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D.

Removal
Statutory Procedure, available since 1789. Removal is not a basis of smj, rather a method by which a d could over turn state
forum and bring a case to federal ct.
Other Removal Statutes: S1442removal of cases against federal officers that assert a federal defense
OJ Federal issue on the face of the well pleaded complaint
Why would congress want this
o Federal Cts are better suited to decide federal laws, issues, more hospitable.
o Giving D same opportunity to get into federal court as federal cts have.
o Fed Cts: very liberal policies and discovery.
o D might prefer whether judge can comment on evidence, enable transfer to a more convenient location

Who: All Ds + all Ds have to agree (all properly joined and properly served Ds).
What: what they had jx. D can frequently tell if it falls within federal question (on the face of the well pleaded complaint) but they
may have no reason to plead citizenship or amount in controversy. Some states prohibit them from naming amount in ct in personal
injury suit. It may not appear on the face of the complaint whether there is delivery. Can file notice of removal right away but has to
state grounds on which it is removal, factual information other than sources of the complaint. P can file a motion to remand the
motion back to state court.
1) File
2) Wait until papers filed in the case make clear that it files diversity jx. File to remand is untimely. S1446 2(a) i.e. when
seeking an injunction can put a number. Sometimes states prohibit and statute does not preclude removal.
a. If p challenges notice, d has to prove by a preponderance of the evidence.

Scope: It is the civil action that is removable.

1441 A+B
P v. D ( FQ+ Statute) supplemental jx under S 1367 and D wants to removewhole thing is the civil action. Policy reasons you want
the whole thing removed to federal court because it derives from CNOOF. There was supplemental jx. Whole civil ation is removed
the whole collection is the civil action.

P V. D ( FQ+ STATE S 1367) + Statute ( Unrelated): look at it in the entirety

Diversity: Citizen of NY v. IL + Indiana and it was filed in Indiana---even thought there is complete diversity it is not removable it
cannot be removed if any D is a citizen of the state in which state was brought.
If it was a federal question then it would not be applicable.

Challenged: Who ever is invoking it to federal court has the burden.


Congress wanted to protect ppl from changing from moment of filing and the moment of removal
Rule Subject to exception; there has to be diversity at the time of filing and at the time of removal.
Exception
o Suppose P (IL) v. D1 (NY ) + D2(IL) if P and D1 dismiss case and settle at that point we have complete
diversity .the case becomes removable (voluntary)
o If involuntary where the P fails to state a claim against D2 D2 could come back if p was able to appeal
the dismissal of P2 and the court of appeals revers and then you would have a mess. Cts therefore do no
make an exception.
o Voluntary vs Involuntary Rule.
o If more than a year later: unless found that P acted in bad faith.p would delay dismissal for 1 year and
they would be stuck there. If more than a year after filing, P moves to remand on the ground that it s late
and D is not barred by one year because you acted in bad faith.

Ps who could sue in federal court sometimes chose to sue in state court instead.
o Fed ct does not offer jx for all the claims/parties they wish to include in the suit.

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Removal: allows D to overrule Ps choice to litigate in state court
o D have 30 days to remove and action to federal court.
o 1) state ct proceeding was within OJ of the district court ( diversity of citizenship or as a case arising under federal
law)

1. Plaintiffs usually prefer state court option


a. Greater familiarity with state procedure, greater likelihood for securing justice for clients
b. Local judges are elected by the people
c. Federal judges appointed for lifea lot of criminal law cases
d. Fed Cts
i. Stringent control of discovery, aggressive encouragement of settlement, and more frequent granting of
summary judgment.
ii. Could take a very long time.
2. States and Federal cts have concurrent jx over claims based upon federal law.
a. Congress can confer exclusive federal jx over federal law claims.
i. Minn v. Arrow Financ Service LLC rejected the argument that the telephone consumer protection act
barred federal courts from hearing federal question claims under the act. Act declared that claimants
could sue in an appropriate court of a state but the court saw no reason to interpret that language as
forbidding fed jx.
P v D (less than 75) but diverse and D asserts counterclaim for more.case as filed was still not removable. P still cannot remove.
Only D can remove.

P v. D v. X (3 pD) under Rule 14. ---still cannot remove.


Compulsory counterclaim under state pleading rules D needs to file in federal court before filing in state court.

D files an answer to the complaint in state ct. should doing so disqualify d from removing.
What if state gives 28 days to answer or else you are in default when we know that S fed statute gives 30 days to remove. D files
answer of D 28.

Answer to a complaint contains multiple hands, counter claims


D in its answer asserts a counter claim, should that waive them .

If you didnt file compulsoryyou would have waived your right to do so in the future. IF permissive, you are willing to litigate in the
federal court.
Valid Objection to Personal JXit he removes does he consent to. has to move to geographical district where
Ruhgas: suppose d objects to smj and personal jx, if there was a particular sequence in resolving issues. NO usually SMJ but
no. whether the should change in the context of a case that is removed.
D does not waive its objection to jx by removing the casethere is no waiver. You bring that objection with you.
Transfer if the case was properly removed and proper jx was not part of that ct could transfer 1446 to a proper venue. If
fed ct lacked jx.
Dont consent merly by removing.

P who consented to jx in state ct by fling thereis deemed to consented to federal ct where the state was removed.
OJ

P prefers state court


Strategy Policing
<$75 k notice of removal may assert nonmonetary relief.
Join an in state D fraudulent improperly joined. Misjoinder: there is a claim against each D, but its improperly joined
together.
Not asserting a federal question Completely pre-empted by federal law.

Case is properly removed on diversity jx. To ask for less then jx amount.
The P can do that but it cannot oust the court of jurisdiction.
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Removed on diversity; seeks to join a non diverse d. will oust the court of jx.
Fact of Relevant:
Did it delay for no good reasons.
How prejudicial will it be to the P and to the D.

Filed in state ct (FQ and supplemental state law claims) : If at time of removal or filing there is a substantial fq then yes jx.
If P voluntarily dismisses < it can under 1367 c can decide to keep or remand them.
If the timing is early and nothing was invested in the claim likely to remand as a discretionary matter.
If the case is close to trial it has made a sufficient investment and go to judgement in the claim .

If after the fed question is gone and says it doesnt want to hear it may remand them to stay court. Is that wrong because nothing in
the statue authorizes remand.
If the statute doesnt support it, what does.
Given authority under the Carnegie Mellon so it would be wasteful in money more fees and statute of limitations
problems.

If a case is improperly removal was improper. 1447 c: if there is an improper removal the P moves to remand. But on any defect
other than SMJ must be made within 30 days. IF DC lack SMJ at anytime it should be remanded.
Move to remand for untimeliness but more than 30 days have passed. You waived and court holds it to stays.
DC cannot remand on its motion susponte for defect only for SMJ>

Is the decision to remand appealable? 1441 a + b remand order are not repealable. Why do you think congress made it no appeable.
Ct doesnt want the case to continue moving back and forth multiple times.
Just let the case be decided on themerits.

Removed on Diversity JX. Remands to state court for lack of SMJ. Amends to federal question case.

Notes and Questions:


1. Client (CA) injured in a single car crash in CA, driving a car manufactured by Ford Motor (DE + MI)
a. How would you assure that ford would not remove? NO FED Q and AMT IN CONTROVERSY LOWER
i. Join in a state D
ii. Keep under Fed AMT in CT
iii. Dont assert a fed Q claim (or if you do drop them) refraining from asserting federal question.
iv. Joining a non diverse party.
b. If it were important to bring the case in CA state court would there be any way to prevent Ford from removing.
Keep under Fed AMT IN CtRequesting less than $75k. ; JOIN A DEF IN CA.
i. Hollenbeck v. Outboard Marine Corp the complaint attempted to limit the damages claims to less than
$75k for as long as the removal potential exists. State law allowed P to amend to increase the damage
claim later and the body of the complaint alleged present damages of at least $160,000.

c. If the P had the car serviced and tires rotated at a local garage 2 weeks before the accident, there might be a claim
against the garage in connection with the failure of the cars steering. If P sues the local garage as well, should
that affect removability? (Assuming its not fraudulent) Both defendants would have to agree to remove. If the
local garage is a citizen of the state might not be able to remove. JOIN A DEF IN CA.
i. Poulos v. Nas Foods Inc If a non-diverse D was fraudulently joined and there is no possibility of success
against it then the case is removable despite the presence of non-diverse D.
ii. Small Wood v. IL Central RR renamed fraudulent joinder doctrine improper joinder.
iii. Fraudlent/improper injoinder: focuses strictly on the legal justification for the claim against the non-
diverse
1. Motive of the P in seeking to avoid removal does not make the joinder fraudulent.

