14 3rd P Complaint—that’s for an answer,
not an impleader
• Impleader in general: Compromising autonomy of plaintiff
for the sake of judicial efficiency
Impleader Impleading a Joe • 14 • Court agrees that JG & Capts cannot both be employers, but
related Grasso not either/or: could be a third finding—that crew are self-
“either/or” employed. Thus, 3rd P liability doesn’t depend on main claim
(supposedly) (as required); rather, it’s its own, independent complaint, so
party, but no impleader.“Claim” to be construed expansively—allow
when the right impleader if D’s right against 3rd P are merely an outgrowth
claimed of same core facts which determine P’s claim. *But no
against 3rd impleader if independent, separate, even same core of facts
Party is
separate from
• US acknowledges that no normal secondary liability here—
but argues that should be impleaded b/c so related that in all
main claim
likelihood one of the two will be liable, & doesn’t want to get
whipsawed in 2 suits, lose both because each defendant claims
it was the other. Court saying that if it were either/or, then
OK*…but possible that fishers are independent contractors (in
fact, gov had argued this in a prior case), so fails. (*Sloppy
30
-Problem: where class action less clearly appropriate: Extra req’s: (1)
representing common issues predominate individ; (2) class resolution
clients who superior to other forms of res
don’t exist • 23a/b not discretionary criteria in settlement context. NO new
yet… “fair” standard outside 23 just b/c settlement. (Settlement
cond. not necessarily favoring class cert.) Here,
-Settlement predominance factor not met. Caution when individ sakes
only class high & disparities among members great. 23a4 adequacy not
met. Diverse subclasses—not repr by 1 class of P’s, especially
-Peeking at “exposure only” members, who have diff interests than
merits of currently injured P’s, who want $$ now. Some members may
settlement not even be aware of their exposure yet…yet they would lose
before rights by class cert! So notice not even satisfied either.
certifying?
• Leave it to Congress to make asbestos settlement. If it doesn’t,
Rules stand, strictly. Quasi-workman’s comp administrative
-Deciding
system better & more efficient than judicial system (you
unripe claims?
wouldn’t be allowed to go to court)
• Dissent: Not liking tenor of opinion, which suggests that
settlement is substantively bad. 1) Need for settlement is big.
2) More weight to settlement issues for preponderance—no
specific grounds to second guess DC. 3) Defer to DC on
adequacy of rep ?s. Yes, a problem w/rep, but that’s common
to all toxic tort CAs.
• Who would oppose workman’s comp system: Some P’s
thinking more harmed than others (and wanting punitive
dmgs); and trial lawyers definitely not wanting to miss out