Syllabus: Civil Procedure II, §LS-2 Spring 2010

Professor Alan Ramo Class Meeting Times: M, W 1:15-2:30 Room 3208

Office Hours: By Appointment (Rm 3333, 3rd Fl., Main Bldg.) Phone: 442-6654

Email: aramo@ggu.edu

Introduction Welcome to Civil Procedure II. In this class, there is a greater emphasis on understanding and applying the Federal Rules of Civil Procedure than there was in Civ. Pro. I. Case law continues to be important in applying these rules to challenging fact situations, but there is no substitute for reading the rules and understanding the text. Equally important is to issue-spot fact situations to determine how to apply the rules. Civ. Pro. II can often seem quite technical, but the power in knowing the rules and being able to apply them will serve you well as you contemplate and carry out litigation. It is also a bar tested subject, so it is important that you begin in this class the process of mastering these rules. Teaching Philosophy I believe students are as important as teachers in fostering a learning environment. I will engage you regarding the rules and cases because I believe you learn the meaning of the rules and how to issue-spot as you try to speak to the cases and the rules in class, as well as listening as your classmates do the same. There will be times I lecture and state the rules, but I will also ask you to state the rules and holdings of cases, as I believe that process deepens your ability to learn and understand the rules. Mutual respect, between teacher and student, and between fellow students, is critical for a learning environment. I would rather you participate and be wrong, then stay quiet. No one will be humiliated for not knowing an answer or saying an incorrect answer. Listening and preparation is the student’s responsibility and the best way to learn. Student participation also lets me know what is being understood and what is not clear. It’s also more fun, so I urge you to participate whenever you have a question and feel comfortable doing so. Anything said in class may be on the exam so I urge you to use your laptop to take notes, not to search the web. I realize that much learning takes place after class, when you digest what was said, review your notes and review the PowerPoint slides I will post on our class website. Also, often I will be asked something in class that will raise a new issue or one I want to research. Unfortunately the law keeps changing, even for me. As a result, I often post responses to questions during class or after class on the website. Those responses are as important to read as your text, and may provide a basis for questions on the examination.

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Teaching Assistants I will be using a number of teaching assistants who will be working with you in smaller groups. The TAs will go over written assignments and be able to discuss with you any of the cases and problem exercises I use, as well as review the quizzes. Texts We will use the following materials as text:

1. Friendenthal, Miller, Sexton and Hershkoff, CIVIL PROCEDURE (10th Edition) [Casebook]

2. Kane, Levine, Civil Procedure in California, Supplemental Materials: State and Federal 2009 Edition ISBN 9780314204479

3. Supplemental Course Reader (You can pick this up in the Law Faculty Center, 2nd Floor)

For those interested in additional reference materials, I recommend the following books which will be on reserve throughout the semester:

1. Richard D. Freer, INTRODUCTION TO CIVIL PROCEDURE. A straightforward presentation of material, very helpful. Very readable with good examples and charts.

2. Joseph Glannon, CIVIL PROCEDURE: EXAMPLES & EXPLANATIONS. A helpful study guide

with lots of useful illustrations, sample questions, and good explanations. 3. Friendenthal, Kane & Miller, CIVIL PROCEDURE. This is a basic hornbook by the authors

of our casebook which provides a good overview of the subjects we cover in class, with some limited background and policy discussion.

4. Schwarzer, Tashima, & Wagstaffe, FEDERAL CIVIL PROCEDURE BEFORE TRIAL. This is a

two-volume treatise oriented toward practitioners that explains the rules very clearly, is very practical, and has lots of examples.

I have also created a web page for this course through Westlaw’s “TWEN” program, which hopefully many of have used last semester (http://lawschool.westlaw.com/TWEN). I will post various items on the web page during the course of the semester, including copies of all power point slides I show in class and other supplemental materials. When you register on the web page, you will also become part of a class email list that I will use to post announcements about the class and answer questions from students. You will be held responsible for all information that I send to the class via this email list, so it is essential that you sign up on the course webpage. To sign up, you will need your Westlaw account information; if you do not have a Westlaw account or have lost your password, please see Maryanne Gerber in the Law Library, who will provide you with one (442-6520, mgerber@ggu.edu). To access the web page, go to the

