civil procedure class notes

8/14/2019 Civil Procedure Class Notes

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Civil ProceduresCourse Outline I. Introduction to the course and overview of the value of procedure

A. Introduction 1. Intro to course nothing2. Intro to American Courts system nothing3. Art III of US Constitution Section 1 - Set up Supreme Court & Judge terms and allow for other courts

a)Judicial power in US vested in Supreme Courtb)Congress can ordain inferior courtsc)Judges in any courts will hold office for life, assuming good behaviord)Judge pay cant be decreased

Section 2(1) - Judicial power extend to 9 types of controversiesa)Matters in law or equity re: US Constitution, laws of USA and

treaties made under such laws authorityb)All cases affecting ambassadors, consuls & other public figuresc)Cases affecting admiralty and maritime jurisdictiond)Controversies to which the USA is a partye)between two or more statesf)between a state and citizens of another state

g)between citizens of two different statesh)between citizens of a same state claiming land under grants

in different statesi)between a state or citizens thereof and foreign entities

Section 2(2) - Supreme Court jurisdiction on points abovea)Regarding points 2, 5, 6 and 9 -Supreme Court has original jurisdictionb)Points 1, 3, 4, 7 and 8 -Supreme Court has appellate jurisdiction

Section 2(3) - Criminal trial rules set fortha)Criminal trials are by jury (except impeachment).b)Such trials held in state where allegedly committedc)If not committed in a state, then Congress can decide

Section 3(1) - Treasona)Treason defined as aiding and giving comfort to the enemy, or levying

war against the USA.b)Cant be convicted of treason unless two people witness same act orc)Accused confesses in Open Court.

Section 3(2) - Punishment for Treasona)Congress can declare punishment for treasonb)No attainder (punishment without trial) is allowed

B. Goldberg v. Kelly 1. The case

Facts (Class action) NYC residents receiving welfare benefits under federally assistedAFDC and NYS general Home Relief program felt that the NYS and NYC officesadministering these programs terminated, or were about to terminate, their aid without priornotice or a chance for a hearing, denying them due process of law guaranteed under the 14thamendment to the US Constitution. After the suits were brought, the State and City adopted

measures to provide notice and post termination hearing. The P felt such measures wereinadequate with regard to due process as the new procedures did not (a) allow for personalappearance before termination, (b) allow for oral presentation of evidence and (c) allow forcross examination of adversarial witnesses. Procedural History: The suit was first broughtbefore the District Court for the Southern District of New York against the City and State ofNew York. The P/Apee claimed they were denied the procedural due process, therebyviolating the Due Process Clause of the 14th amendment. D contended that the newprocedures sufficed for due process considerations. These procedures notified the welfarerecipient via mail. Such notification also allowed the recipient to contest via mail.Additionally, recipient could ask for post-termination oral hearing. D also would allow for a


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judicial review if the welfare recipient did not prevail at the post termination hearing. Finally,D also contended that pre-termination would not be cost beneficial. The District Court foundfor the P/Apee, holding that only a pretermination hearing would satisfy the constitutionalrequirement under 14th amendment. D.C. also held that the cost benefit argument does notoverride the concerns of the individuals. The Commissioner of Social Services for NYC(Goldberg) appealed (State did not appeal).Issue Was the District Court correct in holding that the City of New York needed to holdpre-termination evidentiary hearings with welfare recipients in order to satisfy the citizens14th amendment rights to due process?Holding Ct considers welfare $ = property to fall under 14th Amend. Must balance thenature of gvt interest and private interest, and here private interest of pp deserving welfarewrongfully terminated and reduced to starvation far (brutal need) outweighs in gvt costs ofproviding preterm hearing as opposed to post term hearing. The fundamental requisite of dueprocess is the opportunity to be heard (meaningfully). Written submissions are unfair to thosew/ lacking education, credibility of witnesses never tested... Must have timely and informativenotice. Must have pretermination hearing but it does not have to be a judicial proceeding--just has to have the opportunity to be heard in a meaningful manner (here, orally w/ counsel)w/ opportunity to confront and cross-examine State's witnesses. Must also have the ability toappeal. Ct worried about false-; but decision will false+. (Ct weighs #1 + #3 of Matthews)Rule resulting minimum due process requirements:

1)Some kind of NOTICE-statement of reasons and support for action being taken (w/o this responding

would be meaningless)-appeal rights-TIMELY

2)Right to be HEARD-timely-ability to respond in a meaningful way (depending on sit, may be written or oral)-take account for biases of witnesses (credibility issue -rt to cross-examine)

3)Decision-impartial decision maker-inform in meaningful manner (reasons for decision so can appeal meaningfully)

4)Responding/Appeal

-judicial review of some kind (must at least be potential to go to ct at end of line) Rationale D argued two points. 1) The pre-termination written correspondence followedup by the option of a post-termination face-to-face meeting met the due processrequirements. 2) The cost to the government, that is, to society, would outweigh the benefitsprovided to the recipients.To the first point, the S.C. held that pre-termination hearings are required in order to ensurethat such citizens have the opportunity to continue to subsist on a daily basis until such timeas they have exhausted all avenues afforded them under the 14th amendment. Due processincludes the ability to cross-examine adverse witnesses (as ordained in the 6th amendment)(Greene v. McElroy). Given the fundamental needs that welfare provides, such opportunityshould be provided before termination of benefits, not after. Specifically, a written noticedoes not allow the recipient the opportunity to discuss the issues, to determine what, exactly,the issues are. Moreover, the written process does not allow the recipient to question the

City and ask what the nuances of the issues were that gave rise to the preliminary decision toterminate the rights. Finally, as a preliminary decision to terminate is made by a case worker,no one is available to be an advocate for the recipient at the time the decision is made.To the second point, the S.C. noted that such approach does not hinder the nation as awhole (as opposed to what effect it has on the individuals in question), but rather helps thenation as the continued benefits until due process is exhausted better ensures that thoseindividuals who meet the requirements can continue receiving welfare, which program guardsagainst the possibility that those less successful will give up on society and seek anothermeans of surviving. The S.C. further did not agree with the Ds claim that such points,though salient, are overridden by the fact that the great majority of terminations are not


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contested, that, therefore, this pre-termination process, would be costly to the government,and yield little change to the recipients at the end of that process. Ds contention in thisregard is overridden by the D.C.s points on societal advantage of the welfare program.The Supreme Court also noted that the need to determine what procedures are required tomeet the due process requirements are a function of the governmental function and individualneeds. The extent to which procedural due process must be afforded the recipient isinfluenced by the extent to which he may be condemned to suffer grievous loss (Joint Anti-Fascist Refugee Committee v. McGrath-p27r). Cafeteria & Restaurant Workers Union v.McElroyechoes this sentiment.Dissent (Black) 1) The cost to the government, to the people, would be onerous, would outweigh the benefits

derived therefrom.2) Some people who are on the rolls fraudulently would continue to receive such benefits

while due process worked its way through the system.3) He doesnt think that the Constitution is the place to address such issues, but rather the

House. He feels that carrying out new experiments in welfare s/n/b frozen into theconstitutional structure, but rather left to the legislature.

4) Is afraid that this decision sets a dubious precedent, that the Supreme Court could beginto make regulatory policy decisions under the auspices of of DPC. He says that thejudges sitting at any particular time could simply decide what s/b the law, citing the DPC.

5) In this case, the P is getting minimum due process. He fears that, by hypothesis, futurePs could ask for full judicial review on all cases, citing DP protection, and could thereforetie up the Courts and various regulatory bodies time while people who deserve andrequire welfare dont receive it as the administrators are too busy fighting term cases.

6) He also made an argument that welfare receipts for individuals who fraudulently acceptsuch benefits do not deserve the protection accorded to property rights owners in the14th amendment.

2. Michelman article Value of Procedure: - Two ways to evaluate procedural system:a. Outcome oriented (if outcome good, then procedure good- Lawr Grandma)

Does it could accuracy of results? Come up with hypo where outcome is not theissue. Housing question - should the lease person have a right to a hearing?Foster child question - find cases where outcome is not at stake. Then findwhat Michelman helps us do in terms of determining what procedures are

required.b. Non outcome oriented ways in which to measure a procedural system:

Four values of Michelman:a. Generally accepted reasons for litigating. He takes those reasons and thinks

of them in terms of values (end, interests, purposes) that are furthered byallowing one to litigate. (His article in response to Sup Ct. decision to notallow certain people to be able to litigate (as filing fees would not allow themto do so).

c. The four values:Dignity Values: concern for humiliation/loss of self-respect if denied opportunity to

litigate; most clearly offended when person formally charged w/ wrongdoing andprevented from responding or forced to respond w/o help.

Participation Values: As derived for 1st Amend "access" litigation is a way to

participate in societyDeterrence Values: means of effecting or modifying behavior.Effectuation Values: OUTCOME DRIVENRights only exist if there's a way to enforce

them; litigation is that way.Hypo: Litigation deciding whether child in foster care should be returned to birth parents.Foster parents want to speak, but they have given all info to social services and theirtestimony will in no way change the outcome of the case, they will contribute nothing tothe accuracy of the result. Should they be allowed to testify?

1)Dignity Values: foster parents might be humiliated if can't testify2)Participation Values: Foster parent have an emotional interest, not an outcome


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effecting one3)Effectuation values: OUTCOME driven; so since foster parents have nothing

to add to the outcome, they can't use this to get judge to let them beheard.