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d. Assume that P sues the garage asserts a legally justifiable claim and defeats removal. Six months later the garage
files a motion for summary judgment of the on the ground that there is no evidence that it was responsible for
any fault in the cars steering. IF ct grants motion, can Ford remove? Maybe because you have diversity.
i. American Car & Foundry Co v. Kettelhake to make the case removable it must appear that the
discontinuance of the claims against the jx spoiler was voluntary on the part of the P.

e. After garage files summary judgment, P and garage reach settlement under which P consents dismissal of her claim
for money. Voluntary dismissal of garage would clear way for removal by manf if it occurs within 1 year time limit.
i. Tedford v. Warner-Lambert Co P orchestrated the addition of a non-diverse D but executed a postdated
notice of nonsuit as to the d that became effective one day after the time to remove had expired. Ct did
not allow forum manipulation to 1 year removal limit.

f. Assume P does not sue garage and ford removes the case. A week later P amends the complaint to reduce prayer
for damages below. It doesnt matter because ct looks at the amount at the time of removal not later events.
i. St Paul Mercury INdem. V. Red Cab Co Ps reduction of the amount sought below jx min did not deprive
the ct of removal jx for that is determined by the circumstances at the time of removal and not by later
events.

g. Assume P does not sue the garage, and Ford removes the case. 6 months later P learns through discovery that
the steering was significantly damaged during the tire rotation. P might be able to add the garage and it would be
up to the cts discretion (if the garage is a citizen) if it would be remanded.
i. Spencer v. US district Ct amendment to add local diverse d after removal does not mandate remand
even though cause would not have been removable if the local D had originally be sued.
ii. Consider v. LA Weight Loss Centers Inc LA weight loss invoked diversity in removing an action that
alleged it was responsible for urging the use of diet supplements that may caused the decedents death.
After learning during discovery of the firm had given the advice in question, lawyers for the decedents
estate amended the complaint to add them as non diverse D. No one objected
1. P sought a remand of the action to state court under section 1447 e.
2. To late for the district ct to deny the proposed amendment to the complaint , the 7 th circuit
concluded that section 1447 e left lower no choice but to remand
3. LA Weight loss interest in avoiding the potential biases of local courts did not outweigh Ps
interest in avoiding the cost and inconvenience of parallel law suits in state and federal courts

2. Federal Question Claims (S1441 C)


a. Fq will trigger the availability of removal without regard to citizenship of the parties and the amount in controversy.
b. Renders inapplicable bar to removal of claims brought against Ds in their own state. (bar does not matter)
c. Will anchor the assertion of supplemental jx over all claims +parties that satisfy the relatedness test.
d. Rules
i. D has 30 days to remove
ii. If P decides to drop federal claim, can return to state court.
iii. Carnegie Mellon University v. Cohill- upholding remand following amendment that dropped the only
federal question claim

3. Congress has created certain types of cases that are not removable.
a. S 1445 a Federal Employers Liability act and Jones Act cases
b. S 1445 c workers compensation proceedings
c. Breuer v. Jims Concrete of Brevard Inc action under the Fair Labor Standards Act may be removed ; nothing in
statute forbids removable

4. Removal is limited to grounds authorized in S 1441


a. Fed Cts in 1990s began to permit removal of state-court cases that overlapped with federal ct proceedings under
the All Writs Acts S 1651 authorizes federal cts to issue all writs necessary or appropriate in aid of their
respective jx.
b. Syngenta Crop Protection v. Henson: SC rejected this practice. State ct P had intervened in the federal court case,
participated in settlement negotiations and stipulated to dismissal with prejudice in federal court.
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i. At hearing P told state court judge that only certain claims were included in the settlement of the federal
action, and the state court judge said the state ct case could proceed
ii. D removed to fed ct which retained jx over its case on the ground that Ps actions threatened to disrupt
the proceedings in federal ct.
iii. SC RULED: this was improper because the right to remove is entirely a creature of statute and the All Writs
act does not confer jx on the federal ct.
c. Multiparty Multi-Forum Trial JX ACT of 2002:
i. S 1369 creates a new form of original federal ct jx for multiparty , multiform situations in which the
minimal diversity requirement is satisfied and there is litigation resulting from the accident that led to the
death of 75 people
ii. S 1441e : contains removal provision to handle that situation
1. Class Action Fairness Act of 2005 added S 1452 which authorizes the removal of state law class
actions in which more than $5 million is sought on behalf of the class as a whole unless more
than 2/3rds of the class members and all the primary Ds are citizens of the state which the
action was file
5. How to Remove
a. D files a notice of removal in the federal court
b. Signed pursuant to Rule 11, containing the grounds for removal.
c. Ardison v. Villa manifest purpose of starting the period for removal from the date of service of the initial
pleading is to enable the D to intelligently ascertain removability from the face of such initial pleading.

6. Uncertainties
a. IF the D cannot tell whether there is diversity of citizenship from the complaint?
i. Lovern v. General Motors Corp P sued in Virginia state court claiming that his injuries in an auto
accident were magnified by defects in the seatbelt and the complaint did not allege Ps citizenship. GM
retained the police report about the accident which stated that P was a resident of Virginia + interrogatory
answers said the same thing
1. 28 days after police report and 8 days after interrogatory answers GM REMOVED. (88 days
passed since complaint was served)
2. AC removal was timely under the portion of S 1446 (b) which permits removal in cases not
originally removal of Ds later receipt of paper from which it may first be ascertain that the case is
one that is removable.
3. Ct held: Clock starts running only where an initial pleading reveals ground for removal or at
least that it doesnt start running if such details are obscure or omitted.
a. Would not require cts to look into the subjective knowledge of D.

b. Uncertainty as the whether the amount in controversy is satisfied


i. Singer v. State Farm Mut. Auto. Ins. Co D removed even thought the complaint did not state the
amount of damages sought. CA law forbids personal injury Ps form including such a prayer in the
complaint.
1. Ct held Ds demonstration from material beyond the complaint that the claim exceeded the jx
minimum (which p did not dispute) sufficed.

ii. Williams v. Best Buy Company D removed even though the complaint did not state the amount of
damages sought. D removed after P refused to stipulate that she did not seek in excess of $75k.
1. DC granted summary judgment for D
2. AC vacated judgment and remanded for a determination of the jx minimum was satisfied.

c. 2011 amendments: 1446c allows ds to base removal on its own assertion of the true amount subject to a hearing
on the matter in the context of a motion to remand the case.
i. A preponderance of the evidence standard for ascertaining whether the amount exceeds the jx threshold.

7. Timing for Removal


a. S 1446 (b): permits a d 30 days to file a petition to remove.