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Westlaw homepage for law students (lawschool.westlaw.com), click the link on the top menu bar labeled “TWEN,” enter your Westlaw password in the left-hand frame, and click on “go.” In the right hand upper quadrant, click on “drop/add a course.” Select this course, which is “Civil Procedure II, Ramo,” by putting a checkmark in the box. Scroll to the bottom of the page and click on submit. You will now be looking at the TWEN Homepage; click on the course title to access the information. Course Requirements In accordance with Law School policy, students are required to attend all classes and be prepared to participate in class discussion. To implement this policy, at the start of each class, an attendance sheet will be passed around, and you are each required to sign in to verify your attendance. If you are unable to attend class because of illness or some other emergency, you should notify me in advance of class. If you are either absent without sufficient excuse or prior approval or unprepared for four or more classes, your grade may be lowered by one letter grade (i.e. lowered from a B to a B-). Once class begins, please do not walk in and out unless it is an absolute necessity to do so. Throughout the semester we will have problems/practice exercises that I will ask you to prepare for class. These exercises will be the vehicle for discussing many of the assigned cases and readings. A few of the problem exercises will require written submissions, while most of the others will require you to prepare an answer for class discussion. The written exercises must be turned in to Professor Ramo or the TA by the date listed in the assignment. They will be graded “Pass” or “Incomplete;” those graded “Incomplete” will be returned to you, and must be resubmitted within a week. Students who do not complete an assignment may have their grade reduced. UNLESS THE PROBLEM EXPLICITLY REQUIRES A WRITTEN SUBMISSION, YOU ARE ONLY REQUIRED TO BE PREPARED TO DISCUSS THE PROBLEM IN CLASS. Grades in this course will be based on a two hour final exam (75%) and quizzes (10 min.) (25%) and may be adjusted by one grade up for outstanding class participation. The final examination will be a closed book, written exam drawing from all materials in the course (assigned readings, class and online discussion and other materials as identified by me prior to the exam). Specific instructions and more details about the format for the examination will be given in class and at the review session prior to the end of the semester. There will be no midterm. The quizzes will be given every 2ND Monday at the beginning of class (starting January 25, 2010 and will cover assigned readings and class discussion for the classes prior to the quiz and after what is covered on the preceding quiz (or the beginning of the semester for the first quiz). You will need to obtain your confidential student exam number from the law registrar in order to take the quizzes. Each quiz will primarily consist of some combination of matching, multiple choice, true/false, or short answer questions. The quizzes are meant to be very brief (10 minutes) and you will be permitted ample time. Quiz grades will be posted on the course website by exam number. (For this and other reasons, it is critical that you keep your student exam number confidential throughout the semester.) It is your responsibility to ensure your grade is posted.

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Difficult questions will be discussed on the TWEN website or in class. Additionally, you are welcome to review your quizzes with your TA during TA office hours. There will be six quizzes over the semester. I WILL DROP THE LOWEST SCORE. If you are unable because of an emergency to attend a class when the quiz is given, contact me and you will be required to take it in my office at the earliest possible time. For that reason, under our honor code, those who have taken the quiz should not discuss it with anyone who has not taken the quiz until the quiz results are posted. I have listed my work telephone numbers and email on the first page. If you need to talk to me, please feel free to call me. Alternatively, you can send me an email message, which often gets a faster response. Learning Outcomes: This class has the following objectives:

1. Develop student familiarity with the Federal Rules of Civil Procedure and related federal civil procedural litigation requirements as well as certain California procedures that vary from federal law through class discussion, problem analysis, assignments requiring preparation of pleadings discovery and a memorandum as well as the preparation for and the administration of a final exam;

2. Develop student proficiency in statutory interpretation of federal and California procedural laws;

3. Develop student proficiency in case opinion analysis including identify key components of a decision and the development of rules from multiple opinions;

4. Develop student proficiency in legal/factual analysis including identifying key facts, issue spotting and legal reasoning in problem analysis;

5. Develop student proficiency in writing skills and written legal analysis, including the above-mentioned pleading, discovery and memo drafting as well as writing an exam essays;

6. Developing student oral advocacy skills through oral participation in the classroom;

7. Become familiar with alternative dispute resolution techniques;

8. Become familiar with ethical requirements associated with filing pleadings and memoranda and conducting discovery and protecting privileges.

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Reading and Problem Assignments Monday, January 11 1. Intro; The Complaint Under Code Pleading & the Federal Rules

Casebook: 554 to middle of page 556 (don’t read Cook); 558 to page 567). Kane: FRCP 1, 2, 8(a), 12(b) Wednesday, January 13 2. Drafting a Complaint I: Specificity

Kane: FRCP 8(d), 8(e), Forms 1, 2, 7, 10 & 11 Casebook: 568-579 (up to “The Separate-Statement Requirement) Supplemental Course Reader: 1-11 Ashcroft v. Iqbal (read version posted on TWEN site under course materials) NO CLASS Monday, January 18, Martin Luther King Day Wednesday, January 20 3. Drafting a Complaint: Pleading Special Matters, Burdens Casebook: 579-594 Kane: FRCP Rules 9(b), (g), 10, Form 21 Kane: 622-631 (Children’s Television) Please come to your next TA session prepared to discuss how you would respond to Problem 1 attached to the syllabus. The actual complaint must be turned in on Monday, January 25. Monday, January 25 4. QUIZ DAY

Responding to the Complaint: Motions to Dismiss; Answers, Affirmative Defenses

Kane: FRCP Rules 7(a), 7(b); 8(b), 8(c), 8(d), 12; Form 30, 40; pp. 346-348 (start with CCP § 430.10)

Casebook: 602-612) Supplemental Course Reader: 12-20 Casebook: 617(Affirmative Defenses) -622(up to Reply) Please prepare Problem 2 for your next TA session.

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Wednesday, January 27 5. Amending the Pleadings; Voluntary Dismissals; Default Judgments a. Amending the Pleadings FRCP Rule 15 Casebook: 623 (Section D intro, skip Beeck) Supplemental Course Reader: 21-24 Casebook: 630-634 b. Voluntary Dismissals & Default Judgments FRCP Rules 41(a), (b), 55 Supplemental Course Reader: 25-26 Monday, February, 1 6. Federal Rule 11 & the Lawyer's Duty to Ensure Truthful Pleadings & Other Papers

Filed with the Court FRCP Rule 11 Casebook: 642 (start with Hadges case) - 651 Supplemental Course Reader: 27-35 We will discuss the following questions in the Supplemental Course Reader: p. 31, Question 1 & pp. 34-35, Questions 1 & 3. Wednesday, February 3 7. Joinder of Claims by Plaintiffs & Counterclaims Supplemental Course Reader: 36-38 FRCP Rules 18(a), 13(a), 13(b), 13(c), 13(h), 42; 28 U.S.C. §1367. Casebook: 652(first paragraph only), 654-668 Please prepare Problems 3 and 4.