*So, on one side ct should let them speak to help them feel better. But on the other sidetheir testimony wastes time and $ to no avail (no effect on outcome) and they shouldrelease their tension in another way (punching bag), the ct is not an outlet for theirfrustration.

3. Leff article Litigation sim to game b/c of rules: relatively rigid, formal structure. But diff b/cit has impact beyond game itself. Says legal process is gamelike (formalistic structure, rules,rules that pre-exist the game - dont change them as you go along) Not gamelike in that ithas implications outside the boundries of the process (game). More profoundly, games are ameans by which to make something conclusive, deterministic something that is not so in reallife. (in games, there are always winners and losers, unlike life). Litigation plays that role insociety.

4. Adversary system (HTF 32-40) Articles: Hazard: The Adversary System and Hand, TheDeficiencies of Trials to Reach the Heart of the Matter nothing of note.

5. Goldberg complaint nothing of note.C. Mathews v. Eldridge

1. The case

Facts filed case in fed ct under 1331 of a violation of 5th Amend due process rts (b/cdisability benefits are fed, whereas welfare benefits of Goldberg are state). Not a class action,but applies to everyone because it went to Sup Ct.Issue Does the Due Process Clause of the 5th Amendment require pre-terminationevidentiary hearings to Social Security disability benefit payment recipients?Holding In light of the mix of strong evidence and opportunities provided to beneficiaries topresent their cases in the current process, low risk of erroneous deprivation of benefits andpotentially significant administrative and cost burdens to the government and taxpayers forsuch hearings, the current procedures are sufficient in with respect to the beneficiaries 5thAmendment rights. Due process does not require a preterm evidentiary hearing here. Dueprocess requires only that the procedures be tailored, in the light of the decision to be made,to the capacities and the circumstances of those who are to be heard to ensure that they aregiven a MEANINGFUL opportunity (outcome effecting!) to present their case! Procedures

already existing satisfy due process here.Rule TEST:

1)Private Interest-to get preterm, you must be either in as much need as a welfare recipient or in

more need than a disability recipient2)Risk of Error + Value of Additional Procedures to Reduce Error

-accuracy of the process-subjective v. objective evidence makes a difference

3)Gvt Interest-avoiding paying unrecoverable benefits to judgment proop pp who were

ineligible-minimize administrative costs (cost of # of hearings)

Rationale Three pronged formula addressed in the opinion. The decision turns on the mix

of private interest, risk of erroneous deprivation and public interest affected by the currentand prospective procedures.Private interest - These benefits are not deemed as life sustaining as Goldberg. There areother means by which SS beneficiaries can subsist, including work and other governmentalassistance programs. Also, the pretermination written evidence is much less subjective thanin the Goldberg case. To wit, much of the weight in the preterm process is given to medicaldoctors reports. Such reports are more likely to reflect the accurate state of affairs asopposed to the Goldberg case. Moreover, a questionaire and subsequent written dialoguepretermination allows the SS beneficiary to frame her/his response to the State Agency.


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Risk of erroneous deprivation - In this case, it appears that approximately 3 to 12% of thecases would be reversed, including 9% in the first two months. That yields only 3% thatwould be outstanding for a material amount of time, not a large enough percentage to creatprobative evidence supporting a change in the process.Public interest - The potential costs to the public appear to be in excess of the benefits thatwould ascribe to the beneficiaries harmed by a holding in favor of the D. Given the strengthand fairness of the pretermination process as well as the opportunity provided for a post termevidentiary hearing, the incremental burden to the public is not warranted. Lawrence #1Goldberg: brutal need: Matthews: less need.

Powell says that on a continuum, Goldberg is all alone in the brutal need thus it is a casewhere there is an overwhelming private interest. But Matthews is only unable to engagein substantial gainful activity, a far cry from starvation to compel a preterm hearing!Also, if its so bad for a Matthews (brutal need), he can always become a Goldberg andget a preterm hearing b/f cut off of all potential public assistance. Thus Powell makes adistinction b/t Goldberg and Matthews here.

#2In both Goldberg and Matthews, gets access to all relevant info is relying on(witnesses, medical records), but the difference is that: Goldbergsubjective calling forpreterm b/c there are credibility issues w/ adverse witnesses needing to cross-examine. Matthewsobjective thus no preterm b/c written medical records speak forthemselves (but what if the docs have diff opinions; who do you go by; thus Matthewscan be looked at as subjective too).

#3Powell shows no diff b/t Goldberg and Matthews here.D arguments:

-welfare benefits are not property-'s interest is not brutal need, Goldberg doesn't apply-medical evidence is objective and not biased thus doesn't require cross-examination- in gvt costs could take $ away from those deserving it

P arguments:-welfare benefits are property (even if just statutorily created property)-'s interest is underestimated-even medical evidence requires the subjective testimony on the doc, or conflicting docs-need to cross

-gvt interest same as Goldberg, which involves society caring for poor and disabledSome kind of balancing will be implicit in any decision. Powell, in Mathews, makes thisbalancing explicit. Explicit balancing in Mathews and either implicit in Goldberg, or a limitlessvoid in Goldberg (could lead to $300 billion extension for welfare in Goldberg). On that basis,could say that Mathews gets it right. Or we could say that the balancing test gets it wrong,because it deprives the due process clause of its strength, of keeping property as a hardfigure, rather than a property type scenario, where we can decide what is and what isntproperty. Could use same argument with First amendment. Could also say this is slipperyslope. Critique: Goldberg designed to expand due process, Mathews limits it to brutal needs(maybe only welfare benefits). Lets assume its the right test. Does he get the test right?Courts that apply three prong test since Mathews, do so assuming they are separate anddistinct.Argue for majority:

First prong:Welfare not a program to alleviate poverty, its one to help people who cant work. Aconnection, yes; but not a strict connection.Second prong:Medical evidence is more objective than that in Welfare case.Third prong:There are real costs to hearings and in providing benefits in all cases of false positives.We will, then, wind up (by paying benefits to false positives) create a bunch of false negatives(not those who dont get hearings, but those who never get in due to limited resources). This


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last component of Powells argument should sound very familiar (like Blacks dissent). Towhat extent does Blacks dissent make a back-door re-emergence in Mathews?Argue against majority:First prong:Need for disability benefits is completely underestimated in majoritys opinion. These peoplewere talking about have, at some point, been found to be disabled. Their reliance on thesebenefits is much higher than Powell makes it out to be. (aside) (one difference betweenmajority & dissent) Justice Brennan: Deals with specific facts about Eldrige. Eldridge andhis family, after the end of admin case, and benefits cut off, had all furniture repossed (exceptfor one bed). Is this fact a relevant part of the lawsuit or not? Powell: NO Brennan:YES. Brennan, in Goldberg, said this brings passion back into this abstract..... He is sayingwere, again, losing that in this opinion.Second prong:Medical evidence is important. What are responses within a range of test results? Thesetests are being interpreted (not temperature on thermometer).Third prong:There are real costs and dollars here, but at the end of the day, is the govt interest here anydifferent than it was in Goldberg? Does this test, as applied by Powell, miss a whole type ofgovernment interests (Michelmans article - Participatory interests, dignity values, etc.) Missthese if we strictly look at Utilitarian values.

Private Interest - life threatening? survivalist?Risk of erroneous deprivation(+ probability of improving accuracy)-not large in this casePublic interest (Government burden) - given other two, is cost to public unduly large?Continuum -

Goldberg v. Kelly (Welfare benefits)- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Mathews v. Eldridge (Disability benefits)Sniadach v. (garnishment of wages)Fuentes v. (replevin)Arnett v. (nonprobabtionary federal employee - jobs)Bell v. (drivers license)

(All below Goldberg do not require preterm evidentiary hearings.)2. Posner article Outcome Oriented:

Posner - Economic Analysis - at the margin - i.e. risk/value of addl process1. Legal system involves costs even when it works perfectly2. Were there no legal system then there would be different kinds of costs imposed on

society - costs of all substantive rights that are not vindicated. Purpose of legalsystem = minimize these costs.

3. Ideally, cost of system < costs avoided by not having the system4. Goal of law: improve economic efficiency, not compensate victims.

3. Mashaw article - Non-Outcome Oriented:Mashaw: closer to Goldberganalysis: evaluate procedures according to values of dueprocess rather than formal techniques. Value = goals of procedural system, not strictly$ concerns. Eldridgeis bad b/c it takes a utilitarian approach (weighing societal value &cost). Alternative theories: individual dignity, equality (of class treatment),tradition/evolution (Cts legitimacy and effect on future).

D. Gilbert v. Homar Facts Res was security guard at East Stroudsburg Univ. (I.e., worked for state). Arrested fordrugs, charges dropped. Suspended when arrested and even after charges dropped, while ESUcontinued investigation. Eventually told hed be a gardner, and got back pay. Said suspensionw/o notice and chance to be heard violated DP rights.Issue Does a State violate the DPC of 14

thamendment if not provide notice and hearing before

suspending a tenured public employee w/o pay?Holding Here, Govt. likely not harm Matthews given the rationale below. Supreme Court didsend back to lower court to have them determine if the suspension post-charges being droppedincreased the risk of erroneous deprivation to a point where he should have received the hearing.