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b. If P faxes a copy of complaint to D but takes no further action for 30 days. SOL starts from date of receipt through
service or otherwise.has to be formally served.
i. Time to remove starts running from the date of the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading .
1. Murphy Brother Inc. v. Michetti Pipe Stringing Inc P faxed a file stamped copy of the complaint
to D but did not serve the D for sometime thereafter (showed time)
a. D removed within 30 days of formal service
b. Ct held: the time for removal cannot start until the d is formally served with the
summons unless notified of the action and brought under the courts authority
c. If P names 2 Ds and serves them at different times
i. Well established rule of unanimityall Ds must join in or consent to the removal of the action in order
for it to be effected. Starts with the last served D.
ii. Codified under S 1443 (b)2 A
iii. Simultaneous service: Receipt after service of summance. When you get the complaint by whatever
means then it begins.
1. Date available through filing if person has already been served.
2. Unless you have a waiver through service.

d. D does not remove within 30 days


i. S 1446 (b) permits removal after the 30 day period has elapsed based on later developments in the state
court case that make it removable if the case stated by its initial pleading is not removable.
ii. Courts usually do revive the right to remove where the development changes the character of the
litigation so as to make it substantially a new suit. Fair because willingness on part of d to remain in
state court to litigate a particular claim should not be interpreted as a willingness on his part to remain in a
state court to adjudicate a completely different claim.
iii. Addition of new claims as a new removal window only if the case stated in the initial complaint was not
removable.

8. Removal Jx should be strictly construed.


a. Congress has made certain claims non-removable to give Ps absolute choice between state and federal.

1. Steinmans Revelation
Steinman points out that 1367(b)s limitations apply to parties joined under Fedl Rules only & thus would not take
away jxn from P against counter/cross/3rd party
Parties joined in state court if same case or controversy can be properly removed
Supplemental jx should be available even though 1367a talks abof actions commenced in federal court.

9. Scope of JX in Removed Action


a. Supplemental jx should be available even though S 1367a speaks only of actions commenced in fed ct
b. S1367b which curtails supplemental jx in diversity cases as having a more limited application in removed cases
speaks only of claims by or against parties added pursuant to rules of Civ Pro.
i. Limitations: can apply only to claims asserted or proposed to be asserted post removal, does not govern
claims (counter-claims, cross-claims, 3rd party claims) asserted in a state court action

10. Joinder of Federal Law and State Law Claims


a. S 1441 c permits D to remove and entire state court proceeding if it both a federal question claim under 1331 and a
claim not within the original, supplemental, or removal jx of the ct.
b. Upon Removal S 1441 DC shall sever and remand the claims that do not fall within its original jx.

11. Remand (Only for P)


a. S 1447 permits P to move to remand a case that was not properly removed.
b. Federal court may bot remand unless the removal itself was improper.
c. Thermtron Products iv v. Hermansdorfer remand due to docket congestion in federal court not authorized.

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d. Carnegie Mellon University v. Cohill federal court that has dismissed federal claim in removed case and
determined not to exercise supplemental jx over state law claim under Gibbs may remand those claims rather than
dismiss them. Authority.
e. S 1369 Permits fed ct to remand the damages part of a case after it has determined liability.
f. Appellate review of decision to remand is difficult to obtain
i. Thermtron Products iv v. Hermansdorfer remand due to docket congestion in federal court not
authorized.
1. SC: justified over looking the barrier to review on the ground that the DC there did not invoke
the grounds for remand listed in the statute. Remand does not seem to be reviewable in
situations other than when it was based on a defect or lack of SMJ . higher ct can order you to
hear the case. Read 1447d in conjection with c. there is no appeal of remand that is grounded in
SMJ and lack of removal procedure. Can review based on other things.
ii. Things Remembered v. Petrarca as long as a DC remand is based on a timely raised defect in removal
procedure or on lack of SMJct of appeals lacks jx to entertain an appeal of the remand order under S
1447 d
iii. Kircher v. Putnam Funds Trust the ct rule that the DC had correctly characterized its remand decision as
jx and had thus reached a conclusion that foreclosed appellate review. AC can considered the plausibility
of the DC order remanding on jx grounds and may review and remand order if it concludes that the DC
court wrongly characterized its disposition as jxal.
iv. Powerex Corp v. Reliant Energy Service barring appellate review when DC remand order rested on a
colorable assertion of lack of SMJ and noting a division within the ct on the proper handling of such jx
issues.
v. Carlsbad Technology v. HIF Bio allowing appellate review of discretionary Cohill remand orders

g. If Remand is DeniedReview is not immediately available under S 1291 limiting appeals to final decisions.
i. Caterpillar Inc v. Lewis Ct held that an erroneous denial of a motion to remand is not ground for reversal
after trial if the defect in federal jx is cured before trial. If the defect has been cured before trial and
judgmentthe court will not reverse and remand even at the time the denial was erroneous.
1. When the case was initially removed there was incomplete diversity but the DC denied motion to
remand.
2. All Claims involving the non-diverse D were settled and dismissed
3. At trial the remaining d prevailed.
4. Ct held: it was a statutory flaw that was cured by the time trial began, ct concluded that it was
insufficient to invalidate the result at trial when balanced against an overriding consideration that
once a diversity case has been tried in federal court, considerations of finality, efficiency and
economy becoming overwhelming.
a. To wipe a verdict where there is no objection to the conduct of the trial would impose
an exorbitant cost on ct system.

SC; has recognized that this is kind of of a mess


Removal procedure $1446+7:
Where (Venue): Venuewhere the notice is filed where case in pending. You go to the local federal ct on remand.
When:
If P acted in bad faith then it can lift the bad lift limitation.congress wants these case moved quickly so a lot of time and effort is
expended before they are removed.

1441 C: (APPLIES ONLY IN FEDERAL QUESTION CASES)


P v. D 1) FQ 2) unrelated state law claim. On removal of such action dc shall sever and remand state claims to state ct
P v. D + D2 supplemental to fedq claimonly D1 has to remove. Sever and remand the unrelated claimswhy?? Under A3 it exends
to cases arising under federal law including fedq claims and claims that share a cNOOF. It does not embrace factually unrelated state
claims. It would exceed the judicial power of the us. Congress, did not want p to be able to block d from removing. It wanted ds to
be able to get federal questions claims heard in federal court no matter what was pleaded.

Cases based on prior version: if there was a separate and independent. Statute did not require statelaw claims being remanded to
state court. 2) gave discretion to remand on all matters where state law dominated.
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Ct can erroneously denycan be appealed after final judgment.

Robs v. Seaway (NY) + WW (NY) + Adui (GY)+ Volks (GY)---Seaway and WW are not out of the cases even though the lack of PJ in OK.
They remove. Dismissal was involuntary so they could not remove. The court could have raised it susponte but it didnt.

Teachers Update

Case: Dart Cherokee Basin Operating Co v. Owens (2014)


1. Ct considered whether a D seeking removal to fed ct is required to include evidence supporting fed jx in the notice of removal
or is alleging the required short and plane statement on grounds of removal enough
2. Ct held
a. Ordered remand based on its conclusion that the petition for removal did not allege facts sufficient to support $5
million jx amount specified by CAFA

In Federal Ct, under FQ, will use Federal Law, Constitution


In Federal Ct because of diversity jxin the past federal court were determining
Decision Act: except where the constitution or treaties or acts of congress otherwise providethe laws of the several states shall be
regarded aswhere the state law applies. Statue required fed cts to use state law for state law claims.
Erie: disregard of state common law had to stop because reasons of policy because it was unconstitutional. 1) erroneous reading of
congressional intent. 1632 didnt require them to apply state law in diversity cases 2) legitimate state interest manifest in state CL
was being ignored. 3) Because instead of it generating uniformity the opposite had resulted.
If you were a P suing a diverse D on diverse law claims.you could 1) sue in state court or 2) sue in fed ct under jx where they
would use their own version of CL. leading to forum shopping and inequitable administration of the lawssome P could chose the
body of laws that could apply to them+ it discriminated against Ps with non diverse adversaries.
1) unconstitutional: federal gvt limited enumerated powers that the state conferred in the constitution. Federal cts dont have that
authority to make law about everything no matter what the subjectinfringing on matters left to the state.