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Monday, February 8 8. QUIZ DAY

Permissive Joinder of Parties & Cross-claims &

a. Cross Claims Supplemental Course Reader: 36-39 FRCP Rule 13(g), 13(h) Casebook: 668-674

Kane: 670-678 Please prepare Problem 5. b. Permissive Joinder of Parties

FRCP Rule 20 Casebook: 678-685 Please prepare Problem 6 Wednesday, February 10 9. Joinder of Parties Needed for a Just Adjudication

FRCP Rule 19 Casebook: 688-704

Please prepare Problem 7 NO CLASS MONDAY FEB. 15 PRESIDENT DAY’S HOLIDAY CLASS MEETS ON TUESDAY 2/16 Tuesday, February 16 10. Third Party (Impleader) Claims & Interpleader

a. Impleader Supplemental Course Reader: 40-41 FRCP Rule 14(a), (b) Casebook: 704-712 Please prepare Problem 8

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b. Interpleader

FRCP Rule 22; 28 U.S.C. §§ 1335, 1397, 2361 Casebook: 713 (lst para under Section F); 718 (starting at bottom) -722; 727 (State Farm)-732 Supplemental Course Reader: 42-48

Please prepare Problem 9

c. Intervention

FRCP Rule 24 Casebook: 733-740 Supplemental Course Reader 49-54

Please prepare Problem 10 Wednesday, February 17 11. Introduction to Class Actions

FRCP Rule 23 Casebook: 741-757

Supplemental Course Reader: 55-58 Monday, February 22 12. QUIZ DAY

Class Action continued:

a. Types of Class Actions

Casebook 757-767 b. Class Action Procedures,

FRCP Rule 23 Casebook: 767-777 Wednesday, February 24 13. Class Action continued

a. Due Process Considerations, Jurisdictional Issues (Tues. Sept. 19) Casebook 777-795

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b. Class Actions: Reform and review of class action viability, Class Action Fairness

Act

Casebook 276-278, Supplemental Course Reader: 59-64; 70-75 Monday, March 1 14. Settlement of Class Actions: Preclusive Effect of Class Action Judgments Casebook: 796-825

Supplemental Course Reader: 65-69 Please Prepare Problem 11 Wednesday, March 3 15. Introduction to Discovery FRCP Rules 26 (b)(1), (b)(2), (g) Casebook: 826-829; 837- 844

Supplemental Course Reader: 76-79 Monday, March 8 16. QUIZ DAY

Discovery: Mandatory Disclosure; Depositions; Interrogatories; Requests to Produce & for Physical Examinations

FRCP Rules 26(a)(1), (f); 30(a); 33; 34(a); 35.

Casebook: 849-856 (top); 861-865; 870-885 Supplemental Course Reader: 80-83

Please begin preparing Problem 12. This is a written exercise that must be turned in today on Mon., March 8. Also, please come to your next TA session prepared to discuss at least five (5) pieces of information that you would like to obtain in discovery from one of the parties in Smith v. Caldwell Homebuilders, and the discovery devices that you proposing using to obtain this information. Students with last names A-K should come prepared to play the role of plaintiffs’ attorney; students with last names L-Z should be prepared to play the role of defendant’s attorney.

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Wednesday, March 10 17. Discovery: Duty to Supplement Discovery Responses; Work Product Privilege;

Attorney Client Privilege

a. Duty to Supplement Discovery Responses

FRCP Rule 26(e) Casebook: page 888

b. Work Product Privilege

FRCP Rules 26(b)(3) Casebook: 896-907

Please prepare Problem 13 c. Attorney Client Privilege

Casebook: 907-917 MARCH 15-19 SPRING BREAK Monday, March 22 18. Expert Witnesses; Judicial Supervision of Discovery (Mon., March 22) a. Expert Witnesses

FRCP Rules 26(a)(2); 26 (b)(4) Casebook: 917-920

b. Judicial Supervision of Discovery

FRCP Rules 26(c), 37 Casebook: 920-926 (top)

c. Pretrial Management

FRCP Rule 16 Casebook: 931-939

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Wednesday, March 24 19. Summary Judgment

FRCP Rule 56

Casebook: p. 958; p. 970 (bottom of page, beginning with note about Adickes v. Kress) to p. 987 (stop at Section B).

Please prepare Problem 14 Monday, March 29 20. QUIZ DAY

The Right to Trial by Jury, Part I Casebook: 1002-1020 (stop at Tull case) Wednesday, March 31 21. The Right to Trial by Jury, Part II

Casebook: 1020-1035; 1047-1049 (stop after n.3); 1056 (begin with Edmonson case) to 1060

Please prepare Problem 15 Monday, April 5 22. Taking the Case From the Jury: Judgment as a Matter of Law; Jury Instructions a. Judgment as a Matter of Law FRCP Rule 50

Casebook: 1070-1076; 1085 to 1091;

b. Jury Instructions FRCP Rules 51 Casebook: 1094 to top of 1002

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Wednesday, April 7 23. Motions for New Trial: Incoherent Jury Verdicts; Verdict Against Weight of Evidence;

Conditional New Trials; Final Judgment Rule Motions for New Trial FRCP Rules 59, 60

Casebook: 1119 to middle of 1120 (stop before Ginsberg case); 1005 to 1007; 1138 - 1141; 1044 to middle of 1148; 1154 (Patrick case).