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Rule The three part test from Mathews.Rationale Private interest Here, taking into account the lack of length and finality of thedeprivation, not a strong argument for P. Govt interest Is strong when one who public dependsupon is arrested for drugs (even if not yet guilty). Risk of erroneous deprivation Purpose of pre-term hearings is to ensure reasonable grounds to support suspension. Here, the arrest for drugpossession gives us the reasonable grounds.Lawrence -

E. Intro to FRCP and overview of development of lawsuit n/aII. Pleadings: Claims and complaints, defenses and answers

A. Elements of the Complaint and Answer 1. Intro notes (HTF 557-558; 565; 612-613) A statement of a cause of action (C/A) is the

statement that certain events occurred in the out-of-court world which prima facie showthat the complainant is entitled to a remedy. To determine if the complaint does state aC/A, it is necessary to make reference, first, to the applicable substantive law and,second, to the rules of pleading.ComplaintInitial pleading in a lawsuit, and is filed by the . Alleges sufficient facts thatif true would entitle to legal relief. does not have to prove anything here. Must bestated clearly and specifically so that can answer meaningfully. Plays the role ofNOTICE and 12(b)(6) tests the adequacy of that notice (vague complaints don't giveadequate notice and may be dismissed under 12(b)(6)). Must allege facts to support alegal conclusion, not just assert a conclusion. Filing the complaint commences thelawsuit (exception: in 1332 cases, although filing the complaint commences the action, itdoesn't satisfy or toll a SOL requiring actual service of process. (See Guaranty andRagan) states the C/A: a statement that certain events occurred which the PFcase willshow that the complaint is entitled to a remedy.AnswerThe 's response to the 's complaint. What doesn't deny is consideredadmitted.

2. Goldberg complaint (M 39-52) (nothing)3. FRCP 7-10 Cause of action: statement of certain events that, prima facie, entitle

claimant to remedy.R.7 - Pleadings Allowed; Form of Motions - provides for complaint, answer,counterclaims, replies, etc.R.8 - General Rules of Pleading -

(a) claims for relief - state juris, claim showing entitlement to relief, and relief demanded(b) defenses/denials - admit, deny, or not enough info - subj. to R.11(c) affirmative defenses - a defense which the has a burden to prove. Examples

include res judicata, statute of frauds, statute of limitations, waiver.(d) failure to deny = admit(e) pleadings shall be concise, direct, consistent - subj. to R.11R.9 - Pleading Special MattersR.10 - Form of Pleadings

4. FRCP 12 12(b) motions: 's alternative to the answer-optional

- doesn't have to answer until motion decided-if wins on motion, never has to answer-can make 12(b) motion in answer also

-motions based solely on the pleading (anything beyond that -affidavits, etc.-would be R56)

12(b)(6)"failure to state a claim upon which relief can be granted."Is the so what motion. Even if all true, so what, alleges nothing uponwhich can take action and grant relief. Here, one needs to allege a set offacts that would back up a legal conclusion allowing the P to win. If allfacts P avers are true, and if, on that basis, the P would win, then a 12(b)(6)

motion has to fail. 12(b)(6) can admit everything, but say that nothing incomplaint would allow a decision, as a matter of law, for the .


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1st time a complaint can be dismissed on the merits!only ? here is whether the complaint itself states a legally sufficient claimThis motion challenges the substantive merits of the complaint (unique). The

asserts that even if all the facts in the 's complaint were true, still wouldn'tbe entitled to relief under any legal theory!

"so what"

dismissed w/ prejudice on the merits,can't be refiled(FATAL!)P has to appeal to go on will probably have the opportunity to amend the complaintb/c this is fatal to , ct gives every benefit to complaint should not be dismissed

unless it appears beyond doubt that the can prove no facts that could entitlehim to relief. The court assumes that all allegations in's complaint are trueto decided this motion.

motion granted = case dismissed on meritsmotion denied = may answer complaint or suffer default judgment; may rely on

same grounds for R56 b/f trial, R50 at close of evidence, JNOV after theadverse verdict

ability to test a legal issue: get something dismissed in a lower ct w/ prejudice so thatyou can appeal to a higher ct and change some law.

12(c)counterpart to 12(b)(6); motion for judgment on the pleadings (if more than

pleadings, then R56). If

s answer fails to raise any kind of defense, the

filesfor the s rule 12 motion, 12(c) motion for judgment on pleadings. Asks thejudge to look at the pleadings and dismiss the action with prejudice. 12(c) - if fails to answer the s motion, then judge can dismiss (even if everything the says is true, I win). But, at very least, the can deny (and usually does). Thus,usually, one can defeat the 12(c) on pleadings.

Full R.12:(a) - must answer within 20 days; must reply to counterclaim within 20 days.(a)(3) - US govt has 60 days to answer a complaint or cross-claim(b)(1) - s/m/j (w/o prejudiceup to 12(b)(6). 12(b)(7) also w/o prejudice).(b)(2) - personal juris(b)(3) - improper venue(b)(4) - insufficiency of process

(b)(5) - insufficiency of service of process - (see R.4)(b)(6) - failure to state a claim upon which relief can be granted(b)(7) - failure to join a party under R.19 (nec. joinder)12(c) - judgment on the pleadings - ( s 12(b)(6))

-if matters outside pleadings are considered, treat it as SJ (R.56)12(f) - m2s - within 20 days after pleading is filed, can be struck if redundant, immaterial

impertinent, or scandalous12(h)(2) - can make a 12(b)(6), 12(b)(7), objection of failure to make a legal defense to a

claim can be made in any pleading or in a 12(c) motion or at trial. (can makeoutside of 20 days after complaint)

5. Molasky v. Garfinkle (HTF 565)Facts stockholders allege that they can't sell shares b/c of 's fraudulentmanipulation of the market and misrepresentation.s held stock of Ancorp NationalServices, Inc. for > 10 years. 3/15/73 trading of Ancorp halted on NYSE. 3/20/73Ancorp filed a petition for arrangement under Chapter XI of Bankruptcy Act. Causes ofAction: 1) against other defendants 10(b)(5) 1331 (easy one to understand). 2)against PMM, other defendants. 10(b)(5). 3) only PMM - gross negligence (state claim -pendent jurisdiction - tort) 1367.D iversity as well (1332). Fed claim in fed ct under1331, and negligence claim under 1367. Fed Act states that must be a defraudedseller (Birnbaum rule), which is not, so moved for 12(b)(6) and ct granted therebydismissing the fed claim w/ prejudice. Fed ct has POWER to hear negl claim (fed claimsurvived 12(b)(1) and CNOF), but ct dismisses negl claim as a matter of discretion under12(b)(1) w/o prejudice. can refile state claim in state ct. (There is Art.III power for


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1367 J, but dismissed b/c none of the discretionary factors weigh in favor of keeping thestate law claim. (might be an abuse of discretion for fed ct to adjudicate this claim.)(Gibbs))Issue- Does the have cause of action against the accounting firm under the statutewhich allows it to file cause of action when it is a defrauded purchaser or seller ofsecurities even though it has yet to sell such stock (because, as says, there no longer

is a market for such stock).Rule Holding The complaint did not aver cause of action under the statute prohibitingmanipulation in connection with the sale or purchase of stock, as the shareholders werenot sellers or buyers of stock even though they alleged that the bankruptcy filing of thecompany precluded them from selling the stock; and that dismissal of that count againstPMM also required dismissal of the related pendent count.Rationale Court has power to hear PMM claim under pendant jurisdiction (federal claimsurvived 12(b)(1) and CNOF) but dismisses under discertionary part of Gibbs, probablycuz so early in litigation. No discovery yet, etc. Let em all go to state court and go fromthere. Birnbaum states that a cause of action exists if one is a defrauded purchaser orseller of securities. attempted to show precedence in cases where the s were foundto have cause of action. However, review of such cases showed us that in each case,save for the following, the had been a defrauded purchaser or seller. In one case, the talked about an individual who was defrauded of the opportunity to become apurchaser. In that case, however, the court ruled that reprehensible conduct does notmean that a federal remedy is warranted. The remedy is to be found in state courts.As such, the court dismissed count 2. Count 3, by itself did not have federal jurisdiction.Rather, the filed count 3 as a pendent jurisdiction claim, attached to count 2. As thecourt denied count 2, the no longer had a cause of action against which to attachcount 3 (as the count 3 PMM was not listed on count 1). Therefore, count 3 was alsodismissed.Lawrence - Two different ways of testing sufficiency of complaints. Test the legalsufficiency of the complaint. Test the factual sufficiency of the complaint. Whats theone thing that the did not allege (that they were not forced buyer or seller). So, justsay that you are one! Youll at leaste get past 12(b)(6) that way, and up the settlementanty. But, if you lie, then will lose license. If try to overrule Birnbaum, first you present7th Circuit and 2nd Circuit decisions, and then argue why your way is better. WhenWeinfeld started p567 3rd with While the continued he is sharing with us histhoughts that Birnbaum is wrong. Open letter to court of appeals, begging toappeal. Why is a motion to dismiss 12(b)(6)viewed with disfavor, and...rarelygranted.? Wed rather see flawed cases go to trial, knowing....settlement (see below).Fear of false negatives is so great, that they are willing to live with false positives.(false positives = people who get settlements who dont deserve them). ( - plaintiffwho should win, wins) (negative - who shouldnt win, wins) If not allow dismissals,create a false positive (subtly). Create incentive for defendants who should prevail tosettle to avoid small chance of going to trial and losing big time. Looks like the decisionto grant is a balancing of false negatives and positives. In this case, they view withdisfavor, therefore, they would rather see people who are entitled to go to trial (thus,some people who dont deserve to go to trial, will get to trial - this is the price for keepingfalse negatives down low).

