Agenda for 2nd Class
• Misc.
– Nameplates out
– Handouts
• Slides
• Pleading Handout
– If you have extra handouts or sign up sheet, pass them on or give them
back to me
– Lunch
• Sign up for next week
• A-E. One slot opened up for today lunch
• Today, 12:30, Outside Rm 433, bring your lunch
– Everyone should have received emails from me
• Service of Process & Due Process (cont.)
• Service under FRCP
• Complaint and Motion to Dismiss
• History of pleading
• Intro to Iqbal
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Assignment for Next Class I
Complaint and Motion to Dismiss (continued)
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FRCP 9, 10, 12(e); Forms 7, 10, 11
Yeazell pp. 384-401
Pleading Handout
Questions for next class and Writing assignment for Group 2
– Questions on last page of Pleading Handout
– Yeazell p. 399-400 Q2
– After Iqbal, would you expect defendants to win a greater or lesser
percentage of 12(b)(6) motions?
– If you were on the Supreme Court, would you vote to overturn Iqbal?
Why or why not?
– How would the Haddle complaint be analyzed after Iqbal?
• What allegations would be ignored as conclusory?
• Do the remaining allegations present a plausible claim?
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Assignment for Next Class II: Rule 11
• FRCP 11; Yeazell 412-26
• Background
– Subject matter jurisdiction
• 2 basic reasons to be in federal court: federal question and diversity
of citizenship
– If more than 2 parties, need complete diversity
• No plaintiff can be a citizen of the same state as any defendant
• OK: CA v. MA; CA & NV v. MA & CT; SD v MN & MN
• Not OK: CA v CA; CA & NV v. MA & CA; SD v. MN & MN & SD
– Federal question jurisdiction established by pleading violation of federal
statute, even if it turns out that facts do not support
• 3 Blackboard Questions on Rule 11
• Questions to think about & Writing Assignment for Group 2
– Briefly summarize Walker v Norwest and Christian v Mattell
– Yeazell pp. 415-6. Qs 1-5; pp. 419-20 Qs 1, 2c&d,
– Hypos on next 2 pages
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• For M 9/8. A Civil Action (See website for pages & questions)
Would Rule 11 Sanctions Be Appropriate If …
• You are externing in a legal aid clinic. A case comes in. The statute of
limitations runs out in 3 days. Ordinarily that is enough time to research the
issue, but you have a paper due in 3 days as well. So you skimp on
research. It turns out that the law is dead against you.
• Lindsey is a tenant in public housing. The government brings an eviction
suit claiming she hasn't paid rent. Lindsey comes to you at legal aid Clinic.
She says the government never tried to reach her before filing suit and
shows you the canceled check. A canceled check indicates that the check
was received and cashed or deposited.
• Plaintiff comes in and says that defendant ran stop light and bashed into her.
You check the police report, and it says that 5 witnesses swore that plaintiff
was the one who ran the light. The plaintiff admits that is true, but says she
wants to sue anyway so she can get a small settlement. You decide that
you cannot, in good faith, allege in the complaint that defendant ran the stop
light, so you decide to be very vague and merely allege “defendant operated
vehicle negligently…”
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Would Rule 11 Sanctions Be Appropriate If …
• Prof. Bice writes a scathing article criticizing a recent Supreme Court
decision. You read the article, and, on behalf of a client, you file a suit which
you can win only if the Supreme Court reverses itself. Your complaint cites
both the Supreme Court decision and Prof. Bice’s article.
• Same as previous question, except that you do not cite the Supreme Court
decision and Prof. Bice’s article in your complaint.
• Heal the Bay comes to you and says, “We need injunction now. We just
found out that the sewage treatment plant in Santa Monica is planning to
release massive quantities of dioxin into the bay in two hours.” You
immediately rush to court and file for a TRO. A TRO (temporary restraining
order) is an injunction issued by a judge on short notice in emergency
circumstances, often without an opportunity for the defendant to respond.
The next day, after the injunction has issued, you learn that Heal the Bay
was only responding to a false rumor.
• Your ex-boyfriend/girlfriend scratches your 1995 Ford Escort at an
intersection. You don't care about the scratch, but you are really mad at
him/her for the emotional torture he/she put you through. Of course, you
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can't sue him/her for the bad breakup, but you decide to sue him/her about
the scratch.
Last Class
• Mostly about reading a case carefully
– Very important to understand
• Who parties are
• Who won at each stage of proceedings and why
• Will help you in all classes, especially in Civil Procedure
• 3 factors to consider in evaluating constitutionality of service of process
– Probability of actual notice
• Compare probability under method at issue to alternative
– Cost of notice
• Compare cost of method at issue to alternatives
– Stakes
• Method is unconstitutional if there is an alterative method that can achieve a
higher probability of actual notice at reasonable additional cost (or lower
cost) considering the stakes. When more is at stake, higher costs are
reasonable.