Please prepare Problem 16 Monday, April 12 24. QUIZ DAY

Appellate Review

FRCP Rules: 52 (a); 54(a)(b); 28 U.S.C. §1291; 1292(a), (b). Casebook: 1187-1191 (stop at Jetco case); bottom of 1194-1203 (stop after note 3); Top of 1224 (1st para. Under C (1)), 1233 (start at section B) -1241.

Wednesday, April 14 25. Res Judicata and Collateral Estoppel: Claim & Defense Preclusion Casebook: 1249 to 1263; 1267-1272. Please prepare Problem 17 Monday, April 19 26. Res Judicata and Collateral Estoppel: Issue Preclusion Casebook: 1272 to top of 1289. Kane: [Mycogen case] 694-696 (skip Part II of decision) 699-702 Wednesday, April 21 27. Res Judicata and Collateral Estoppel: Determining Who is Bound by Prior Judgment

Casebook: 1305 (start Section E)-1326.

Please prepare Problem 18

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Monday, April 26 28. Alternative Dispute Resolution & Review Casebook: 1206-1218 Review Session: TBD Final Exam: Thursday May 6, 2010 at 2:00 pm

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Spring 2010 Civil Procedure II Problems

Problem 1

Jim & Donna Smith live with their 2 & ½ year old daughter in Saratoga Point, a large subdivision with several hundred homes located just south of San Jose, CA. The subdivision was constructed by Caldwell Homebuilders in early 2002, on the site of an old industrial landfill and junkyard. The prior owner of the property, George Besone, had closed the site in 1997, and sold it to Caldwell Homebuilders in 2001. The Smiths purchased their brand new home in 2004, believing that it was an ideal place for them to raise a family.

Beginning in 2004, shortly after purchasing the home, the Smiths and a number of their neighbors began to experience unpleasant odors, sometimes so powerful that children in the area couldn’t go outside to play. The Smiths also noticed that their water, drawn from a well at the far end of the subdivision, frequently had a brownish tint, and tasted bitter. Like other residents, Donna also began experiencing regular headaches and flu-like symptoms. From 2004, Donna became pregnant on six separate occasions, but all of the pregnancies resulted in miscarriages.

Donna went to numerous specialists to determine the cause of her miscarriages, at a cost to her of several thousand dollars. Donna finally gave birth to Jamie in mid-2006, although Jamie was born prematurely, with several physical handicaps and permanent learning disabilities. A pediatric specialist recently concluded that the most likely cause of Jamie’s condition (and Donna’s miscarriages) was Donna’s exposure to toxic chemicals.

In late 2009, in response to the repeated complaints about odors and poor water quality, the California Department of Toxic Substances Control (DTSC) investigated the site. The investigation concluded that the soil underlying 90% of the houses in the subdivision was contaminated with several toxic chemicals, that this contamination was responsible for the foul odors residents had been experiencing, and that contamination had infiltrated the subdivision’s water wells. DTSC issued an order closing the wells. Of greatest concern to DTSC investigators was the fact that water in the well had significant amounts of mercury and toluene, chemicals that can lead to female reproductive harm (such as spontaneous abortions), and can cause birth defects. The DTSC also made these findings:

“Prior to construction of the Saratoga Point subdivision, Caldwell Homebuilders failed to properly clean up prior contamination at the site. Specifically, Caldwell Homebuilders failed to follow standard industry practice at the time, which was to test the soil for contamination, test to see if any chemicals were migrating to the water wells, and treat and dispose of any contaminated soil found on site.”

Caldwell Homebuilders is a national corporation which is incorporated in and has its principal place of business in New York.

Jim & Donna Smith have asked you to draft a complaint on their behalf to be filed in federal district court. The plaintiffs will be Donna Smith, suing on her own right, and Jim & Donna Smith, suing on behalf of their 3½-year old daughter (assume that under California law, Jim & Donna are authorized to sue on behalf of their daughter.) The complaint should allege that Caldwell Homebuilders was negligent in failing to properly clean up the site before constructing

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the Smith’s home, and that this negligence has resulted in the medical injuries suffered by Donna Smith and her daughter Jamie. You do not necessarily have to allege a specific dollar amount of damages. For guidance, you may wish to refer to the sample complaint posted on TWEN (a very elaborate model) or FRCP Form No. 11, (a very simple brief model), bearing in mind the new Bell v. Atlantic decision’s holding.

Your complaint must be turned in during class on Monday, January 25. Please bring two copies—one for your TA, the other to be exchanged with one of your student colleagues, for next week’s problem.

Problem 2

You have temporarily switched sides in the case of Smith v. Caldwell Homebuilders, and are now the attorney assigned to represent Caldwell Homebuilders in preparing a response to the complaint filed by Jim & Donna Smith. To prepare the response, you interview Bill Caldwell, president of Caldwell Homebuilders. In the interview, you learn the following facts. When George Besone (the prior owner) sold the subdivision property to Caldwell Homebuilders, Besone never informed Caldwell that the site had previously been used as an industrial landfill and junkyard. Rather, Besone told your client that no other party had ever used the site or sent waste there, and that no hazardous substances had ever been disposed of on site. Based on this information, Caldwell followed what it believed was standard industry practice and conducted a visual inspection of the site. Out of an abundance of caution, it also conducted limited soil testing for contamination, which proved negative—i.e., there was no evidence of any toxic contamination in the limited areas that Caldwell tested.