6. Lone Star v. Horman (M 87-92)Facts P (Lone Star) deposited waste on Horman (and Williamson) property w/permission of H&W. P had to pay $1 million in clean up and now wanted to sue H&Wfor contribution. P alleged certain equitable factors that would allow it to prevail underthe federal statute. Among such factors, that Ds thought were increasing value of landby accepting dumping, and that H&W mixed other materials with theirs. P filedcontribution claim and cost recovery claim under CERCLA and pendent state claim forcontribution. D filed 12(b)(6) and prevailed. P appealed.


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Issue- Does the amended complaint aver enough to withstand a 12(b)(6) motion (eveneverything the P says is true, would the P win on the merits?)?Rule (1) Motion under 12(b)(6) will only be granted if it appears beyond reasonabledoubt that P can prove no set of facts in support of his claim which would entitle him torelief. (2) When ruling on 12(b)(6), we construe all allegations as true, and make allreasonable inferences therefrom in favor of the non moving party (P).Holding Construing all of Lone Stars allegations as true, as Rule 12 (b) (6) requires,and making all reasonable inferences therefrom in favor of Lone Star, there exist enoughsubstantive points in the complaint that requires that the motion be dismissed.Rationale When motions to dismiss are both challenging a courts jurisidiction (12)(b)(1)and the existance of a federal cause of action (12) (b) (6), then the courts will view this asa direct attack on the merits of the s case (i.e., settle this as a 12 (b)(6) matter). Suchmotions are only dismissed if it is provable beyond a reasonable doubt that the cannot prove his claim. From review of the case, the court decided that the had providedample evidence to bar the from prevailing in its motion to dismiss. (p90). Both partiesfelt they were adding value for the past x years at no cost to them. They certainly werewilling partners.Lawrence - 2 purposes of 12(b)(6):1) screening device: weeds out legal conclusions and false +s before trial.2) creates notice requirement (complaint): tests adequacy of complaints notice: if thecomplaint is simply a legal conclusion, the cant answer back. Complaint must betimely, informative of stake and rights.False +: lenient complaint req false +; claimsthat should NOT have gone to trial get there and may induce to settle when theyshouldn't have; makes incur costs of trial when case should not have gone to ct.False -: strict complaint req false -; claims dismissed which should have been tried;allows the party in the wrong not to have to go to trial; prevents party in the right fromgetting due damages. Court more worried about false- here b/c at beginning of trial, thusdecide 12(b)(6) in light most favorable to .

7. Lone Star complaint (M 93-97) nothing of note.8. Albany Welfare v. Schreck (98-102)

Facts P alleges that D commissioner of Social Services refused to refer children to childcare center b/c of dislike for the Director. Said violated constitutional rights (DP, 1

stand

14th

amendment. Also brought pendant claims for state law violations.Issue- Did the P state a claim upon which relief could be granted? Did the complaintstate sufficient information upon which the D could reasonably reply, defend himself?Rule Dont need to prove at complaint stage, but need to allege. Need to allege, butnot prove, a connection between the facts and the legal claim. Mere conclusoryallegations are inadequate.Holding The court granted motion b/c 's complaint was conclusory and mereconclusory allegations are not enough to state a claim for relief. 's complaint says that is retaliating for 's political activity, and that this retaliation violated the 1st and 14thAmend. The complaint presents no facts to support the allegation that the refusalto refer children was in retaliation for Director's organizing activities. (need to allege

some facts like was known in the community to hate's political affiliations, etc.) (onlyreference is that said thought thatwas not qualified, not anything about political

activities.) Missing link of causality.Rationale The complaint presented no facts to support the allegation that the refusal torefer children was in retaliation for Ps organizing leftist activities. Complaint even saidthat D told P that D thought P not qualified to run day care center. Statement that refusalto refer children to the day care center was a relatiatory measure designed to prevent Pfrom exersicing 1

stamendment rights is conclusory. No facts alleged to provide any

grounds for believing the refusal was politically motivated or would tend to believe that Dswant to retaliate v. P.Lawrence - assertions response

1) could have placed kids agrees


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2) no other centers around agrees3) politically motivated disagree, not qualified

re: 3) - this is a conclusion, not a fact. Conclusions are not legally sufficient. What factsdoes she allege to support this allegation? She shows no evidence of retaliation, but hasshown sufficient info to support allegation for it . Dissent says all these reasons given by are smokescreen. Why does he want this to go to trial? (dissent requires less of the

than the majority does). Why is dissent requiring less? Theres enough smoke here forthe case to go to trial. Majority says no, look at it much narrower, and see no smoke.Dissent is willing to run a higher risk of false positives because he sees somethingcircumstantial here that tells him it should go to trial. Why do we test complaints(if itdoesnt say enough)? Want to parse out false positives. Also, if complaint too bare,how do we argue the complaint, prove it or disprove it? Defendants right to due processis not met w/o the ability to answer effectively to complaints. We could all bedefendants one day. Anyone could bring suit against us, frivilously, if the defendant hasno rights. Why do we allow to go to court? Dignity and participation values. 12(b)(6)is measured on this scale. Where do we set the bar for 12(b)(6)? 1) We balancefalse positives and negatives and 2) We must have some level of specificity in a

complaint in order to allow the to have a fair shot at defense (participation and dignityvalues). Motion to dismiss stronger here than in Lone Starbecause the link between thepolitical connection and the retaliatory action need to be alleged! Dont need to prove atcomplaint stage, but need to allege. Need to allege, but not prove, a connectionbetween the facts and the legal claim. Mere conclusory allegations are inadequate.E.g., cant just say He discrimminated. Must present facts to back up this legalconclusion, thus allowing D to defend himself.Look at complaints to see if they are either 12(b)(6) motions in terms of:sufficiency of law (legal sufficiency) - (Molasky - Birnbaum rule changed? JudgeWeinfeld open letter to 2nd circuit to change law) (But, we could turn around to see ifthere are sufficient facts to see if enough facts to go to trial given current law).sufficiency of facts - Are there enough facts to make out claim? Judge can dismiss a12(b)(6) w/o prejudice (which just says that they can file an amended complaint). Thatspecific motion is dismissed w/ prejudice. But they can amend and resubmit (as if a newcomplaint).

B. Burden of Production and Burden of Persuasion

Intro note (HTF 571-577) Lawrence - Burden of pleading is allocated based uponrights, weighing of false positives/negatives, etc. At pleading level, false negativeswould be really bad, so we allocate burden in this fashion. We want to allow some falsepositives to get to trial (so we ensure we dont have false negatives).

1. At trial level, the has opportunity to show proof, etc., so we can restrike the allocationof burden to change the mix of false positives and negatives. By time get to trial, stillworried about false negatives, because now has chance to prove case. We dont wanta situation where s should win, but cant.Burden of persuasion - tells us which party has the burden of proving that a certain thingdid or did not happen. Most cases, this is the .Burden of proof - tells us what standard of persuasiveness the party must satisfy. In civilcases, preponderance of the evidence. In criminal cases, beyond a reasonable doubt.Fraud, clear and convincing evidence.

Burden of production - tells us who has to produce the evidence. Should the produceevidence of s good or bad faith, or should the produce such evidence.

2. Gomez v. Toledo (HTF 577-580)Facts Gomez (P) agent Puerto Rico P.D. P tells supervisors that 2 other agentsfalsifying evidence for crim. case. P transferred out of position into desk jockey position.Legal Division of P.D. investigates P charges, finds to be true. P testified in case arisingout of evidence P alleged to be false. Was a defense witness (said that cops were bad).As a result of trial, crim. charges against P for illegally wire-tapping agents phones. Psuspended, then discharged w/o hearing. D.C. of P.R. found no probable cause and


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then P won on appeal as well. P sought review of discharge. After hearing, was orderedreinstated & back pay. P felt this process caused him anxiety, embarrassment and injuryto reputation. Brings civil rights action under 1983.Issue- In an action brought under 42 U.S.C. 1983 against a public official whoseposition might entitle him to immunity, must a plaintiff allege that the official has acted inbad faith in order to state a claim for relief or, alternatively, must the defendant pleadgood faith as an affirmative defense.Rule In 1983 action, the P has to aver two items noted in statute. P does not have toallege (prove) bad faith on part of public official. The public official (D) must prove goodfaith via affirmative defense.Holding In an action brought under 42 U.S.C. 1983, the official must plead goodfaith as an affirmative defense in order to be in a position to be granted immunity. The does not have to produce evidence of the s good or bad faith, but, rather, the mustprovide such evidence. Nor does the P have to raise the Q.I. defense issue, and badfaith requirement in his complaint at all. It is up to the D to raise the defense in hisanswer, and he also has the burden of production on that point.Rationale As remedial legislation, 1983 is construed generously to further its primarypurpose. In limitedsituations, USSC has held that public officers are immune from1983. This requires, though, a thorough review into the immunity historically given tothe official at common law and the underlying intent. Two allegations are required tobring 1983 action. 1) must allege one deprived a right and 2) one did so under actionof a statute. met both requirements [ 1) - violated rights to due process under 2) colorof P.R. law]. Qualified immunity is a defense. As such, the burden of pleading it restswith the . The must show his actions were lawful. The does not have theobligation to anticipate such a defense by saying that the was acting in bad faith.Whether immunity is established depends on facts within the knowledge and control ofthe defendant. The test includes determining if the official is acting sincerely and with abelief that he is doing right. There is no way that the could know this in advance. Toimpose the pleading burden on the would be unfair to the .Lawrence - 1983 requires one to allege: 1-Deprivation of rights - 14th amendment(state law). 2-Color of law (deprivation was under color of law). Affirmative defense - has to do something ( will show the judge why should win). has burden of proof in