RULE OF DECISION
Practice or Procedure (Legislative) Allocation of judge/jury | Substantive Law (federal cts obligated to apply state law)
(SOL) Choice of Lawfederal ct has to use state law.
Outcome Determinative Test: 1) look from case from P just before filing suitand you ask could this law change the outcome. COL
could change the outcome and could make the P choose what court to file so it could lead to inequitable administration and
discrimination.
State required an answer within 30 days and fed court required an answer within 28 days. (perspective of before filing
because it will affect forum shopping. Matter of practice and procedure and not a matter of substances.
Ask 1) Is there a conflict? 2) Whether the application of state rather than federal law likely to affect the outcome of the
suit. 3) is there some over-riding federal interest that justifies the interest of federal law nonetheless. Policies should
inform the analysis.
Grey Area: where the SC ct cases get decided. Instinct should guide you class law.
So many things that go into filing so 2 days probably wont weigh heavily like SOL more years.

Going beyond this approachct seemed to define situations in which Federal Courts are Constitutionally compelled to follow a
state rule by looking at its purposes and polices. IF the state rules govern peoples primary activities than more like substance but
making litigation fair and efficientmatters of practice and procedure.

How does the court ascertain was the substantive law issue: 1) State constitution if no 2) State statutory law 3) Decision of the State
Highest Court. 4) Predict how the states highest court would predict the issue.looking to lower state court decision that were given
precedential decisions. (Intermediate Appellate Ct often do have precedential weight). Maybe there is dicta in SC opinions. Federal
ct do whatever state court will do. The federal court will apply the same techniques that the state court normally does .ie. looking to
scholarly stuff or other state courts. Goal: DO WHAT THE STATE SC WOULD DO IN FEDERAL CT.
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States have statutes that allow federal ct to certify questions to the state SC. FD CTS would put the question to the state SC
and get an authoritative answer.
Judge made federal lawwhether the issue is one of practice or procedure or of substantive law.

WHEN FRCP is on point. promulgating pursuant to 2072 Statutory act. SC prescribe general rules of practice and procedure
for DC. Such laws shall not breach or modify substantive rights. So long as the rules enabling it is itself constitutional and
properly promulgated.the rule is presumptively valid.

FRCP conflicts with State Law (Diversity or State law Claim): analysis 1) is the federal rule intended to govern the matter at
issue. Action is commenced by the federal of complaintmaybe just meant to be used for internal measuring purposes like when
the answer is to be filed. If it doesnt really address the issue that there is NO FRCP on poin then we are back on Federal CL and
then we do analysis. 2) Whether it conflicts with state law? Yes Was the rule properly promulgateddoes it regulate
procedure and does it not abridge or modify and substantive right. If passes test it is valid and governs over any conflicting state
law. If it was invalidly promulgated under 2072 it would be as if it didnt exisit should have federal common law and federal
analysis.
No many have been challenged or sustained.
When challenged found to be valid and upheld

This is all when FEDERAL CTS apply Federal LAW.

When Do State Cts have to apply Federal Law: If you have a federal question case filed in state courtthere is a similar division. Can
use their own practices and procedures but have to apply substantive federal law. Rules of Decision Act have nothing to do with this
line. Its really the supremacy clause that is the ultimate touchstone. IF the state court had such demanding pleading requirements it
would be too hard to satisfy and P would often be thrown out of state courts. Use federal pleading standards to judge these
complaints. Usually the court is look at federal intent.
Not any mechanism to certify questions to the federal ct .because they are forbidden by the constitution about federal
question.

THE AMERICAN REFORM EXPERIENCE


Attack on Cl pleading statement was the passage of the Code of Civil procedure or Field code
Abolished the existing forms of actions and mandated that there be but 1 form of action From the field codedifficulties
arose as the what the common facts here.
Complainta statement of the facts constituting the cause of action in ordinary and concise language
Answera specific denial of each material allegation of the complaint controverted by the D and a plain and concise
statement of any new matter constituting a defense or set-off without unnecessary repetition.

Case: Gillispie v. Goodyear Service Stores (1963)SC of NC


Facts:
1. P alleges
a. Each of 4 Ds are citizens and residents of NC
b. GY Tire and Rubber Co: corp. doing business in NC and store in NC
c. GY Service stores is a division

2. Ps Complaint
a. Ds without cause or just excuse, maliciously came upon and trespassed on her premises/residence
b. Used harsh and threatening language and physical force directed a P; assaulted P, put her in fear; humiliated
and embarrassed her by public scorn and ridicule; caused her to be seized and exhibited as a public prisoner
and confined to jail If youre the D you know that date, and occupied as a residence. Might give you enough to
answer the court. But if you were the court1) what are the claims being asserted 2) what the elements.
3. Ps requested damages
a. $25k malicious and intentional assault
b. $10k punitive damages
PP:

9
1) Trial Court Sustained Ds demurrer because P failed to state facts sufficient to constitute cause of action (demurrer like
motion to dismiss for failure to state a claim)
Issue:
1. Was Ps complaint okay/sufficient? No (just legal conclusions)
Holding/ Rationale
1. Complaint must contain
Plain and concise statement of the facts constituting a COA, facts not conclusion, those determinate of Ps
right of relief
Material, essential and ultimate facts upon which Ps right of action is based.
When just conclusions fails to state COA + is demurrable
Maybe hiding a relationship to give the ds the right to do this (maybe be on the land or other allegations).

2. Tort: violation of some legal duty by the D.complaint should state facts suff to show legal duty and its violation
resulting in injury to P
In action based on negligence, must show 1) facts which constitute the negligence and 2) facts which show
proximate cause
Parker v. White TC judge and D must know the exact right P seeks to assert or the legal wrong for which he
seeks redress before there is any trial.

3. In this Case: P alleges that D without cause or just excuse maliciously trespassed upon her premises, assaulted her,
and caused her to be seized and confined as a prisoner
Did not include: who did what, where it occurred, what occurred, or any other relevant factual data
P must make out his case according to allegations
Considered in a light most favorable to P.
Stivers v. Baker petition alleging d assaulted P but didnt have any facts about how the assault was made
just conclusion of law; ct held it to be demurrable
o Statement of facts necessary 1) enable opp party to form an issue 2) inform him of what his adversary
intends to prove 3) enable ct to declare law upon the facts stated
Shapiro v. Michelson the use of the expression assaulted is not a fact but statement which expresses a
conclusion

4. Affirms Demurrer: complaint does not state facts sufficient to constitute any COA
Concerned that p omitted things that showed that they were acting under some type of immunity.

Notes and Questions


1. 3 General Purposes for Pleading Requirements
a. Notice to D: fair that D given notice of what the P is upset about
b. Notice to the Ct: giving the ct guidelines for determining whether discovery sough or evidence offered at trial is
relevant to the case.
c. Deciding the Merits: factual basis to which the ct could apply the law. Terminate suits at an early stage. Whether
the P has asserted a claim upon which relief can be grantedif the facts can be proved they would be entitled to
relief under the law.
d. Having too many facts is better than having too few. Plead a lot of factual stuff is not likely to be thrown out for
failure to state a claim. Have been occasion where they have thrown out complaints because they were so lengthy
and undifferentiated.
e. No bright lines between Legal Conclusion|====Ultimate Facts (Elements of COA)======| Evidentiary Facts.
i. Suits would be decided on pleading failures than on their real merits.
ii. It id not use a standard of facts constituting a cause of action FRCP: statement of a claim on which relief
can be granted
2. Objective of the Pleadings
a. Ct ask whether P has adequately pled elements of the claim (defined by substantive law)
i. Assault: 1) intent to cause harm/offense contact with person OR imminent apprehension of such contact
2)person put in such imminent apprehension
ii. False Arrest/Imprisonment: 1) acts intending to confine the other within boundaries fixed 2) actor directly
or indirectly results in confinement 3) other is conscious of confinement/harmed by it
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iii. IIED: 1) Extreme and outrageous conduct 2) intentionally or recklessly results in such a confinement by the
other and 3) the other is conscious of the confinement or harmed by it.
iv. Trespass to land: 1) intentionally enters land in the possession of another and 2) remains on the land.
3. Ultimate Facts: derived from the elements of the substantive claim
4. Leave to Amend if complaint is deficient, courts will usually dismiss without prejudice and grant P opportunity to file an
amended complaint before dismissing suit.
a. In Fed Ct: sometimes cts must provide such as chance to re-pled
b. Thinket Inck Info v. Sun Microsystems dismissal without leave to amend is improper unless it is clear that the
complaint could e be save by any amendment.
c. Bradley v. Val-Mejiasit is proper to deny leave to amend if the amendment would be futile because it would be
subject to dismiss
5. Ordinarily: D was said to admit Ps well-pleaded allegations by demurring and ct would not consider anything else but rules
became a little bit more relaxed
a. Ruling on 12b6 motion to dismiss, If dc considers evidence outside the pleadingsit must normal covert motion
into a Rule 56 motion for summary judgment. Must give the nonmoving party an opportunity to respond
b. However, Ct can consider certain materialsi.e attached documents to the complaint without converting the
motion to dismiss. Even if not attached it may be incorporated by reference or the document forms the basis of the
complaint.
i. Tellabs Inc v. Makor Issues and Rightsreferring to other sources cts ordinarily examine when ruling on
12b6 motionsdocuments incorporated into the complaint by reference and matters which a ct may take
judicial notice
ii. Jones v. City of Cincinnati Ps attachment to complaint of a transcript containing D;s version of events
did not mean that P adopted ds version of events
iii. Bogie v. Ronseberg when an exhibit incontrovertibly contradicts the allegation in the complain, the
exhibit ordinarily controls, even when considering a motion to dismiss.
iv. Green v. Brown & Williamson Tobacco Co ct takes judicial notice on Rule 12b6 motion that consumers
were aware that cigarette smoking posed health risk and rejected Ps product liability claim based on the
consumer expectations test.