Caldwell also believes that the level of soil and well water contamination reported by DTSC is exaggerated, based on a recent study by the company’s own consultant. The consultant’s report also indicated that a significant portion of the contamination may have originated not from the subdivision site but from a large pesticide formulation factory owned by Apex, Inc, located 2½ miles from the Caldwell subdivision.

Finally, Caldwell’s medical consultant has informed you that even the levels of mercury and toluene contamination reported by DTSC were quite low compared to the levels at which these chemicals have been shown to cause reproductive harm and birth defects in laboratory animals, and that exposure to these levels was “highly unlikely” to cause miscarriages or birth defects. The consultant also informs you that Donna Smith has been a heavy cigarette smoker for the past 10 years (smoking two packs) a day, and also drank during her pregnancy with Jamie, and that this may have contributed to her miscarriages and Jamie’s disabilities.

Based on this information, how would you recommend that Caldwell Homebuilders respond to the complaint that has been served on it by opposing counsel (i.e., your fellow student)? You should consider issues such as whether Caldwell should file an answer or other responsive pleading, which allegations Caldwell should admit or deny, which (if any) affirmative defenses Caldwell should raise, or any other responses you believe would be appropriate. THIS PROBLEM DOES NOT REQUIRE YOU TO TURN IN AN ANSWER, JUST BE PREPARED TO DISCUSS IN YOUR TA SESSION HOW YOU WOULD RESPOND CONCEPTUALLY TO THE COMPLAINT.

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Problem 3

Assume that no complaint has yet been filed in the matter of Smith v. Caldwell Homebuilders. Plaintiffs Jim & Donna Smith have asked you to file a complaint against Caldwell Homebuilders. They have asked your advice about whether they can file a single complaint against Caldwell, and join two claims together in this complaint. They have presented you with two possible scenarios, described below.

1. In the first scenario, they would like you to file a complaint that includes both (a) the claim against Caldwell for negligence previously discussed in Problem 1, and (b) a claim alleging damages to the Smith’s skylights due to Caldwell’s alleged breach of warranty. Specifically, about two years ago during some heavy winter rains, the skylights in the Smiths’ bedrooms developed major leaks. The leaks resulted in damage to the Smiths’ carpet and furniture, totaling around $85,000. The Smiths’ house is still under warranty from Caldwell, guaranteeing that Caldwell will reimburse the Smiths for any damage to the house or interior resulting from rainstorms or other weather events.

Can these claims be joined together in a single complaint against Caldwell?

2. In the second scenario, they would like you to file a complaint that includes both (a) the claim against Caldwell for negligence previously discussed in Problem 1, and (b) a claim alleging that Caldwell has violated a federal environmental law, the Resource Conservation & Recovery Act, 42 U.S.C section 6972. Under this federal statute, private citizens may file suit a defendant to force the clean up of sites contaminated with hazardous wastes, such as mercury and toluene. To sue under this statute, plaintiffs must allege that defendant has contributed to a release of a hazardous waste to the environment, such as the soil, groundwater, or air, and that the release may pose a risk to the public health or environment.

Can these claims be joined together in a single complaint against Caldwell?

Problem 4

During 2003, the City of San Francisco contracted with an asbestos removal firm, Ecotech, to remove asbestos from its schools. Ecotech is incorporated and has its principal place of business in Illinois. Ecotech was 15 days late in finishing the asbestos removal. When San Francisco realized the removal wouldn’t be completed on time, it rented portable classrooms from Big 5 Rents, a Nevada corporation. Big 5 Rents, however, was 15 days late in delivering the portable classrooms to San Francisco.

In 2004, San Francisco filed suit in federal court against Ecotech and Big 5 Rents, seeking to recover damages of $500,000 from each, damages that San Francisco alleges it suffered because of Ecotech and Big 5’s breach of their contracts with the City.

Ecotech files a counterclaim alleging that San Francisco violated the Federal Healthy Schools Act when it hired another, allegedly unqualified firm, rather than Ecotech, to carry out a separate asbestos removal project in the San Francisco schools beginning in 2007.

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Big 5 Rents files a counterclaim alleging that San Francisco failed to adequately prepare its school grounds for installation of portable classrooms, and that as a result, Big 5 lost $150,000 in salaries and other costs incurred because it could not begin its work under the contract on time.

How should the court rule on the counterclaims?

Problem 5

Assume for the purposes of this question that plaintiffs in Smith v. Caldwell Homebuilders have filed a complaint alleging negligence in which they name as defendant s both Caldwell Homebuilders and Phil Stanton. Stanton is the Executive Vice President for West Coast Construction for Caldwell Homebuilders, and was the key person responsible for supervising construction and development of the Saratoga Point subdivision. Stanton lives and works in Caldwell’s Denver office. Caldwell Homebuilders discovers that for the past several years, Stanton has been filing false travel claims, billing the company for his home furniture, and taking unauthorized vacation leaves. Caldwell would like to make a claim against Stanton for $81,400.

Can defendant Caldwell Homebuilders file this cross claim against defendant Stanton?

Problem 6

Assume again that you are the attorney for the Smiths, and that you have not yet filed a complaint.