proving an affirmative defense. Did allege bad faith? No. says he didnt have to.Why according to ? says he only has to show points 1&2 above. He says has toshow good faith. says, no, that has to show bad faith, as well as 1 & 2. SupremeCourt says that s approach is correct. Why? How could know the s intent. Also,statute says have to prove 1 and 2. What D says is affirmative defense, to be raised inanswer to the Ps complaint. Supreme Court says qualified immunity is an affirmativedefense. How does Supreme Court know that qualified immunity is an affirmativedefense? Rule 8 says if affirmative defense, then the defense has to prove it. But, is q.i.an affirmative defense? To look for answer (in general), first look at statute. Second,look at precedent. If no precedent or statute, where do we look? All things in the uniquepossession of the defendant shall be in the s case. All things not in the uniquepossession of the will be in the s case. The Supreme Courts reason for thisallocation of the burden of production was that the P s/n/b compelled to allege

facts that are peculiarly w/in the control of the D. (Contrast this result w/ Times v.Sullivan, where Court took opposite approach cuz the right being discussed was aconstitutional right, the 1

stamendment.) Gomez, by contrast, was a civil rights case under

1983. concur (Rehnquist): leaves open burden of persuasion re: defense of qualifiedimmunity. Can use Gomezto argue that should have burden of persuasion - hasknowledge & control of facts.B. of Pleading/Production under 1983:: 1) Const rt violated (here, 14th due process -no hearing or investigation)thus 1+2

make 's PF.2) COL (here, police officers and public officials).case; if


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doesn't answer, can get default judgment.: good faith (Under R 8c, has b. to plead affirmative defenses, so we look to the

statute -1983- to see if qualified immunity is an affirmative defense. The statuteis silent, so we look to precedent and find the b. on . So this Ct is really sayingthat since 's good/bad faith info is peculiarly w/in the control of , give the b.to plead it.).

Court doesn't want to mess w/'s civil rts, so put b. to plead good faith on .(not topersuade too). After this case, will arg that not only has b. to plead good faith, butalso has the b. to persuade it. This won't be true, though. has the b. to produce goodfaith at the pleading stage, but has the ultimate b. to persuade const rt violated, COL,and 's bad faith at trail. This is b/c we have now gone through discovery and shouldhave the evidence he was looking for.Affirmative Defense: I acted in good faith.Defensive Defense: I didnt act in bad faith.

3. Note on allocating elements of claim/defense (M.103-104)Burden of good faith is on D in Gomez and bad faith is on P in Sullivan? Why? We wantto favor party with the constitutional right on their side, especially First Amendment. InTimes context, who is defending the constitutional right? is making a constitutionalassertion, in Gomez, the is making the assertion. Public interest is served by free

press. In Times, false positive is freedom of press; in false negative, people getdefamed. This is balance, and it seems the public is better served by free press.Allocating burden = allocating error.NYTimes v. Sullivan (1964): US SU: BrennanFacts: NYT carried an ad that disparaged .Procedure: sued for libel (clear and convincing standard). moved for 12(b)(6) ongrounds that the contents of the paper, even if a little inaccurate, are protected by the 1stAmend (free press).Holding: In libel suits, has b. to produce, to show malice by to state a claim sufficientfor relief. If does not plead 's malice, claim will be dismissed under 12(b)(6). Here, Ctprefers to err in favor of NYT b/c doesnt want to chill 1st Amend rts.Court doesn't want to mess w/'s 1st Amend rts, so put malice b. on . ( to produce, orto persuade too?) See Anderson v. Liberty Lobby

4. Texas Dept. of Comm. v. Burdine (M105-111) Previously, talked pleadings; herewere talking trial!!

always has the b. of persuasion in Title VII cases.'s PFC for Title VII cases: (as established in McDonnell Douglas)

1)applied2)qualified for position3)didn't get position4)position remained open5)member of a protected group

Texas Dept. Com. Affairs v. Burdine (1981):Facts: , mployee, claimed that , public agency, refused to promote and thenfired b/c was a woman.Procedure: sued under Title VII (Civil Rts Act of 1964) for employment

discrimination.Holding: only has the b. to produce a non-discriminatory reason for firing after proves her PFC. The b. of persuasion stays w/at all times. Thus only the b. of

production switches to the .Burden allocation in Title VII cases:: b. to PROVEPFC by a preponderance of the evidence. (This is the 5 items noted

above).-(presumption that unlawfully discriminated, thus b. of production switches)

: b. of production shifts to D to show a legitimate, non-discrim reason for firing


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-all has to do is produce some evidence of legit, nondiscrim reason (less than apreponderance)

-if met b. of persuasion to : b. of persuasion by a preponderance of the evidence, either 1) indirectly or 2) directly:

1) 's legit reason not true reason for Ds actions, but rather was a pretext fordiscrimmination (unworthy of credence) (indirect)

2) intentionally discriminated(direct).So, if proves PFC and proffers a legit reason and the jury doesn't know who to

believe, wins.Lawrence Court of Appeals - Title VII has burden of proving preponderance ofevidence existance of legit nondiscrim reasons. (this shifted burden of persuasion to .)Supreme Court - Title VII has burden of production of some legit, nondiscrim reason then has burden of proving preponderance of evidence that reason offered by wasnot true reason, but rather a pretext for discrimination. If not show prima facie case,Rule 50(a) judgment as a matter of law to dismiss the case. Before 1991, called directedverdict. Since then, judgment as a matter of law. (because no rational jury could find for

the ). Trial version of 12(b)(6).At pleading stage; has to do what? brings a cause of action; alleges the five itemsnoted in Title VII. If not carry burden of pleading (if everything true, can you win?), files

12 (b) (6) and wins. either denies or sets forth affirmative allegations. If not put forthsufficient answer, then wins on 12(c). At this point, off to trial we go.At trial stage; (now not alleging things, but producing evidence). If does not provide

evidence to substantiate allegations, then files 50(a) and wins. If does not comeforward, wins as a matter of law (50(a)). At this point, the trier of fact makes decision(jury or judge). (assuming no rebut by). If jury believes prima facie case, and believes reasons, what result? Verdict for . If rebuttal evidence is presented, then presumptiondisappears. Now, the jury is asked, are you more likely persuaded or not? If yes, then wins not as matter of law, but as matter of fact. If fails to prove elements of primafacie case, loses as matter of law. If fails to meet his burden of production, winsas a matter of law.

5. Price Waterhouse v. Hopkins (M105-111) (1989): US SC: Brennan

Facts:

, female senior manager, denied promotion to partner.Procedure: sued under Title VII.Holding: ONLY A PLURALITY! (4 Justices), so use it to arg for but NOT LAW!: b. of proving PFC by a preponderance of the evidence

-b. of persuasion switches to : b. of persuasion of a legitimate reason

-if satisfied, b. of persuasion switches to ..If can't satisfy this, wins.: b. of persuasion of 's discriminatory actBrennan thinks this is in line w/ Burdine b/c he characterizes showing his legit reasonas an affirmative defense. Thus its not about switching b.s b/c do have the b. topersuade affirmative defenses. OConnor disagrees, says this is a switch in burden ofpersuasion, but says is justified in cases where P proves that employer knowingly gavesubstantial weight to an impermissible criterion (Lawrence calls this prima facie plus

case. P has proven PFC plus adduced even more. Here, she showed bypreponderance of evidence that discrim factors motivated employers decision, thus Dshould no longer be afforded presumption of good faith; thus appropriate to shift theburden and require employer to disprove the allegations.Lawrence - Court of Appeals - Once proves disrimination played any role inemployment decision, may avoid liab only through proving by clear and convincingevidence (burden of proof higher than preponderance) it would have made the decisionin absence of discrimination. Thus burden of persuasion had shifted to .Supreme Court - Supreme Court agreed as to burden of persuasion, but not by


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clear and convincing evidence, but by preponderance.Brennan and plurality said they followed Burdine: Said PW was matter of assertingaffirmative defense. Thus, it had to prove its affirmative defense, but the still retainedthe ultimate burden of persuasion as to discrimination.OConnor concur: Acknowledged PW was change in Burdine, justified by public policyneeds of Title VII and precedent. Said burden of persuasion did shift.

Kennedy dissent: Proof of discrim behavior not warrant departure from Burdine.

hasevery incentive to present best case to avoid liability (to overcome prima facie case ofliability) in Burdine, so no need to change.