8 a2: intended to be more liberaleverything did not need to be included in the complaint. It didnt require the legal theory be
spelled out as long as it was inferable.

B. DESCRIBING AND TESTING PLAINTIFFS CLAIM


1. The Problem of Specificity
Rule 8(a)(2): requires only that P prove a short and plain statement of the claim showing that the pleader is entitled to
relief.
Rule 12b6: failure to state a claim upon which relief can be granted
Rule 12c: motion for judgment on the pleadings
Rule 12 e: motion for a more definite statement
Rule 12f: motion to strike portions of the pleading
Rule 13f: motion to strike
Rule 15: Right to amend
Rule 56: Motion for SJ
Dioguardi v. Durning: court reversed dismissal of an obviously home drawn complaint against the Collector of Customs for
mishandling imported merchandise because however inarticulately they may be statedthe P has disclosed his claim and
we do not see how the P may properly be deprived of his day in ct.
Resistance to the relaxed general pleadings
o Conley v. Gibson: (relaxed pleadings): P were African American members of a union who alleged that their union
maintained 2 separate locals one for white member and other for black membersblack members were afforded a
representation inferior and different to white members.
Complaint: union agreed to the abolition of 45 jobs held by Ps and the hiring of white union member to
replace them
Claimed that discriminatory action violated rights under federal Railway Labor act
11
Ds move to dismiss for failure to state a claim: didnt include specific facts about
discriminationREJECTED SC followed accepted rule that complaint should not be dismissed for failure
to state a claim unless it appears beyond a doubt that the P can prove no set of facts to support his claim.
Held:
Only require a short an plain statement of the claim that will give D fair notice

Sutliff Inc v. Donovan co heavy cost of modern federal litigation especially antitrust litigation and the mounting caseload
pressures on the federal ct, counsel against launching the parties into pretrial discovery if there is no reasonable prospect
that the P can make out a cause of action from events narrated in complaint.
DM Research v. College of American Pathologist the price of entry even to discovery is for P to allege a factual predicate
concrete enough to warrant future proceeding which may be costly and burdensome.

Case: Us v. Board of Harbor Commissioners (1977)USDC of DE


Facts:
1. Ds moved pursuant to Rule 12e for a more definite statement on the ground that the complaint filed against
them by the government is so vague and ambiguous that they are unable to frame a responsive pleading as
require by rule 11

2. Complaint alleged
a. Ds own and operate on shore facilities located on or near Wilmington Marine Terminal from which oil
was discharged into the DE River
b. Prohibited by 33 U.S.C S1321 b 3 and the owner or operator of a facility responsible for the discharge of
oil in or can be held liable for costs incurred for removal of oil

3. Ds Arguments: P 11 is too vagueFAILS TO SPECIFY


a. 1) which Ds are responsible for the alleged discharge of oil says each of them
b. 2) the amount of oil discharged + removal costs incurred statute doesnt require a specific amount ; P
may not know at this point total costs.
c. 3) actions which are alleged to have caused the discharge P probably dont know what actions caused
it.
Holding/ Rationale
1. Motion for more definite statement under Rule 12e is ordinarily restricted to situations where a pleading suffers
from unintelligibility rather than the want of detail
If the req of Rule 8 are satisfied and the opposing party is fairly notified of the nature of the claim, Rule
12e motion is inappropriate.

2. In this case
Complaint on its face can be fairly read to charge each of the ds with owning or operating on shore
facilities which discharged oil into DE river or that each of d took actions causing oil to be discharged
It fairly notifies d of the nature of the claim against them
D motion for a more definite statement was really an effort to flesh out the governments case
Evidentiary information they seek is more appropriate under Rules 26-36.
Denied motion.
D burden to prove and plead act of god/war/negligence of 3 rd party.

Notes and Questions


1. Complaint that is too long or detailed to run afoul of the short and plain statement of the claim requirement.
a. Mendez v. Draham: complaint had 1-20 numbered paragraphs in 392 pages and ct granted ds motion to strike,
would have taken superhuman patience and effort to read
b. McHenry v. Renne: the court upheld dismissal of a complaint that did set forth a claim because p refused to obey
the DC judge order that he abandon the novelized form he adopted which read like a magazine story.
c. Hearns v. San Bernarndino Police Dpt: asserting that verbosity or length is not a basis by itself for dismissing a
complaint under Rule 8a.
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d. Davis v Ruby Foodsrejecting dismissal of a cluttered complaint and holding that the most that could be done was
to strike the surplusage.
2. Could the court have required more detail
a. Acuna v. Brown and Root Inc 1,600 Ps sued over 100 ds in related cases before the DC alleging injuries due to
the D;s uranium mining activities. Before discovery, the DC ordered ps to submit affidavits specifying the injuries or
illnesses haye suffered and identity the facility though to be the source. P responded with a form affidavit from 1
expert that generally identified a series of maladies that can be caused by exposure to uranium
i. DC dismissed. AC affirmed Each P should have had at least some info regarding the nature of his injuries,
the circumstance in which he could have been exposed and bases for believing that d was responsible.
b. Feliciano v. DuBois case management order requires pro se P on plain dismissal of his suit challenging
conditions in the person he was confined to file a written submission station with at least an outline of the facts
and the legal grounds of each claim.
3. Most other countries insist on more detailed and focused pleadings.
4. Rule 12f authorizes motion to strike portion of a pleading that are redundant immaterial impertinent or scandalous
a. Atraqchi v. Williams ct strikes complain that contains the wildly immaterial delusion and pathological allegation
that these pro se ps have made about a world wide religious inquisition , illegal wire tapping by the government
and other to homo-sexualize them and convert them to this cult and conspiracy against black people.
b. Whittlestone Inc v. Handi-Craft Coholding that Rule 12 b 6 motion rather than rule 12 f motion is proper method
to challenge a request for lost profits on the ground that claim is barred by the parties contract.