1. A neighbor of the Smiths living in the Saratoga Point subdivision, Patti Johnson, also purchased her home from Caldwell Homebuilders in 2002 and has been a resident there ever since. She also has suffered several miscarriages over the past two years, and would like to file suit to recover damages for her injuries, including medical costs incurred.

Can the claims of the Smiths and Ms. Johnson be joined together in a complaint alleging negligence against Caldwell Homebuilders?

2. Assume you are now representing only the Smiths. You would like to file a complaint on the Smiths behalf alleging negligence (based on the facts described in Problem 1) in which you join as defendant s Caldwell Homebuilders and Phil Stanton. Stanton is Executive Vice President for West Coast Construction for Caldwell Homebuilder s, and was the key person responsible for supervising construction and development of the Saratoga Point subdivision, including investigating and cleaning up any prior contamination of the site. Stanton lives and works in Caldwell’s Denver office. You believe that he bears the major blame for what has happened to you and would like to name him in the complaint personally, as well as suing Caldwell.

Can you file a complaint alleging negligence in which you join as defendants Caldwell Homebuilders and Phil Stanton?

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Problem 7

The United States Department of Commerce administers the rights of various Indian Tribes to fish in the Klamath River. The Makah Indian tribe sues to force the government to reallocate the fish allotments awarded to the tribes, arguing that its historic economic and cultural interests are not being adequately protected. The plaintiff fails to join the 23 other tribes which possess federally allotted fishing rights in the Klamath. The federal government moves to dismiss for failure to join the other 23 tribes as necessary parties. How should the court rule?

Problem 8

You are representing defendant Caldwell Homebuilders in Smith v. Caldwell Homebuilders. Can you file a third party claim against George Besone, the prior owner of the site (see facts about Besone in Problems 1 & 2)? Besone is a lifetime California resident, currently residing just outside of San Jose.

Problem 9

As general manager of the San Francisco Giants, you are in possession of the baseball that Giants’ slugger Barry Bonds hit for his record-breaking 71st home run. Security guards for the Giants took possession of the ball after a fight broke out among a dozen or so fans who handled the ball after it landed in the stands and who all claim that they are rightful owners of the ball. The value of the ball is estimated at $500,000. The Giants do not have any interest in which fan gains possession of the ball, the team simply does not want to have to defend against multiple lawsuits by each of the fans with an ownership interest. The Giants are a California corporation.

Of the dozen fans claiming ownership, 10 are resident s of California, one is a resident of Nevada, and one is a resident of New York (yes, even Yankee fans attend Giants games). Can the Giants file an interpleader action against the 12 fans?

Problem 10

A commuter airplane carrying 15 passengers crashes near Sacramento, CA after its engine began sputtering during takeoff, resulting in serious injuries to the passengers. The passengers file a single lawsuit in the appropriate federal district court, alleging that defendant (the airline company) was negligent in maintaining the engine and that its pilot operated the plane negligently. The plaintiffs each seek $100,000 in compensatory damages for their medical bills. Three of the plaintiffs add claims for emotional distress and punitive damages. Two of the plaintiffs add a claim that alleges that on a trip on the same airline three months earlier, defendant provided them with inferior service and discriminated against them because of their Arab surnames, in violation of federal civil rights law. All fifteen plaintiffs are residents of California. Defendant is incorporated in and has its principal place of business in Nevada. Defendant moves to dismiss the case for improper joinder of parties and claims. The court denies the motion.

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Defendant files a counterclaim for conversion against four of the plaintiffs. It alleges that over the past two years, each of the plaintiffs has separately used sophisticated computer programs to steal airline tickets and vouchers from defendant. It claims that each of the four plaintiffs is liable to defendant for damages of $20,000. Plaintiffs move to dismiss the counterclaim, and the court denies the motion.

The owner of the Sacramento airport from which the airplane departed moves to intervene in the matter under Rule 24(a). It alleges that its reputation could be adversely affected if the defendant loses the lawsuit, and that it would suffer lost business as a result. The plaintiffs oppose the intervention motion. The court grants the motion to intervene.

The case proceeds through discovery, which lasts two years. On the eve of trial, plaintiffs moves to amend their complaint to add as a new defendant the pilot of the plane. The pilot has been aware of the action since the complaint was filed. The statute of limitations for negligence claims is one year. Paul opposes the motion as untimely filed. The court denies the motion to amend the complaint.

Please discuss and answer the following:

1. Was the court correct in denying defendant’s motion to dismiss for improper joinder of parties and claims?

2. Was the court correct in denying the plaintiffs’ motion to dismiss the counterclaim? 3. Was the court correct in granting the airport owner’s motion to intervene under Rule

24(a)? 4. Was the court correct in denying plaintiffs’ motion to amend their complaint?

Problem 11

Plaintiff is a Mexican-American employee who works for Fine Clothes Garment Company, a company with many factories across the country employing 1000 workers in total. Plaintiff and others employees in the company believe that Company has paid them lower wages than other, non-Mexican-American workers, and failed to pay them overtime, because they are Mexican-American. Plaintiff has worked many hours for wages that he believes are lower than what other comparably qualified workers receive. He has never worked overtime, but has witnessed numerous co-workers working overtime, has talked to them about their pay, and wants to do right by them.

