Civil Procedure Unit 2: Mechanics & Ethics of Answering

Lecture: Zuk v. Eastern Pennsylvania Psychiatric Institute of the Medical College of Pennsylvania
A. Code pleading: old form. CA is code pleading state
a. Move from Code to FRCP (federal pleading, notice pleading) was to simplify things
i. Intention was to eliminate fact pleading to avoid fights about what was a fact vs. legal
conclusion
1. Twombly and Iqbal suggest a move back to this (facts that plausibly assert the
existence of a claim)
b. Code pleading is “fact pleading” (must plead facts statin-g a cause of action, as opposed to short
and plain statement)
c. Demur: move to dismiss (exactly the same, just a terminological difference)
B. Higher Burdens—Why up the pleading standards?
a. Claims not meritorious
b. Disfavor certain claims (less valuable than others)
c. EX: federal securities law claims
i. If you sue a corporation on this, you have to meet burden of “a strong inference” that
the corporation knowingly lied to you
ii. BC congress sees these claims as generally not meritorious
iii. Fairness policy
C. Rule 11: sanctions for filing frivolous lawsuits
a. Continuing obligation—“by signing, filing, submitting, or later advocating”
b. First requirement: a signature is required for anything filed with the court
i. Fail to sign, court must strike
c. Signature certifies that the person filing has done a reasonable investigation and affirms that, to
the best of her knowledge, the paper has
i. Proper purpose
ii. Legal merit
iii. Factual merit
d. If a party thinks an action against her is frivolous, file a motion for sanctions (Rule 11 (c) (2))
i. Separate entirely from the dispute
ii. Must state specifically how they violated Rule 11 (b)
iii. Party must wait 21 days to file with the court after giving notice to the attorney. Gives
attorney a “safe harbor” chance to amend the complaint or drop it entirely
iv. If court finds a violation of rule 11, it doesn’t necessarily have to impose a sanction.
(“may impose an appropriate sanction”)
1. Nature of sanction: level of sanction should be justified on a deterrence
perspective
a. In that way, a person’s resources could be taken into account
D. Zuk v. Eastern Pennsylvania Psychiatric Institute of the Medical College of Pennsylvania
a. P: Dr Zuk
i. Employee, created therapy videos that the institute made available for rent in the
library. Writes copyrighted book containing the transcripts of the videos. Furloughed,
asks library to not rent the videos anymore, waits 20 years to sue
b. Copyright case critical elements
i. Must prove the material is really protected by federal copyright law
ii. Some kind proof of infringement (prove the tapes were distributed after copyright was
obtained)
iii. 3 year statute of limitations
c. Trial court
i. Institue files motion to dismiss, granted
ii. Court imposes sanction under rule 11 and 28 U.S.C. § 1927, $15,000
1. Zuk and Lipman (attny) held jointly liable
2. Zuk settles his portion, Lipman appeals
Civil Procedure Unit 2: Mechanics & Ethics of Answering

d. Appeal: was lawyer properly sanctioned?

i. 28 USC required “bad faith,” which they determine Lipman did not have, so it wasn’t
applicable
ii. Trial court did not define how much sanctions under each of the charges so they were
forced to vacate the sanctions
iii. Reversed
iv. Also gives advice on appropriate sanctions under Rule 11—rethink that amount
e. 28 U.S.C. § 1927 not applicable—no bad faith
i. This sanction is more serious. Likely reported to the Bar. Potentially a career ender
ii. Lipman had never filed a copyright case before, young and inexperienced
iii. Small stakes suggest it wasn’t too necessary to do a lengthy investigation, maybe
reasonable under the circumstances
iv. He probably tried… responsiveness to motions suggests he was attempting to play by
the rules
f. Rule 11 applicable
i. Two violations: claim is not well founded in the law AND it lacks evidentiary support
ii. Copyright was for his book, not for the videos
1. Zuk: words spoken on the videos were printed in the book. Once I got the
copyright for the book it should act like a retroactive copyright
2. Court: na na na
a. Copyright of a work with replication in it does not alter the status of
an original work that is or is not copyrighted
iii. Frivolous
1. Reasonable investigation would have brought you to this statute and you
would have concluded that the claim lacks merit
2. Court says Zuk could have argued replication law may have been intended for
only for people who were replicating someone else’s work. Perhaps the statute
is only intended for that and should protect those who replicate their own
work(matter of first impression—no precedent on this subject)
a. But Lipman didn’t even understand his own best argument, very
brought this forward
Lecture: Rule 11 and Responding to the Complaint
A. Zuk
a. Key Elements
i. The tapes were copyrighted
ii. D infringed by lending
b. Lower Court: both lawyer and client sanctioned
c. Appeal
i. Award of attorney’s fees because of copyright act, but those are only applicable to the
client, not the attorney
ii. 28 USC § 1927 can sanction attorney but requires bad faith, not warranted
iii. Rule 11 applicable, violated because of both the legal claim of copyright and the factual
element of lending
iv. Signature as certification that claims are warranted and non-frivolous
v. Basic research would have led Lipman to realize copyright law was not applicable to
reproduced materials
vi. Alternative arg he should have put forward: intent of statute was not designed to apply
to reproduced materials of the same owner
1. First impression case
2. Court says if this argument had been presented it probably would not have
been frivolous
Civil Procedure Unit 2: Mechanics & Ethics of Answering