6. St. Marys v. Hicks (581-590)

Facts , black man, fired from prison guard job. Says discriminated on basis of 'srace. Brings action under Title VII.Issue- In a suit against an employer alleging intentional racial discrimination in violation ofTitle VII of the Civil Rights Act of 1964, does the trier of facts rejection of the employersasserted reasons for its actions mandate a finding for the plaintiff?Rule Holding The trier of facts rejection of the employers asserted reasons for its actionsdoes not mandate a finding for the plaintiff as a matter of law. The burden of persuasionis on the plaintiff to prove that he was discriminated against, not on the defendant toprove that his alleged reasons for acting as he did were not discriminatory. (Specifically,the indirect prong of the McDonnell/Burdine process is eliminated as a matter of law.)Rationale The Court of Appeals said that a discredited statement is as good as nostatement at all and, therefore, as a matter of law, one must find for . The Courtdisagrees. By producing evidence, the does place itself in a better position. Thedetermination that a has met his burden of production can involve no credibilityassessment as the determination necessarily precedesthe credibility assessment. Once

the has produced evidence, the trier of fact proceeds to decide the ultimate question;whether has proven that the intentionally discriminated against him because of hisrace.

When the trier of facts looks at the prima facie case and the s response, he may decideto reject the s explanations and find in favor of the . As such, the trier of fact may find

in favor of the

, but does not, as Court of Appeals held, have to find in favor of

assuch a rule shifts the burden of proof to the , which is counter to the repeatedadmonition of the court that such burden stays with the .

Effectively, the majority has done away with the indirect method of defeating the sresponse to the prima facie case (see below). As such, if a does provide anyadmissable evidence in response to a presentation of a prima facie case, the burden ofpersuasion remains with the and he must prove that discriminatory reasoning morelikely influenced the s actions than did what the presented.

Note that this places the burden of persuasion on the , similar to the NY Times

situation. In that case, (NY Times) felt its constitutional rights would be infringed

with an adverse result. In Gomez, the burden of persuasion was on the . In that

case, the felt his constitutional rights were being infringed. Whats the story inthis case? Perhaps, the constitutional claim is a trump card. I.e., the rule is that burdenof persuasion is on the unless the s constitutional rights are in question, in which therule is the burden of persuasion is on the other party (party not claiming infringement).

In this case, we could have false negatives moreso than false positives as people whoshould win might not win (Hicks, for example).

Lawrence - At district court level:


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produced prima facie case. produced evidence, which trier of fact did not believe. did not persuade that it was racial discrimination, so wins (defeats SJ motion).Court of Appeals:Reverses, as case disproven, as matter of law, the presumption still in case and must win.Supreme Court:

Scalia reverses, and agrees with district court. Scalia says purpose of prima facie case isto screen out cases that shouldnt go to trial. It tells you you can get to trial.

Scalia follows the Title VII b. allocation created by McDonell Douglas:Pleadings:: allege PFC, if not12(b)(6): answer w/ legit reason, if reason taken as true can't overcome 's PFC as a matter of

law12(c) (rare)Trial:: b. to prove PFC by a preponderance, if not R50

-this produces the presumptionthat discriminated; thus b. of production switches to to rebut this presumption

-jury may find for if it believes that PFC proves discrimination by a preponderance,

if not wins: b. of production of evidenceof a legit reason ( no proof needed)

-even if reason is wrong, satisfies b. if reason, as believed by jury, would be legit-this is to rebut the presumption-if notR50

: b. of persuasion always w/ (even if 's reason is false) to prove that intentionallydiscriminated against ; just showing that 's reason is a lie is NOT enough!-If convincingly rebuts 's proffered reason, jury is permitted to infer discrimination,

but not compelled to. still has to prove discrimination.* will use a motion for judgment on the pleadings, 12(c) when the complaint states agood claim that the 's answer confesses an affirmative defense, when such defense isinsufficient as a matter of law.Dissent: use as arg to win if 's reason is a lie! Says under Scalia, D has incentive to

lie!: b. to prove PFC; presumption of 's discrimination: b. to produce legit reason: b. of persuasion may be met by either:

1)directly persuading that discriminatory reason motivated more likely than not2)indirectly persuade by showing 's proffered reason is unworthy

-here, ct must find for if proves PFC and lied.Scalia v. Souter on Hicks: Souter wants Hicks to win on a directed verdict withoutallowing the matter to go to jury under assumption that there can only be one verdict.Scalia wants the matter to go to jury. As such, it would, on the surface, not seem to be abig deal, as one would expect that 99 of 100 times the jury would rule in favor of Hicks(assuming that all thats given is prima facie case, plus then the s production ofevidence). However, this is a big deal as this then allows the appeals court, assuming

jury sided w/, to construe Hicks to say they are allowed to overturn as not enoughevidence to convict if all that is presented at trial is the prima facie, production of defenseevidence, plus then rebuttal of , w/o bringing new evidence to light. Some circuitstoday are saying that they have the right to overturn, others are saying they dont.There will need to be a Hicks Jr. to resolve this at the Supreme Courtlevel.


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In a prima facie case, if overcomes presumption by meeting his burden of production, can still win even though the presumption is out the window. The can still win on theoverall merits of the case, as decided by the jury.

7. Wrap-up:Burdens - Pleading and Trial

burden of persuasion: prove it happenedburden of proof: measured by std - i.e. preponderance, clear and convincing

BURDENS AT PLEADING STAGE

must ALLEGE PFC:sufficient allegations, if proven true allow to win!

Allegations must detail facts to support a legal conclusion;cant simply be legally conclusory statements

-If yes, meets b. -If no, doesn't meet b.-: answers; makes allegations - moves for 12(b)(6)+ denials and Aff. Def (R8(c)). -case ends here on merits! / \ (judge can dismiss 12(b)(6)

/ \ w/o prejudice to allow for amnd. comp.)/ \

-If yes, sufficient -If no, does not allege sufficient denial of factsallegations + denials - mover for 12(c) ( can use 12(c) too)if proven at trial allow -case ends here

to win. -If does not answer, can move for default judgment!-case goes forward

BURDENS AT TRIAL STAGE

's production b. is to PROVE a PFC (in order for judge to send case to jury)

-If yes, meets b. -If no, doesn't prove PFC

- has b. of production refutes 's evidence and offers - moves to dismiss under R50new evidence (In Title VII- gives legit reason) (trial equivalent of 12(b)(6);

| means that given what has| proven, no rational jury could| find for P).

-If doesn't produce anything, still has the ultimate

b. of persuasion.-Legally, can still win; but in the real world, if doesn't

produce anything, the judge will instruct that has the b.to persuade by preponderance (more likely than not ->50%),and jury would probably find for .

-Always in 's best interest to produce something!

If neither party has proven anything to the jury's satisfaction, the party carrying the b. ofpersuasion loses! (usually ).

C. Pleadings under the Federal Rules and Rules of Professional responsibility 1. Rule 11

1. Rule 11 - generally has to be well founded in fact (b3) and law.a. Rule 11 requires:

a. Signature - address and phone numberb. Representations to Court - Pleading, written motion,


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or other paper is :1. not presented for improper purposes2. supported by law or a nonfrivolous extension

of existing law.3. supported by evidence or likely will be.4. , if denials, supported based on evidence or

reasonably based on lack of information.c. Sanctions - If b. violated, court can sanction any attorney or firm.

Court can also chose to award court costs and attorney fees toprevailing party.1. Initiated by:

a. Motion orb. Court initiative.

2. Nature of sanctions, limitations - Meant to beharsh enough to deter behavior.a. Monetary sanctions cant be awarded against

represented party for violating (b)(2).b. Monetary sanctions not awarded on court initiative

unless court orders show of cause beforevoluntary dismissal or settlement of claims.

3. Order - Court describe bad conduct and its logicd. Inapplicability to discovery - Rule does not apply to

discovery and other issues covered in rules 26&37.2. Rule 11 - 1983 & 1993 amendments

1938 1983 1993a. Pleadings Pleadings, motions, Same + safe

other papers harborb. attorney attorney & party atty, party,

responsible responsible firm rspnsblec. subjective objective std: legal/factual

standard reasonable atty basis,imprprpurpose

may sanction shall sanction may sanction

discvry motions-yes discvry mts-nod. no atty fees atty fees if snctnd fees for deter

reason, fee tocourt

3. Readings of advisory committee notes, 1983 & 1993a. 1983 - 1938 Rule was not harsh enough to deter bad behavior.

Also was confusion as to what was required, so courts werereluctant to impose sanctions. Now needed to do some prefilinginquiry into facts and law.

b. 1993 - Revision broadens scope of obligation to act properly, butplaces constraints on sanctions. No sanctions if, after party findsout that position false, party no longer advances that position (upto other party to discover it is no longer relevant). Rule was

equalized upon s and s. So made it tougher for s tofrivilously file this motion. Court can strike papers, issueadmonitions or reprimands or censures, require attendseminars,fines or further disciplinary actins. Rule 11 fines shoulddeter, not compensate so fines usually pd. to court,not otherparty. Safe Harbor created as motion for sanction follows Rule11 motion. This allows other party to withdraw, etc., beforesanctions are opined upon by judge.

4. Rule 11 1993 amendments -changes v. 1983-casebooka. Safe Harbor - after filing of Rule 11 motion, movee has 21 days


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to withdraw the offending representation.b. Continuing duty - If find out later representation no good, can nolonger advocate it.c. Seek supporting evidence - Can file complaint even if you only

expect to find corroborative evidence later (must be likely).d. Possibly less severe sanctions - previously awarded costs to

other party, now only have to sanction to point to deter badactivity.

e. Firms liable for sanctions (only change to expand Rule 11).f. Inapplicable to discovery -covered in Rules 26&37.g. may sanction as opposed to shall sanctionh. fee to court, not to atty (usually)

5. 1993 was to reduce explosion of litigation (Judicial economy). Attemptby rule to return to lawyerly civility.