2. Consistency and Honesty in Pleading


A. Inconsistent Allegations

Case: McCormick v. Kopmann (1959)AC of IL 3rd District


Facts:
1. Ps husband Lewis McCormick was killed when a truck operated by D (Kopman) collided with his automobile.
Sue both under Rule 20arise out of same occurrence and raise CQ of Fact.
2. P sued K and Hulsowners of a tavern where MC had drunk beer before the accident
a. Count 1: damages under the IL Wrongful Death Act alleged Kopmann negligently drove his truck
across the center line and collided with MC automobile and that the husband was using ordinary care
for his own safety and that of his property.
b. Count 4: (brought in the alternative of Count 1) sought damages under the IL Dram Shop Act. Alleged
that Huls sold alcoholic beverages to MC which rendered him intoxicated and as a result he drove his
automobile in such a manner to cause collision with K

3. Ks Arguments:
a. 1) TC erred in denying his pre-trial motion to dismiss the complaint because they contain inconsistent
allegation.
i. Ct acknowledges that the two complaints cannot be reconciled with each other. (Freedom
from contributory neg is a pre-req to recovery under the Wrongful Death Act)

PP:
1. Before Trial K moved to dismiss the complaint because the contradictions between count 1 and 4 were fatal
2. TCdenied motion. D motion for directed verdict was denied, jury returned verdict for $15,500 against K
3. K appealedwhere the case is now

Holding/ Rationale
1. Counts 1 and 4 are mutually exclusive and can be pleaded together (p cannot recover under both)
IL Civil practice act contains provision similar to FRCIV PROV 8d2: claims may be made in the
alternative regardless of consistency because on trial the proof will determine on which set of facts if
any the p is entitled to recover.

2. Sound Public policy weighs in favor of alternative pleading


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Controversies may be settled and complete justice accomplished in a single action
However, if pleader has knowledge of the true facts ---he knows that facts belie the alternative
---pleading is not justified. More economical to have the case go together on the whole. Might you
think he is fine when he is actually impaired.
o Church v. Adler alternative pleading is not permitted when in the nature of things the
pleader must know which of the inconsistent averments is true and which is face. P must
know whether she will be sick sore and lame for the rest of her life or whether she has
regained her health as alleged in count to. She must make up her mind and strike
inconsistent allegation from pleading.

3. In this case nothing in record to indicate that P knew in advance of trial that the averments of Count 1 and
not Count 4 were true
Key witness is deceased, pleading alternative set of facts is often the only feasible way to proceed.
P had the right to go to trial on both counts.
P does not have to choose between the alternative countsentitled to join them in a single action,
introduce all of the proof and submit the entire to case to jury with appropriate instructions.

Hypo: heard a rucus either she hit her or she didnt hit her.
Notes and Questions
1. Advantages of suing them both at the same time: substantial likelihood that each D will help the P make out a case against
the other.
2. Make allegations on information and belief asserting that the pleader is not claiming person knowledge as to these matters
although they are believed to be true.
a. Fed rules generally do not require verification but rely instead on lawyers signature on a complaint to show that it
is justified. Code parties that the had to be verified and when that could not be donecould make allegations on
information and belief which they believe it to be ture
b. Surowitz v. Hilton Hotels Corp ct examined verification req in rule 23.1. P a Hilton shareholder charged that the
officers and directors of the company had defrauded it of several million dollars. P verified that she knew some of
the allegations were true and that on information and belief she though that the other allegations were trial.
i. TC allowed D to take Ps deposition before filing their answershowed that P a polish immigrant with
limited command of English did not understand or know what the lawsuit was about; she relied on her son
in law an investment advisor for Harvard who under covered the fraud. Dismissed as sham pleading
ii. SC reversedthe record showed the charges to be based on reasonable beliefs growing out of careful
investigation
c. PAE GVT services Inc c. MPRI INC courts general receptiveness to inconsistent allegations. At time filing, parties
are often uncertain about the facts and the law dont require complaints to be verified and allow pleadings in the
alternatives.each party learns more through litigation as it progresses
d. Astor Chaufferured Limousine v. Runnfeld Invest Corp cts allow pleading I never borrowed the lawn more, it was
broken when I borrowed it, and I returned it in perfect condition
e. Smith v. Cahsland Inc D ps former employer could attempt to prove not only that P was not terminated a she
claimed but that the firing would have been justified by her poor performance. Employer should have been allowed
to try to prove a hypothetical decision to terminate based on a leg, non-descrim motive.
f. Henry b. Datyop village Incp who claimed she was fired for discriminatory reasons and was not guilty of
misconduct charged against her could argue that even if she were guilty, white employees who engaged in similar
behavior were not fired.
3. Importance in Product Liabiity Suits: ie sue everyone that worked on truck because P could not ell who was responsible and
have different theories.

14
15
B. Certification by SigningRULE 11

16
Case: Zuk v. Eastern Penn Psychiatric Institute of the Medical College of Penn (1996)US
CT of Appeals 3rd Circuit
Facts:
1. Zuk a psychologist on the faculty of EPPI had a technician film two of his family therapy sessions.
a. Had EPPI duplicate the films and made them available for rental through its library
b. Wrote a book which contained transcripts of the therapy session + copyrighted the book

2. (1980)After a change of ownership EPPI layed off Zuk who requested that all copies of the film be returned to him
a. DPPI ignored request and continued to rent it out

3. (1995) Lipman filed suit on Zuks behalf alleging that EPPI was renting out the films and infringing its copyright. 14
years?

4. EPPI moved 1) for dismissal under 12 b6 and 2) moved for sanctions under rule 11 C 2on the grounds that appellant
had failed to conduct an inquiry into the facts reasonable under circumstances and into the law.
a. DC entered motion to dismisscopyright did non extend to the films and that EPPI owned the films, EPPI use
was not infringement and Zuk was barred by SOL

5. Aug 16, 95 EPPI filed motion for attorneys fees pursuant to 17 USCA S 505
a. Ct held Lipman and Zuk: jointly and severally liable to D for counsel fees for $15k
b. Zuk settled for $6,250 leaving Lipman liable for $8,7250

PP:
1. DCdismissed action on a Rule 12 b 6 filed by D: Lipman and Zuk were subjected to joint and several liability($15k in
sanctions and D counsel fees)
a. Zuk Settled and Lipman appealed

2. APPEALSUS DC for Eastern District of Penn (Lipman): attorney for Zukwhere the case is now
a. Affirms in part and vacate in part
Issue: Could the sanctions be imposed under 28 USCA S 1927? No.

Holding/Rationale

1. Copyright Act: ct may award a reasonable attorneys fee to the prevailing party. (does not depend on showing of bad
faith) Entered only against the partyno basis for an award against the attorney.
Have to be justified under 28 USCA S 1927 or Rule 11

2. Review DC decision to impose sanctions under 28 USCA S 1927: standard abuse of discretion
Section 1927: any attorney or person admitted to conduct cases who so multiplies the proceedings in any
case unreasonably and vexatiously may be required to satisfy the excess costs expenses and attorney fees
incurred
Principal Purpose: deterrence of intentional and unnecessary delay in the proceedings.
Have to find willful bad faith on the attorney: Counsel for EPPI conceded that DC had made no finding of bad
faith
In this case TC imposed sanctions on P and counsel not because of any multiplicity of proceedings or
delaying tactics but for failure to make a reasonably adequate inquiry into the facts and law before filing the
lawsuit
Statute does not apply to facts here and statute is designed to discipline counsel only and does not authorize
sanction of attorneys client.