d.Why would you want to treat an argument that had never been presented before with more
leniency?
i. If you are clear that your argument interprets a statute in a new way, shows the court
that you are acting in good faith
ii. Knowing the weakness of your case demonstrates that you did a thorough investigation
iii. Helps lawyers present arguments that promote the evolution of the law free from fear
of sanctions
iv. If you want to present a new argument, and there isn’t any precedent, what would you
do?
1. Research thoroughly to ensure there truly aren’t any prior cases presenting this
argument
2. Consult secondary sources
a. Scholarly articles
b. Professional field resources
c. Policy arguments
3. Demonstrate that your claim is well researched
4. Be candid about why your claim may not be valid
e. You may not have evidentiary support for your claim (as in the lending in Zuk) but you can still
claim as long as it is reasonably likely that evidence would come out in discovery
B. Why no safe harbor?
a. You should get 21 days to fix your problem but lawyer waived this
i. Case was already decided so he didn’t amend
ii. Often this serves as a protective barrier for attorneys
iii. He should have said, “hey, I didn’t get my 21 days,” but when in oral argument when
asked about it he said, “I wouldn’t have used it”
C. Reversing the sanction
a. Designed to deter $8,000 sanction is overly punative
b. Personal income should be taken into account
D. Rule 12
a. Initial decision when you receive a complaint: move or answer
b. If motion, Rule 12 governs. Esp Rule 12 (b)
c. Motion for judgment on the pleadings, like motion to dismiss for failure to state a claim but
comes after an answer is filed
d. Courts rarely grant 12(e) motions. Usually either dismiss under Twombly or compel D to answer
e. 12(f) = motion to strike. Granted when not relevant and prejudicial. Also unusual
f. Most important is 12(b)
E. Motion or answer?
a. Goal is to not inadvertently loose potential defenses, which all depends on the waiver rules
Lecture: Rule 11 Defenses
A. 2-5 are wrong place or you didn’t tell me
a. E.g. subject matter jurisdiction—this case belongs in state court. The only non-waivable defense
B. 6 failure to state a claim
C. 7 fail to join a party under Rule 19 (wrong court—you haven’t sued someone who you should have and
that person cannot be sued in this court)
D. Penalty for failing to raise these defenses is that they are no longer available to you
a. Protection of court from wasted effort
b. Defendant should know from the beginning the facts and what defenses are applicable
c. Fairness to plaintiff—about to invest money in litigation. Should know at the outset if he is going
to be wasting his money
E. Exercises on page 685—B
a. Plaintiff would win motion to strike
b. Rule 12 (h) (1) (A)
Civil Procedure Unit 2: Mechanics & Ethics of Answering