6. Lawrence --lawyer must sign complaint!!!-applies to pleadings, motions, and other papers.-does NOT apply to Discovery!-At least in fed suits, it is the lawyer's job to make sure that a pleading,etc. is not frivolous, and not issued to harassor delayor lit costs

for the adversary. R11 imposes this req, and provides that a lawyer whofails in this duty may be finedor otherwise sanctioned.-Also, all allegations in the pleading, etc. have evidentiary support, or arelikely to have evidentiary support after a reasonable opportunity fordiscovery--and these are specifically identifiedas such.-PURPOSE: to deter lawyers for s from asserting claims that have nobasis in law or fact (frivolous)-Rule 11 1993 changes:

Will create less Rule 11 motions (could create more falsenegatives as some who wish to file, wont).

1) Good faith argument for changing current lawbecame may impose sanctions.2) Firms can be held liable.

3) shall impose sanctions became may imposesanctions

4) Other party not guaranteed legal fees.5) Both parties could be fined (party bringing suit could

also be fined).

R11 requires:1)FACTUAL BASIS:-objective standardwhat lawyer should have known after an inquiryreasonable under the circumstances (subj/ pure empty head "godfaith" standard not enough anymore)-reasonable inquiry

lawyer MUST do this

differ from case to case: if the claim is one that should logicallybe supported by evidence already available to , lawyer must atleast ? client about it; if the only likely evidence supporting theclaim lies w/ the , 's lawyer can probably sign complaint w/odetailed inquiry on theory that lawyer can get the evidenceduring discovery (have to "specifically identify" theseallegations that you can't prove yet, but will in the future).

-make sure you don't help client misrepresent the facts!-bad faith not required to violate R11, just failing the objective standard isenough!


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-if no factual basisviolation2) LEGAL BASIS:-b. on the lawyer to make a legal inquiry (lawyers belief not enoughanymore)-the claim must be warranted by existing law or by nonfrivolous arg forthe extension, modification, or reversal of existing law or theestablishment of new law-if no legal basisviolation3) IMPROPER PURPOSE:-lawyer must do an objective evaluation of what lawyer's purpose is(what lawyer thinks to be the purpose not enough anymore)-purpose CANNOT be to harass or cause unnecessary delay or litcosts unnecessarily*Safe Harborcan escape sanction by withdrawing the allegation, etc.W/in 21 days of being served w/ the R11 motion (then sanction can't begiven no matter what!)*Sanctions-limited to what is sufficient to deter repetition by thatlawyer or other lawyers similarly situated; not intended to compensate!-monetary: fine, probably paid to ct (thus less initiative for to move forR11 b/c gets no $) (only paid to other party is necessary for deterrence)-non-monetary: censuring the offending lawyer; striking the offendingpleading-discretionary: if ct finds a R11 violation, it MAY impose sanctions-law firms also liable for sanctions-signing party may be liable for sanction, except for frivolous legal args*Continuing DutyIn situations where the lawyer does a reasonableinquiry b/f filing, but later learns that the pleading is not meritorious, thelawyer CANNOT present or advocate it in ctif lawyer does = violation,even though it was ok b/f.*Even if ct didn't have SMJ, or voluntarily dismissed the complaint, thecourt can still levy R11 sanctions! Ct has power from ArtIII thattranscends SMJ, etc.*Frivolous complaints violate R11. A frivolous complaint is one not

grounded in fact and law. If there is no factual basis, but there is a legalbasis and a proper purposeR11 violation. If there is no legal basis, butthere is a factual basis and a proper purposeR11 violation. If there isboth a factual and legal basis (thus non-frivolous), but an improperpurpose, NO R11 violation.*Filing a nonfrivolous complaint (legal and factual) will not warrant a R11violation even if it is partially filed for an improper purpose.

1993What is key in 1993 re: factual basis? Requirements qualified. Explicit division between

allegations and denials - 11(b)(3) and (4).

What if find something out during life of suit? (clients brakes not working well at the time)Dont have to amend pleading, but can no longer continue with that allegation in

court.

1938 1983 1993Factual Basis Good faith/ Reasonable inquiry 11(b)(3) - Allegation

subjective objective 11(b)(4) - denialsStill objective

Legal Basis Reasonable basis orgood faith basis formodification/reversalof existing law (1)


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Proper Purpose

(1)-hypo, Molasky 1983, we all know that Birnbaum is law, therefore no legal basis,therefore 11 can hold. Answer: society changes, law has to change, thereforewe need to have the ability to file suit to change the law.

We want parties to look at allegations of the other side, your job is to find problems onthe other side. If they find a problem, they have no affirmative obligation to do your work.

How would world look if parties not forced to do their own work in a lawsuit.

Inquisitorial system - Europe - asks court to get evidence. Ours has two parties do thiswork.

What would we want to know about 2nd circuit practice to defend a Rule 11 motion in acase where Molasky is affirmed by 2-1 rule. Now someone wants to file a new case inthe 2nd circuit. How defend rule 11 motion against that complaint and what do we needto know about the circuits practices? What if a panel of 3 can overrule another panel of 3and only an en banc makes it non-overturnable? Then I could ask for change asour precedent was en banc.

Basis how Rule 11 moved from 1983 to 1993Legal basis - believed law to be to should have known law to beFactual basis - knew to should have knownProper purpose - subjective (what was attys intent) to objective (whats on

complaint)Legal and factual basis is measured on reasonable lawyer. Why not the same bypurpose?

What was good about safe harbor? Judicial economy.What was bad about safe harbor? People might not fight to change law. Made sanctions

harder to get, so increased number of frivilous suits (as have21 days to withdraw).

1993 rule:Reduce collateral litigation and deter frivilous pleadings, motions, from making it

through court, even if the non-moving party (innocent party) is going to have tomake motion on their own and never get compensated for it.

1983 goal Force party to internalize costs and make other party whole.1993 goal Get pleading out of the case; secondary - party to internalize costs and, asfinal fallback, designed to make party whole (latter of which was primary goal of 1983 -safe harbor, shall v. may, costs to atty v. costs to court).

2. Sussman v. Bank of Israel (M 117-127)Facts s founders, etc., of NAB, Israeli bank. NAB folded after years of fraud,embezzlement, mismanagement by sr. mgmt. BOI paid depositors and obtainedappointment of Receiver of the state of Israel to liquidate NABs assets. xxxxxxxs hire Washington lawyer Lewin to look into suits. Lewin drafted complaint to be filed inNY naming BOI, Ministry, BOI officials & NY Israeli bank. To be filed complaint assertedsame as cross-complaint in Israel. Also alleged BOIs filing of suit was defensive

measure to force s to bear NAB costs of BOIs failure to rectify fraud. Sought $17million. Lewin sent draft complaint to many, including state of Israel asking to talk andhead off suits. Letter said, if not talk w/in 10 days, will file suit in NY. Lets not give badpublicity to state of Israel, lets not damage foreign investment in Israel.Israel not willing to settle. Lewin filed complaint in NY. BOI, in lieu of answer, moved todismiss on many grounds, including forum non conveniens. D.C. dismissed on fnc w/oprejudice (not address other issues). BOI then moved for award of sanctions pursuant toRule 11, arguing (a) lawsuit instituted for improper reason and (b) complaint hadnumerous arguments lacking factual and legal basis. D.C. granted motion, citing that thecomplaint had, in part, been filed for an improper purpose. Finded $50k. This based


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solely on argument (a). D.C. said Lewin letters were extortion letters (negative publicity).Said filing of complaint in doubtful venue for express purpose of asking for compromise isstark example of improper and oppresive litigation. D.C. said amount was not tocompensate s for expenses, but to deter similar filings. Lewin appealed Rule 11 ruling.Issue- Is a s subjective intent sanctionable under Rule 11 if the objective intent asmanifest in the complaint is well grounded in law and fact?

Rule (1) In order to warrant an award of Rule 11 sanctions on the basis that a complaintisnt well grounded in fact or law, it must be patently clear that a claim has absolutely nochance of success. (2) Rule 11 sanctions may be imposed only for an abusive pleading,motion or other paper. Prelitigatoin letters dont fall within the scope of the Rule. (3) If areasonably clear legal justification can be shown for the filing of the paper in question, noimproper purpose can be found and sanctions are inappropriate.Holding The s filing was objectively adequately grounded in fact and law to obviate asanction under Rule 11. The subjective intent of a party, whether or not improper, has nobearing on Rule 11. From Westlaw: Held that (1) complaint was not frivolous, (2) awardof sanctions could not be sustained on ground that directors had selected foruminconvenient to Israeli bank and agencies, (3) directors could not be sanctioned forhaving filed nonfrivolous complaint, based upon allegedly improper purpose of compellingsettlement of parallel action being brought in Israel, (4) filing of lawsuit to compelsettlement was not an improper purpose, (5) sanctions could not be based upon courtsinherent power, and (6) court had properly decided sanctions could not be based onvexatious multiplication of litigation.Rationale Well grounded in fact and law (i.e., nonfrivilous)When viewing the complaint objectively, as required with post 1982 Rule 11, it must bepatently clear that a claim has absolutely no chance of success. The D.C. declined tofind that the complaints were not well grounded. Moreover the D.C. took steps thatindicated it expected the to pursue such allegations in the Israeli action (dismissing w/oprejudice and asking the s to ensure would not be detained in Israel). Thus, claimdeemed nonfrivilous. Motion cant be sustained on challenge that choice of venue wasselected in order to be inconvenient to . The D.C. did find that the choice was highlydoubtful but did not say it was improper. Moreover, the did allege that used a NYbranch of Israeli bank in its manipulations.Improper Purpose as SanctionableTo the issue of whether a court can impose sanctions when it finds that the complaint hadbeen filed, in part, for an improper purpose: If a reasonably clear legal justification canbe shown for the filing of the paper in question, no improper purpose can be found andsanctions are inappropirate. The court is not to delve into the attorneys subjective intentto decide on this issue. Subjective evidence of the signers purpose is to bedisregarded. Precedent tells us that complaints are not filed for an improper purpose ifthey are regarded as nonfrivilous. The court not only did not find the claims to beobjectively unreasonable but imposed restrictions on defendants in order to allow s tohave their claims adjudicated on the merits. A party shouldnt be penalized or deterredfrom seeking and obtaining relief simply because one of his multiple reasons may havebeen improper.Was finding as improper correct?