3. Proper Type and the Amount of Sanctions to be imposed pursuant to Rule 11. (No error with sanctions according to
rule 11)
Rule imposed a duty on counsel to make an inquiry into both the facts and law which is reasonable under the
circumstances.
Inquiry into the Fact:
o Rentals in the prior three yearsHighly probable that the Ps claim are barred by the 3 years
statute of limitations (SOL is an affirmative defenseRule 8c) 17
o Library staff was cautioned not to rent out his films. Zuk had no evidence that films were being
rented out for those 3 years.
o Dont think that further information would have been obtained during discovery.
o Needed a reasonable investigation with respect to distribution of the film during the 3 year period
prior to filling because the long period allegedly spanned the distribution
Notes and Questions

1. 1983 version resulted in too much sanction activity, deterred litigants from dropping weak contentionsmandatory nature
of the sanctions.
2. Stove Builder International Inc v. GHP Group: made the imposition of sanctions discretionary, introduced the safer harbor
in rule 11 c2 and reoriented the choice of sanction toward deterrence and away from compensation.
3. In re Pennie & Edmonds: if sanction is too sever lawyers will be deterred from making legitimate submissions on behalf
clients out of apprehension that their conduct will erroneously be deemed improper. If sanction is too lenient, lawyers
might be emboldened to make improper submission on behalf of clients, confident that their misconduct will be undetected
or dealt with too leniently.
4. S 1927: authorizes sanction for willfull multiplication of proceedings
5. Rule 11
a. Signature RequirementApplies to the person who signs the document submitted to the court, ordinarily a
lawyer and authorizes sanction against the lawyers firm. Except for discovery, rule 11 applies to all papers filed in
ct.
b. Factual Inquirythe lawyer represents that there has been a reasonable inquiry and that the claim has evidentiary
support. Calls for an objective inquiry.
i. Lichtenstein v. Consolidated Serv. Group, Inc. a party who brings a suit without conducting a
reasonable inquiry and is rewarded for his carelessness, is liable for sanctions.
ii. Garr v. United States Healthcare Inc attorney who did an inadequate prefilling inquiry should not be
shielded due to the stroke of luck that the document happened to be justified.
iii. Moore v. Keegan Management Co DC that imposed Rule 11 sanctions for failure to conduct proper pre-
suit investigation erred by refusing to consider factual evidence counsel obtained after filing suit that
would have adequately supported the complaint had it been available before.
iv. Q-Pharma Inc v. Andrew Jergens Co after the suit was filed d refused to provide information about the
contents of its hand lotion that would have permitted the P to determine that its patent was not infringed;
sanctions were denied even though P could have conducted its own chemical analysis before filing the suit
v. P may not embark on a fishing expedition by using speculative pleading then pursuing discovery to
support it.
vi. Lawyers must decide when to file when there is a factual uncertainty
1. Albright v. Upjohn Co case decided under the 1983 version of rule 11. P claimed that she had
been injured because of a treatment she received as a girl with tetracycline based drugs. Her
lawyers investigated and found medical records from 2 drs who had treated her but as SOL was
running out were unable to find records about the treatment she had received from another dr
who had since died.
a. Sued: the pharmaceutical companies who tetracycline products had been prescribed by
the 2 drs + UPJOHN a major producer of tetracycline even though they had no evidence
that the deceased dr used their products.
b. AC held that the lawyers should be sanctioned for suing Upjohn because there was no
likelihood that the additional medical record would be located. Lawyers are in a hard
place if they sue him they could be sanctioned because they dont have evidenceif
they dont sue him the SOL would have barred the claim if they later came up with
evidence. Tough situation. IF p sued Upjohn as part of the industry on enterprise liability
theoryonly use theory when drug is generic whom who the drug has came. Could
identify some of the manufactures. Improper use of that theory.
2. UY v. Bronx Municipal Hospital Center suit charging discriminatory discharged based on
national origin in which P claimed he was told he could be fired because he was a foreigner. After
Ds witnesses contradicted that assertion, DC found Ps lawyer guilty of violating Rule 11. Not
doing adequate financial assertion.
a. AC reversed. The attorney had no way of ascertain before he entered into
representation whether the ds witnesses would corroborate or contradict ps assertion.
Witnesses were unlikely to make themselves available to be interviewed by an attorney
contemplating represented the P. the only way to discover what adverse would say is
through discovery after the complaint. Some Cts dont require a factual inquiriy of the
adversary.
18
vii. Can lawyers just rely on clients words? If the facts can be easily corroborated. May be characteristics of
client of situationthat suggest to you unreliability. (ie if the client ahs memory impairment, if they have
been convicted of perjury. Including how much time you have.) What is reasonable investigation how
much time they have is the SOL about to run out.
1. Lawyers can be conned by clients
2. In re Taylor: Ct was confronted with the question of the degree to which an attorney may
reasonably rely on representations from her clients. Lawyers constantly rely on statements and
information provided by their clients. Difficult to imagine how attorneys might function were they
require to conduct independent investigation of every factual representations.
3. When is it not reasonable to rely on clients words
a. In re Pennie & Edmonds trademark case, the ct found in connection with the Ps
motion for preliminary injunction that Ds evidence that he had first used the trademark
before p had used it was false. D retained new counsel and said made a mistake in
supplying the evidence.explained that he was telling the truth submitted his affidavit.
Judge ordered ds new lawyer to show why the should not be sanctioned for submitting
the affidavit which judge said was false. Sanctions were improper because the DC
accepted the new lawyers assertion that they were acting in good faith.
b. Jimenz v. Madison Area Technical College upholding sanction on Ps lawyers who told
ct that it was his standing position to side with the client whenever a creditability call is
presented. When a lawyer property relies on the client, the client can be sanctioned
even if the lawyer committed no violation to the rule.
c. Business Guides v. Chromatic Communications magistrate did not recommend that
the law firm be sanctioned for the initial application for a temporary restraining order
however as the firm had been led to believe that there was an urgent need to act quickly
thus relied on the information supplied by its sophisticated corporate client.

viii. RULE 8 (C) : SOL is an affirmative defense, which only applies if D raises it
1. Sanctions where P lawyer did not even inquire as to whether the SOL had run or jx was
proper.serve to remind counsel to prepare adequate before filing suit.
Was it right to commit case under 12b6..safe harbor provision of rule 11 and whether it ws
pproperiate for court here to ask at oral argu if he wuld have withdrawn the complaing..ct
actual sanctions imposed were proerpt (non rule 11 basis for sacncti
c. Legal Inquiry: S 17 USCA S 411 (b) no action for infringement of the copyright in any US work shall be instituted
until registration of the copyright claim has been made
i. S 130 (b): the copyright in a compilation of derivative work extends only to the material contributed by the
authors of such work, as distinguished from the pre-existing material employed in the work, and does not
imply any exclusive right in the preexisting material. The court understood this provision to mean that the
(a derivate work or compilation) did not extend to the films which were preexisting material employed in
the book.
ii. Thornton v. Wahl failure to clarify that argument was not based on existing law can be sanctioned.
iii. Golden Eagle Distribution Corp v. Burroughs Corp no need to explain that argument is for an extension
of the law rather than based on existing law.

d. Harassment: Sanctions are warranted under Rule 11 b 1 for actions that harass or needlessly increase the cost of
litigation.
i. National Asociation of Gvt Employees Inc v. National Fed of Federal Employees we do not condone
litigation institution for the purpose of ulterior purposes rather than to secure judgment on a well-
grounded complaint the plaintiff sincerely believes. If an initial complaint passes the test of non-
frivolousness, its filing does not constitute harassment of the purposes of rule 11.
ii. Sneller v. City of Brainbridge Island p landowners sued the city when it denied them permission to
develop land within a recognized wetland, and they also sued individual city employees. D served a Rule
11 motion demanding dismissing the claims against the individual employees on the ground they could
not be sued for what the cited die and the Ps dropped those claims and file different ones against the

19
employees. Ct held that this was not sacntionable under the safer harbor . Dissent P tried to harass and
intimidate the public employees so sanctions should be allowed under Rule 11(b)(1)

e. Later Advocating: divided whether sanctions could be imposed where a party had a legitimate basis for filing
when it was made but later learned that it was unjustified.
i. Rule11b: sanction may be imposed on a lawyer for later advocating a position taken in a paper even
though no violation occurred when the paper was filed.
ii. Photometric Inv c. Economy Ins of America P sued for patent infringement and DC stayed proceeding
pending a decision by the Fed cr on the construction of the patent in issue. Federal C construed the patent
in in a way that undermined the claims ps counsel told the DC it would continue to pursue the claims. D
served a rule 11 motion demanding dismissal and counsel respond that AC decision was mistake. AC affirm
the imposition of sanctions for persisting the litigation.