i. Venue defense was waived because it was omitted from the first motion
F. C
a. Original answer did not make a motion under Rule 12 which makes 12 h1A inapplicable,
however, 12 (h) (1) (B) says if this defense is not included in the responsive pleading or in an
amendment under 15 (a)
i. Rule 15 (a) (1): amendments must be
1. Within 21 days
2. Or if a responsive pleading is required (not this case, usually required in an
affirmative claim or counter claim), 21 days after service
b. So, this scenario depends on how many days it has been since service (if less than 21, ok; if more
than 21 then defenses 2-5 under 12 (b) are waived)
i. Waives 12 (b) 2-5 but not 6 or 7
G. D
a. 12 (h) (3)—suggests judge has duty to inquire
b. Subject matter jurisdiction can never be waived. It’s always alive even if no one has raised the
issue. Can even be raised on appeal
c. Goes back to the limited power of the federal courts on states
H. Answers
a. Things in a complaint
i. Statement of subject matter jurisdiction
ii. Short and plain statement showing the plaintiff is entitled to relief
iii. Request for relief
b. Things in an answer
i. Admit or deny plaintiff’s statement of claim (is he entitled to relief?)
ii. Defenses (e.g. failure to state a claim, subject matter jurisdiction, all the other ones
under Rule 12 (b))
iii. Affirmative defenses (even if what D says is right, I should win because of this other
reason—e.g. in Gomez v. Toledo, D said his good faith was an affirmative defense)
1. Burden of proof lies with D (must prove the affirmative defense is true instead
of P proving it is false)
iv. Counterclaims (basically a complaint tacked on to the answer alleging unlawful conduct
of P)
v. Admissions
1. Jury does not have to hear any proof on the issue
2. Court does not have to allow any discovery on the issue
3. Jury doesn’t deliberate, is told that the issue has already been decided
4. EX: D was drinking, admits he was negligent to avoid jury outrage when they
find out he was drinking because he chose to litigate the issue
a. P could amend his complaint and say D was reckless, which would
entitle him to sue for punitive damages. Even if D admits recklessness
you could still put forth the argument that the jury should hear just
how reckless in order to determine damages
5. Two ways
a. Expressed admission—“D admits the allegations of paragraph X”
b. Lack of response—if you fail to respond to an allegation, it’s taken as
an admission
vi. Denials
1. Puts plaintiff to his proof, puts the allegation “in issue”
2. Makes it proper for discovery
3. Plaintiff must prove it to a jury (or to a judge if summary judgment is
applicable)
4. Distinction between “truth” and “proof”—reasonable evidence to convince a
jury
Civil Procedure Unit 2: Mechanics & Ethics of Answering

5. Also two ways—see Rule 11

a. Outright
b. For lack of knowledge or information available to form a belief (“Prove
it, P”)
Lecture: Example Scenarios
A. You represent the defendant in an auto collision case. The complaint asserts that the light was red and
that the defendant went through it. You have interviewed several witnesses who agree that the light was
red, but your client adamantly asserts that it was green in his direction. How should you respond to this
allegation in the answer?
a. Denial
b. Burden of production and persuasion is on the plaintiff
c. Rule 11 (b) (4) denial is warranted on the evidence. My client’s testimony means I am able to put
it forth as evidence. Desirable because admission would make it not available later at trial.
Worthy of consideration by the jury
d. When there is conflicting evidence, the Rules want you to deny so that all the evidence can be
heard
B. Same case, but the plaintiff asserts that the defendant has not had his car serviced for the past two years.
The defendant admits that it is true, but says (accurately in your judgment) that the plaintiff will not be
able to provide that it is true. How should the answer respond to this allegation?
a. Rule 11 (b) (4) “the denials of factual contentions are warranted on the evidence”
b. Ethical obligation to not deny
C. Same case, but the complaint alleges that the plaintiff was driving “well within” the speed limit (an
important fact for establishing his lack of fault). Defendant has no reason to disbelieve that this is true,
but did not actually see how fast plaintiff was driving. How should the answer respond to this allegation?
a. Denial based on defendant needing more opportunity to see what the plaintiff has against him
D. Same as c. except that a witness you have interviewed says that the plaintiff was driving at less than the
speed limit
a. Denial
b. No opportunity for cross examination, etc.
E. Under what circumstances can you submit a general denial to a complaint—that is, to simply say:
defendant denies each and every allegation of the complaint, without referring to individual allegations
specifically?
a. Denying each allegation in the claim is only warranted
F. Ammendments
a. Only at the beginning of the proceeding
b. Desirable because it brings the case closer to reality
c. Undesirable because it can extend trial out
d. “Relation back”
i. Date of incident
ii. Date of first filing
iii. SOL runs
iv. Date of second filing
G. Relation-Back
a. Sometimes you want to change certain things in your plead
i. Say you don’t know the D’s names, only an organization they work with
b. Requirement
i. Ammendment ree. or derJerr
c. Must be straight forward