Plaintiff files a class action complaint in federal district court on behalf of Mexican-American employees working at Company. The complaint alleges a claim that the class has not been been paid time-and-a-half for overtime, as required by federal law, and that Mexican-American workers have been paid less than white workers in the same job classifications. The complaint alleges a claim that this treatment results from company policy and violates federal civil rights laws, in particular Title VII. The complaint requests money damages based upon the amount of wages owed to each employee, and punitive damages resulting from defendant’s wrongful conduct. Defendant answers, denying all allegations. The company, upon hearing of the lawsuit, immediately promotes plaintiff to a managerial supervisory position.

Plaintiff moves to have the case certified as a class action. In support of its motion, plaintiff submits evidence that the average wage of Mexican-American workers at the company is 30%

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lower than white workers in the same job classifications, after controlling for all other factors. Plaintiffs also submits evidence that the Company’s policy is to have no written criteria for wage and overtime determinations, leaving this to the subjective discretion of individual factory managers who act on biases against Mexican-Americans. Defendant opposes the motion. It submits evidence about its company-wide policy of non-discrimination in all employment matters, including wage and overtime determinations, as well as the deposition testimony of several Mexican-American workers who have been promoted to managers and testify that the company’s policies are not discriminatory.

The Judge grants certification for a nationwide class as alleged and requires the class to send notice to all of its class members. Please discuss whether the court’s ruling is correct.

Problem 12

Your assignment is to draft five interrogatories to propound to either Caldwell Homebuilders or Donna Smith. For purposes of this exercise, students with last names A-K are representing plaintiffs; students with last names L-Z are representing defendant. A copy of elaborate sample interrogatories can be found on TWEN. For purposes of this exercise, don’t worry about getting the format of the interrogatories precisely correct (for example, don’t worry about including definitions or instructions); I am more interested in the content of the interrogatories. Please prepare two copies of the interrogatories; one for the TA to review; the other to exchange with one of your student colleagues. This assignment is due in class on Monday, March 8.

Problem 13

Caldwell Homebuilders has requested two documents from the Smiths concerning a potential witness, Gary Thompkins. Thompkins was an assistant manager at Caldwell from 2000 to 2007 working closely with Phil Stanton on construction and development of the Saratoga Point subdivision. After the litigation against Caldwell was filed, Thompkins met with a Golden Gate law student employed as a law clerk for the Smith’s attorneys for an extensive interview, and later signed a statement written by the law clerk. The law clerk also took detailed notes and prepared an interview summary with his conclusions and impressions of the interview and the witness. Thompkins has now left the country and is leading treks in Nepal. Caldwell Homebuilders wants copies of the law clerk’s notes and the written statement. Is it entitled to get these documents in discovery?

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Problem 14

You are a law clerk to an attorney named Melanie Morder. Please prepare the “reply” requested in the following memo:

To: My Law Clerk

From: Melanie Morder, Esq.

I represent MUNI in defense of a lawsuit brought by Polly Potts (P). On March 1, 1995, Potts filed a complaint against MUNI Bus Company (M), alleging that on March 2, 1994, one of their bus drivers—Ralph Kramden (K)—negligently drove his bus into Polly while she was crossing the street at First and Mission Streets, breaking her leg. MUNI filed an answer which denied my allegation of negligence and also alleged an affirmative defense: the incident occurred on February 28, 1994, and therefore the one year statute of limitations on negligence actions had run.

After both sides engaged in discovery, MUNI filed a motion for summary judgment. MUNI’s memo of points and authorities argued that “there are no triable issues of fact regarding the statute of limitations or whether Kramden was negligent.” MUNI also attached an affidavit from Kramden, which read:

On February 28, 1994, I was driving my bus at First and Mission Streets as I was trained to do, when my bus apparently struck Ms. Polly Potts.

In response, Potts filed an affidavit which states:

I was crossing Mission Street at First, when a MUNI bus driven by Ralph Kramden ran into me. Kramden was driving negligently. I believe that he ran a red light. He has a reputation for driving negligently. During the month preceding the accident, he had two traffic tickets, one for speeding and the other for running a stop sign.

Potts claims this affidavit establishes a triable issue of fact. Please prepare a one page double-spaced reply to the response to our Motion for Summary Judgment citing any applicable cases and submit to your TA for class on March 24.

[Note: a reply is the responsive brief to the other side’s response to the original motion. Don’t be a judge, be an advocate for MUNI in this case as you take on Potts’ response]

Problem 15

Assume that Smith v. Caldwell Homebuilders is going to trial in federal district court. The Smiths are proceeding with three claims: (1) their basic claim for damages for the medical injuries suffered by Donna Smith and Jamie Smith; (2) their claim under the federal Resource, Conservation & Recovery Act (RCRA) to force cleanup of the contaminated soil and groundwater at the site, and for an order requiring Caldwell to provide them with an alternative supply of drinking water; and (3) another claim under RCRA (added to the complaint just before trial and not previously discussed in class) seeking civil penalties against Caldwell of up to $10,000 per day for violations of the statute. [RCRA authorizes citizens to file suit seeking civil penalties for violations of the statute, including against persons who contribute to the disposal of

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hazardous waste that poses an imminent & substantial threat to the environment. The statute is silent about the right to a jury trial.] The Smiths have filed a timely demand for a jury trial on all three claims.