Rule 11 is not meant to safeguard s from public criticism that may result from theassertion of nonfrivilous claims. Warnings by a party of its intent to assert nonfrivolousclaims are not improper. Court also found that D.C.s use of prelitigation papers was notappropriate. Not unusual for s to try to settle before suing. This letter was used forsuch purpose. Such letters do not suffice to show an improper purpose if nonfrivilouslitigation is eventually commenced.Lawrence - Appellate Review: abuse of discretion standard (if based on an erroneousview of the law or facts). Dist ct decision was based on an erroneous view of the law andfacts, thus App Ct reversedNO R11 violation. Since complaint had both a factual and


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legal basis, it was Not frivolous; and just b/c one of its purposes may have been improperdoesn't mean there was a R11 violation. (but may be a violation of the ABA rules or theCode for Professional Conduct!)*So, arg that improper purpose is not an independent prong so that not guilty of R11violation.*And, arg that improper purpose is an independent prong so that is guilty of R11

violation even though

had factual and legal basis for filing complaint.*If you had factual and legal basis, could a completely improper purpose alone = R11violation???This is not case about constitutional authority, but about statutory authority.(Diff between that which is constitutionally mandated and that which is constitutionally

authorized - from early day notes).About whether or not executive branch can act w/o legislative authority in an area where

legislative authority could have been granted.What is the relief the govt wants? equitable relief (want to make sure the patients aretreated fairly. Probably means enforecement power to some fed govt. body to go into MDonce in a while to audit, ensure people treated well, maybe even get some fed people into run the place). Want court of equity relief of injunction.Exceptions to statutory requirement which allow suits (2-5 are just like private individual):

1) - If the public interest is in imminent danger.2) - Govt. property (govt. as property owner can sue just as a private concern

can).3) - Native Americans (right as a guardian to sue on behalf of its guardee)4) - power over interstate commerce5) - Can sue for breach of contract

Why not sue under Native Americans (extending to all guardians)? Slippery slope.Would probably go beyond constitutional authority. Obviate peoples rights of privacy.Whenever we read 2-5 broadly, we must realize were outside bounds of statutory

authority and have to tread lightly. Wouldnt just expand govts rights to act, butalso executive branchs rights to act.

Lets group into 3.1) statutory2) 3,4,5 - Govt perceived as priate individual.

3) Public interest

3. Note on Rule 11 (HTF 656-660) n/a4. ABA Model Rules of Pro.Conduct & ABA Code of Pro. Resp. (R 3.1-3.3; DR7-101,102)

Lawyer Rules:-Cannon 7: Rule 7-102: Code of Professional Conduct

-SUBJECTIVE standard-lawyer cannot file suit when knows it is malicious-lawyer has the responsibility to find out client's intentions; cannot bring suit

merely to harass or maliciously injure another (no proper purpose)-ABA model rules

-OBJECTIVE standard

-can't bring claim when primary purpose is to harass-came after Cannon 7thus moving from subjective to objective-here, the objective = reasonableness standard (harder standard than the pure

empty head)Even if not sanctioned under Rule 11, c/b sanctioned here.

D. The Government as a Plaintiff 1. In re Debs (M 128-132)

Facts The US Gvt bringing suit for injunctive relief against ,Debs-union leader, in aneffort to compel him to end rail strike which is preventing mail service and crippling theeconomy.


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Issue- (1) Does the Federal Governments relationship to interstate commerce and thetransportation of the mail authorize it to directly interfere with ones desire to obstructsuch commerce or mail? (2) If such authority exists, as such authority implies bothpower and duty, does a court of equity have jurisdiction to issue an injunction in the aid ofthe governments performance of such duty?Rule 1) public interest at large (Here - public interest in mail; national emergency) 2)within ambit of federal authority - from enumerated powers - limited but sovereign(Here, interstate commerce).Holding Even w/o statutory authorization, the US Gvt is authorized to relieve anyobstruction of interstate commerce and the transportation of the mails. The Federalgovernment does have power and duty to ensure that interstate commerce and the mailsystem are protected from inappropriate hinderances. While the government does haveright to forcibly remove such hindrances, the government also has the right to invoke thepowers of the courts to remove or restrain such hindrances.Debs says you have to have (1) constitutional authority (in this case, commerce clause)and (2) expansive effect.Rationale Issue 1: The Federal government has the duty of direction, supervision,control and management of the interstate commerce and mails systems, as noted inArticle I 8 (3) of the Constitution. The government has the duty to ensure such systemsare free from unlawful obstructions. The government has the right to enforce actions

against unlawful obstructions via force or action in courts (latter granted under Article III2 (3).Issue 2: For matter of public policy, the nation is better served if such disputes can beresolved in the courts rather than by force. We should not cause individuals to have tobe in danger of harm (citizens of members of militia, who are, of course, also citizens)unless necessary. Thus, the right of force does not exclude the right to use of courts.Equity only interferes with the protection of property. The Government has a propertyinterest in the mails. As such, the Government can bring action in equity to guard suchrights. The carriage of mail is considered carriage of property under Articles V and XIV.Interests dont have to be pecuniary in order to apply for rights to judicial process, but,rather, the rights can be considered the obligation to promote the interest of all.Lawrence - Cts reasoning is that the fed gvt has authority over interstate commerceunder ArtI,8, thus the US Gvt has the power to enforce the const (ArtI,8) by force (bring

in the nat'l armed forces); so US Gvt should also be able to use the ct system as a morecivilized means to the same ends (instead of unleashing nat'l forces). Here, US Gvt hadstanding to sue b/c this was a National Emergency, and was:

-violating a constitutional provision (Art.I,8); and-hurting the public at large by obstructing interstate commerce and the mail

So, in Debs,1)Const gives fed gvt authority (Art.I,8)2)Congress is silent (has not given or denied fed'l gvt authority)3)Thus, Exec can go forward b/c in the absence of Congressional denial, the

exec has authority under Const.2. USA v. Brand Jewelers (M 133-138)

Facts Brand would grant credit to people not worthy thereof and then sell them jewelryPeople would default and Brand would sue them, but not serve them with notice Brand

would be granted default judgment and be granted the opportunity to goagainst theirassets, garnish wages, etc. USA brought suit to enjoin Brand from this practice. moved for 12(b)(6) dismissal.Issue- Does the USA have authority to bring this action against the ?Rule US can sue if a) acting as a private party, b) statutory authority or, failing those,then the Debs factors (constitutional authority and widespread public harm).Holding Due to the character and extent of alleged wrongdoings, as well as the burdenupon interstate commerce, the USA does have authority to bring this action. Moreover,this authority is granted as the USA has the right to bring an action to protect citizensrights against the denial of property without due process under the 14th amendment.


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Rationale To the s arguments on direct v. indirect and physical v. non-physicaldanger, the court said the gist of Debs was not the above, but rather an obstruction ofbroad impact, sufficient in its dimensions to be thought public rather than private. Also, todefeat that argument, says that times change and the operations of Constitutionalprovisions must be flexible enough to move with the times. Court says govt not take toomuch power, especially as it is peaceably submitting to the whims of the court.

Lawrence - The ct expands the holding in Debs and allows US Gvt to sue! 2 factors ctgives that allow US to sue are: 1)interference w/ interstate commerce (not real reason;use it to fall under Debs directly).

2) widespread deprivations of a const rt -loss of propertyw/o due process (14th)-real reason US can sue here (stretch:numerous private injuries = public injury)

So, here, there is no statutory authority and US is not acting as a private person, so thecourt must use Debs to allow US to sue. Ct reads Debs v-expansively and comes up w/:

1)const authority14th Amend (denied property w/o due process) (but, 14th

says nothing about fed authority; Congress has the rt to grant powerhere but hasn'tct really stretched Debs to find fed authority wherethere's none)

2)public injurywidespread deprivation of property through fraud (whereas Debs

sees public injury as a nat'l emergency)3. USA v. Solomon (M 139-147)

Facts Rosewood State Hospital in MD treatment and care to metally retarded persons.Many involuntarily confined. USA brought suit as above. filed for dismissal on groundsthat US lacked authority and standing to bring suit. D.C. granted motion.Issue- Does the USA or the Attorney General have the autho

civil procedure class notes

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