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Greene v. Lindsey Questions II
• 9) Suppose you park your car in unapproved spot on the USC campus. A
USC Transportation Services employee tacks a notice on your car stating
that you must move it within 24 hours or it will be towed. You don't see the
notice in time, and USC tows your car. You file suit in federal court arguing
that USC violated your Due Process rights. Are you likely to win? Be sure to
think of arguments both for why you might win and for why you might lose.
Which is more persuasive?
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Greene v. Lindsey Questions III
• 10) According to government records, Jones, a homeowner, failed to pay
property taxes on her home for several years. According to statute, if a
homeowner has not paid her taxes for several years, the government has
the right to sell the property at a tax sale. The government notified Jones of
the planned tax sale by sending a certified letter addressed to her at her
home. No one was home to sign for the letter, so the postal carrier left a
sticky-note on her door advising her that a certified letter was being held for
her at the post office. No one claimed the letter at the post office, so the
letter was returned to the government office that sent the letter. The
government proceeded to sell Jones’s property. Has the government
violated Jones’s constitutional rights?
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Greene v. Lindsey Questions IV
• 11) Dusenbery was arrested and convicted for various drug offenses.
According to statute, cash or other property that was acquired through illegal
drug sales is forfeit to the U.S. government. After Dusenbery was
incarcerated, the government initiated forfeiture proceedings regarding more
than $21,000 in cash that it found at Dusenbery’s house. The government
attempted to notify Dusenbery of the forfeiture proceedings by mailing a
certified letter addressed to him at the prison where he was being held. A
prison official signed for the letter, and the prison had procedures for
delivering mail to prisoners. It is unclear whether the procedures were
followed and whether the letter was ever delivered to Dusenbery. Since
Dusenbery did not contest the forfeiture, his money was turned over to the
U.S. Treasury and spent on student scholarships. Has the government
violated Dusenbery’s constitutional rights?
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Service of Process under FRCP
• 4(c)(1). Summons and complaint served together
– Summons (Form 3, p. 70); Complaint (Forms 10-11, pp. 74-75)
• 4(c)(2). Service by anyone 18 or older not a party
• 4(e). Service on individuals by
– (1) method allowed by state law, or
– (2) delivering copy personally or leaving copy at home with person of
suitable age living there
• 4(h)(1) Service on corporations by
• (A) method allowed by state law, or
• (B) delivery to officer, managing or general agent, agent authorized to
receive service
– Officer = very high ranking person, e.g. CEO, Secretary, Treasurer
– State law usually requires designation of someone to receive service
» Names and addresses on website: http://kepler.sos.ca.gov/
• All methods must be constitutional
• Waiver procedure in 4(d) seldom used, because defendant gets 60 days to
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answer complaint, rather than ordinary 21
Other Relevant FRCP Provisions
• 1. Rules “construed … to secure the just, speedy, and inexpensive
determination of every … proceeding”
• 12(b)(4). Motion to dismiss for “insufficient process”
– Defect in summons (rare)
– Plaintiff can refile (start over)
• 12(b)(5). Motion to dismiss for “insufficient service of process”
– Plaintiff can refile
• 55. Default judgment
– If defendant fails to respond to summons or otherwise defend the case,
court may enter judgment against it.
• 60. Parties may receive relief from judgments (including default judgments) if
there was a clerical mistake, for “mistake…. or excusable neglect,” or other
reasons.
– Very unusual
• Forms 1,3. Forms for summons
• Forms 1,2,5-6. Forms for Waiver of Service of Process
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• 84. Forms are legally valid
Service of Process Questions I
• 1) Prof. Armour sues Prof. Garet for a playground injury. He attempts to
serve process but the process server he hired is unable to find Prof. Garet
and his house is abandoned. So Prof. Armour publishes the summons in
the Los Angeles Times. Is service of process valid?
– Assume that the case was commenced in the federal district court for the
Central District of California and that Prof Garet resides in that district
– Note that California statutes include the following provision:
• Cal. Code Civ. Pro. 415.50. Service by publication
• (a) A summons may be served by publication if upon affidavit it
appears to the satisfaction of the court in which the action is pending
that the party to be served cannot with reasonable diligence be
served in another manner specified in this article…
• (b) The court shall order the summons to be published in a named
newspaper, published in this state, that is most likely to give actual
notice to the party to be served….