Caldwell opposes the jury trial demand for each of these claims, raising several arguments. It maintains that actions to recover damages for exposure to toxic contamination were not recognized when the Seventh Amendment was adopted in 1791. It further argues that the request for cleanup is the predominant aspect of plaintiff’s RCRA claim, and that the RCRA claim is therefore an equitable rather than a legal claim. Finally, even if plaintiffs have a right to jury trial on their medical damages claim, the RCRA cleanup claim should be tried first because it will deal far more comprehensively with the issue of who caused the contamination at the site, and this determination will greatly facilitate the jury’s resolution of plaintiffs’ negligence claim.

1. Are plaintiffs entitled to a jury trial on their three claims? 2. As a strategic matter, do you think Caldwell should oppose the demand for jury trial on

these three claims?

Problem 16

Assume that Smith v. Caldwell Homebuilders proceeds to a trial before a jury on the issue of medical damages to Donna & Jamie Smith. At the close of evidence presented by both sides, Caldwell moves for judgment as a matter of law under FRCP, Rule 50(a) (i.e. a directed verdict). As grounds for the motion, Caldwell asserts that plaintiffs have failed to produce sufficient evidence demonstrating that exposure to toluene and mercury at the levels in question at the Saratoga Point subdivision can cause miscarriages of the type experienced by Donna Smith or the specific developmental disabilities that Jamie Smith is suffering. Specifically, defendant argues that the overwhelming weight of medical evidence presented at trial by its experts demonstrates that no adverse health effects of any kind occur at the levels present at Saratoga Point.

At trial, plaintiffs introduced two studies of laboratory animals showing possible links to miscarriages and development al disabilities from exposure to toluene and mercury at the levels in question in the case; these studies, however, were contradicted by numerous other, more recent findings. Plaintiffs also relied on the testimony of a public health expert who concluded that low level exposure to toluene and mercury very likely caused the medical injuries that plaintiffs suffered; his testimony, however, was severely attacked by Caldwell on the grounds that (1) he was a true “hired gun,” having testified as an expert witness in 15 trials over the past 5 years, and that his testimony was biased; and (2) according to most other public health experts, including three who testified for defendant at trial, he was “out of the mainstream” of the public health community.

After a long time considering the Rule 50(a) motion, the judge denies it. In his ruling, the judge says that “I find plaintiffs’ public health expert not very credible, and plaintiffs’ evidence weak at best. But I think this case should go to the jury.” The case then goes to the jury, which returns a verdict in favor of the Smiths, and awards $1.4 million in actual and punitive damages. Five days after entry of judgment, Caldwell files a motion under Rule 50(b), renewing its request that the court grant judgment as a matter of law (i.e. for judgment notwithstanding the verdict), or in

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the alternative, requesting that the court order a new trial, pursuant to Rule 59(a). The judge denies the motion for JNOV, but grants Caldwell’s motion for a new trial.

1. Was the judge correct in denying the motions for directed verdict and JNOV? 2. Especially in light of these rulings, was the judge correct in granting the motion for a new

trial?

Problem 17

Assume that the Smith v. Caldwell Homebuilders case goes to trial. The court issues a judgment finding that defendant failed to exercise due care in cleaning up contamination at the site before constructing the subdivision, and awards plaintiffs $500,000 in damages. The court also rules that defendant has violated RCRA and orders it to clean up the site over a period of several years. Recall that RCRA allows private citizens to file suit to force the clean up of sites contaminated with hazardous waste. A plaintiff must allege (and prove at trial) that there has been a release of a hazardous waste to the environment caused by defendant that poses a risk to public health or the environment.

Six months after entry of judgment by the federal court on the RCRA claim, the Smiths sue Caldwell for injunctive relief (a cleanup order) in state court, based on a common law nuisance theory. The basis of the nuisance claim is that defendant caused a release of hazardous waste into the soil that contaminated plaintiffs’ property, and posed a risk to their health. The complaint seeks an order requiring a cleanup of the site that is more protective than the one ordered by the federal court. In response, defendants file a motion to dismiss plaintiffs’ claim on the grounds that it is barred by res judicata (claim preclusion).

Should defendants’ motion to dismiss the nuisance claim be granted?

[For purposes of answering this problem and the next one, don’t worry about issues of subject matter jurisdiction, please just focus on the claim preclusion questions.]

Problem 18

In 2004, plaintiffs file a class action complaint in federal court, alleging that defendant violated the Federal Securities Act. The court certifies the class, which consists of 10,000 investors in the U.S. who purchased defendant’s stock in January, 2002, and later suffered losses when the stock dropped in price. The complaint alleges that defendant’s January, 2002 prospectus (a prospectus is promotional material describing the company’s stock that is being sold) was false and misleading, and that plaintiffs relied on it to their detriment. The complaint seeks injunctive relief (to stop defendant from issuing fraudulent prospectuses in the future), and damages on behalf of each class member.

In a prior lawsuit, an investor named Bill Kaufman also had sued defendant for violating the Federal Securities Act, alleging that defendant’s January, 2002 prospectus was false and misleading. At trial in that case, defendant raised two defenses, each of which is a complete defense to liability for violating the Act: (1) the statement s in the prospectus were not false and misleading; and (2) the statement s were not “material” to investors (i.e. they were not significant enough that investors relied on them in making their decisions about purchasing stock). After

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hearing all the evidence, the court ruled for plaintiff Kaufman. Plaintiffs now file a motion for summary judgment, arguing that defendant is barred by the earlier lawsuit from relitigating the issue of whether its prospectus was false and misleading. The court denies the motion.

Please discuss whether the court’s ruling was correct.

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