f. Safe Harbor: ct may imposes sanctions on motion only if the violator has been warned and invited to desist
i. Provision was promoted by reports that parties racing rule 11 requests were reluctant to withdraw
positions for fear of strengthening the sanctions motion.
ii. Giganti v. Gen X strategies incsafe harbor not available because ps never had any intention of
withdrawing their claims.
iii. Cts have applied safe harbor req virgoursly: Ridder v. City of Springfield DC granted summary
judgment to ds when the P could not come up with any evidence supporting his allegations the city had
engage in an illegal custom or practice in a case that required such proof. A month after motion, city
moved for Rule 11 sanctions. Ct: treated the safe harbor provisions as an absolute requirement held that
the city had lost the opportunity to move for sanctions by waving until after summary j was granted to
serve its motion because ps counsel might have withdraw the claim if warned of sanctions possibly. A
party seeking sanctions must leave sufficient opp for the opposing party to chose whether to withdraw or
cure the offense voluntarily before the court disposes of the challenged contention
iv. Barber v. Miller: after Ds motion to dismiss was granted it was too later for d to ever a sanctions motion
cause counsel could not then withdraw the claim
v. Full formalities of a motion are not always necessary
1. Matrix Inc v. American National Bank & Trust Co. ds counsel set a letter to P counsel two
weeks after org complaint was filed pointing out problems with the case and asserting that the
filing violated rule 11. More than 2 years later DC dismissed case and d made a rule 11 motion Ct
held a letter informing the opposing party of the intent to seek sanctions and the basis for
imposition of sanctions is insufficient or rule 11 purposes.

6. If court decides to sanction Rules 11 c4 and 5 provide directions on what the sanction should be: Sanctions do not need
to be monetary.
a. In Re Pennie and Edmonds sanctioned firm required to send copies of the courts sanction opinion to every
lawyer in the firm.
7. Non-Sympathetic Judicial Attitude is Common
a. Rentz c. Dynasty Apparel one of the sanctioned lawyers was his first job after law school and had been following
direction from the partner for whom he work a former mayor when he signed the offending document. All
attorneys regardless of experience level or position are equally subject to Rule 11s obligation to conduct a
reasonable inquiry into the law and facts before sign the papers
8. Other Grounds for actions
a. Chambres v. NASCO IN federal courts have inherent power to sanction a litigant for bad faith conduct that has
not been displace by the more specific provision of Rule 11 and S `927 should be used rarely.
b. Need specific finding of bad faith

9. Victim of litigation misconduct of the sort that may justify rule 11 sanctions may file a separate lawsuit against the lawyer
for misconduct.
a. General Refractories Co v. Firemands Fundsholding that using legal process primarily to harass an adversary
could constitute perversion of that process actionable as abuse of process under Penn la.
b. Zamos v. Stroud: holding that a lawyer could be sued for malicious prosecution if he continued to pursue a suit
after learning that it was groundless
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Code Pleading: facts constituting cause of action.
i. Centrality of the facts to the claim
ii. Commonness of the cause (getting hit by a car injuries vs anti-trust)
iii. What one can expect P to know at time file complaint. More when have accept to information lesswhen
d controls and has exclusive access to information.
MAKE CLEAR LEGAL THEORIES. HOW MUCH SHOULD THE PLAINTIFF HAVE TO KNOW

Affirmative Defense: takes the form of yes but or even if but.even if there was a discharge I wouldnt be liable
concedes the discharge and says none the less here are the lease that I would liable.
Fedreal rules dont require verification rather signatureStock holder derivative: concerned that they were strike suits
brought for their nuisance value of a payoff rather than on their merits.

2) verification requirement also for temporary restraining order Rule 65b: p has to allege immediate and irreparable
home. Effort to deter people from trying to deter others.

Many states still have verification requirements for divorce and liable where motive to be untruthful or sucestiple for use
as harassment or embarrassment. You can plead fed rules on information and bleifrelying on what 3 rd parties have told
them. Lack of knowledge does not equate to lack of good faith.

3. Scrutinizing the Substantive Sufficiency of Plaintiffs

Case: Mitchell v. Archibald & Kendall Inc. ( 1978)US Ct of Appeals 7th Circuit
Facts:
1. Mitchell, his wife, and 2 grandchildren drove a truckload of A+K products from NJ to Chicago at A and K
warehouse.
a. But when they got there another truck was unloading at the dock.
b. Mitchell was told by A and K employees to park the truck on the adjacent street, Fulton, until it was
available
c. 2 men approached him and demanded his money, when he said no, one men produced a 12 gauge
shot gun and shot him in the face (3 ft away)blast caused permanent injuries to his face.

2. Mitchell argued that A and K knew or should have known of the high risk of drivers being subjected to a
criminal attack and assault while parked because there was an armed robbery 3 weeks earlier.
a. Mitchells had no knowledge or means of becoming aware of the inherent, risk, dangers, and
probabilities of criminal assault.
b. Complaint set forth five duties which A +K breached
i. Duty to exercise ordinary care to maintain its premises and adjacent areas in a reasonably
safe condition so as to avoid leading Mitchell into a dangerous and perilous risk of injury by
criminal conduct of 3rd parties which they were aware
ii. Duty to exercise reasonable care to provide a reasonable safe means of ingress and egress to
the areas owned by A=K and beyond precise boundaries.
iii. Duty to exercise reasonable care to protect them from criminal acts of 3 rd persons while on
A=K premises and beyond such boundaries to provide a sufficient number of servants or
employees to afford protection to invitees
iv. Duty to give adequate and timely notice of warning of latent or concealed perils which were
know to A=K but not to them
v. A+K duty to keep its premise and immediate adjacent area reasonably well policed and to
exercise reasonable care
PP:
1. DC: dismissed Mitchell claim 12 b6 failure to state a claim for which relief can be granted.
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Issue:
1. Whether the owner/occupier of land has a duty of reasonably guarding an invitee against criminal attack that
take place beyond the boundaries of his premises on a public street? No

Holding/ Rationale
1. Claimed error in DC Use of Rule 12b6 (not really)
DC found that Ps injuries occurred not on Ds property but on a public street.
Mitchell claims that the complaint alleges sufficient facts to support the allegation that the area of
fulton street is part of A+K premises.noting that premises does not have one fixed and precise
meaning
Ct says where pleadings raise a contested issue of material fact, 12b6 must be denied.
o Ct is only required to accept only well pleaded facts as true
o DC properly relied on 12b6.
o Ps argument that a jury could find that street area was part of A=K premises sets forth a
new theory of liability. (not part of complaint)

2. Procedural Irregularity
When order dismissing the complaint was entered the Ps would have an an absolute righ t file an
amended complaint embodying the claimed theory that the public street was part of ds premises
BUT by appealing, the P;s elected to stand on their original complaint and relinquished the legal
theory they now assert.
Surrounding streets and sidewalks are beyond meaning of premises.

3. Duty to Protect Against Criminal Acts of 3rd Persons on Public Streets


Ct is applying IL law.
In Neering Owner of land owes a duty to invitees on his premises reasonably to guard against
criminal acts of third parties when he has knowledge of them
Ct had to determine if A+K had a duty under the circumstances in the complaint .
2nd RST of torts: Mitchell was an invitee but there was no duty because he was not on the land.
Dissent (Fairchild) :

1. Doesnt disagree that no duty is owed to P on public streets


2. When D ordered him to remain in his truck and park it on a street which knew or should have known that P
would be in danger of criminal acthad affirmative conduct.
3. Affirmative conduct greatly increased the risk of harm to the P and created a duty on the D to warn P of
danger or direct P to a place of safety until the delivery could be mage.
a. Affirmative conduct creates a duty to exercise reasonable care is recognized by 2 RST of torts

Notes and Questions


1. Sometimes lawyers include a lot of detail even though they know they risk dismissal.
a. Jackson v. Marion County If Ps lawyers want to live dangerously or want to find out sooner rather than later
whether they have a claim they cant.
i. Discovery is often expensive and sometimes have an early ruling on whether their legal theory will satisfy
the judge can save money.

4. Heightened Requirements for Specificity

Case: Tellabs, Inc v. Makor Issues & Rights ()--SC of the United States
Facts:
PP:
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Issue:

Holding/ Rationale

Notes and Questions

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