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Service of Process Questions II
• 2) It has been proposed that the Federal Rules of Civil Procedure should be
amended to add a new FRCP (4)(e)(2)(D) that would read:
– (D) delivering a copy of each by electronic means at a location previously
accessed by the individual within 60 days before the copy is delivered.
• a) Is this proposed amendment constitutional? What factors are relevant to
this question?
• b) Is this amendment a good idea? If you were on the Rules Advisory
Committee, would you recommend its adoption?
• c) If it were your responsibility to draft a new rule relating to electronic
service of process, would you propose different language? If so, draft the
rule you would propose.
• 3) How could one argue that service of process by electronic means is
already allowed under the FRCP in some circumstances? If you need more
information to answer this question, what information do you need? I do not
encourage you to do research to find the information you would need.
Rather, I hope you will read FRCP 4 carefully to see what provision or
provisions of it could be construed under some circumstances to allow 13
electronic service of process.
12(b)(6) Motion to Dismiss
• 12(b)(6) . Defendant challenges complaint by making motion to dismiss for
failure to state a claim upon which relief can be granted
– Judge assumes all facts in complaint (but not legal conclusions) are true
– See handout for problems justifying dismissal
– If motion granted, plaintiff almost always has chance to amend
– Core purpose – dismiss claims not supported by law
• Not that may require resolution of difficult, close, and/or new legal
issues
– Newer purpose – dismiss claims with insufficient factual support
• See Iqbal. very controversial, because plaintiff may need discovery to
get factual support, but not discovery if case dismissed
• Called “demurrer” in common law and in many state law systems
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Haddle
• Briefly summarize Haddle v. Garrison.
– Your summary should include the parties, the key
allegations of the complaint, the way each court which heard
the case ruled, and why.
– Try to keep your summary brief. The summary I drafted is 4
sentences and 92 words. Concision is a virtue!
• Yeazell pp. 372 Q1
• Read 42 U.S.C. § 1985(2) carefully (Yeazell p. 373). What are
the elements of a cause of action under that statute? That is,
list all the things that the plaintiff will have to prove to prevail if
the case goes to trial.
• For each element you listed, find the corresponding allegations
in the complaint (pp. 370-71).
• Questions 1 & 2 on Yeazell pp. 376-77
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• Questions 1-2 on Yeazell pp. 382-83
History of Pleading I
• Writ system. 12th – 19th centuries
– Technical, formulaic; procedure varied by writ
• Code pleading, 19th-present
– Supposed to be non-technical
– Plead facts (but not conclusions or evidence)
– Line between facts, conclusions, evidence hard to draw
• Notice Pleading, 20th century
– Eliminated distinction between facts and conclusions
– 8(a) “statement of CLAIM” not facts
• 9. Only a few matters must be plead “with particularity” (e.g. fraud or
mistake)
– Form 11 is example of notice pleading: “defendant negligently drove a
motor vehicle”
• “negligently” is usually considered a legal conclusion
– “drove dunk” or “drove 10 miles over speed limit” “or “drove while
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texting” would be fact
History of Pleading II
• Notice Pleading (continued)
– Drafters of FRCP wanted to resolve issues on merits (facts) rather than
on pleading technicalities
– Drafters thought it best for nearly all cases to go to discovery
• Unless law meant success on merits was impossible
– They didn’t realize how expensive, time-consuming, and intrusive
discovery would become
– Modern pressure to tighten pleading standards stems from view that it is
unjust, unfair, and inefficient to subject defendants to expensive
discovery if plaintiff’s case likely lacks merit
• Goal is to use pleading and 12(b)(6) to make sure only plausibly
meritorious cases get to discovery
– Problem: unclear whether can tell from complaint whether plaintiff’s case
likely lacks merit
• If defendant is concealing evidence, case may have merit, even
though plaintiff has little evidence at outset.
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History of Pleading III
• Iqbal
– Back to requirement to plead facts?
• Why matters
– Notice pleading allows weak claims to get to discovery
• Discovery is very expensive
• So fact pleading can same money and time
– Fact pleading means that it may be impossible for injured party to bring
claim, because cannot know facts without discovery
• Suppose you think your suppliers have conspired to raise prices in
violation of the antitrust laws. You know they raised their prices at
the same time, but without access to emails, depositions, and other
discovery, you have no proof. Insufficient to plead “defendants
conspired,” because that is conclusion, but don’t know facts. Rule 11
says complaint can’t make up facts. (Twombly)
• Similar issues with tobacco fraud or employment discrimination
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– Policy question: Should people be able to sue when don’t have much
evidence to support liability, but might find it through discovery?