9-26-02

Question: does relation back [15(c)] have to be met only when S/L has run, or does that
apply to all amendments?
Question: if you raise a defense in a pre-answer motion, can you raise it again in your
answer?
Question: does who, what, where, and when apply to averring generally, specifically, or
both?
1. Being explicit
a. X Y (Inference: Facts Conclusion)
b. Identify exceptions (the more there are, the weaker the premises)
c. Identify especially whens to cut off exceptions
d. Multiple chains:
i. Start 2nd inference of a chain w/the conclusion of the 1st inference to avoid
logical gaps
ii. The more chains there are, the weaker the inferences
2. Burdens
a. Burden of productionmust produce evidence establishing prima facie case
b. Burden of persuasionmust persuade jury
3. Standards of review
a. Clearly erroneous
b. Prejudicial mistake of law
c. Abuse of discretion
4. Relief
a. Monetary damages
i. Statutory damages
1. Interest (depends on whether claim is liquidated or not), starting from
accrual of debt
a. Liquidated
i. Suing for amount ascertainable @ beginning of suit
ii. E.g. someone refused to purchase equip from you for $100K
b. Unliquidated
i. Suing for amount ascertainable @ beginning of suit
ii. E.g. personal injury suit requires testimony on length & type of
suffering
ii. Liquidated damagesparties agree, ahead of time while forming k, that if
there is a breach, damages will be $X. If P wins, doesnt have to prove what
damages are if liquidated damage clause is valid
iii. Punitive damagesusually for willful/malicious conduct. Since Ds wealth is
valid in considering punishing effect of punitive damages, it is discoverable.
Court must consider likeliness of P recovering punitive damages before
allowing P to discover Ds wealth.
iv. Attorneys fees
1. Hourly fees, flat fees, contingent fees

2. Rule is that each party bears responsibility for compensating own lawyer.
Rule crumbles when due to k, statute, or common law, prevailing party or
prevailing P entitled to attorneys fees
v. Court costs
1. Filing fees, depositions, service of process, jury
2. Not recoverable: investigator, expert witness, photocopying
b. Specific relief
i. Injunction
1. Sigma Chemicalcourt enjoined D from working for & disclosing trade
secrets to new employer b/c harm of not granting injunction > harm of
granting it. Cant determine how much $ P will lose, so monetary
damages inadequate
ii. Specific performancemake party abide by terms of k
1. TRO
2. Hearing
3. Preliminary injunction
4. Final trial
5. Judicial systems
a. Adversary systemjudge holds in suspension what he believes until hes heard
from both sides; starts off neutral
b. Magistrate systemjudge can be prejudiced from beginning of his investigation
6. Pleadings (in general)
a. Whats a claim? Any legal theory that grows out of the transaction set forth in the
complaint.
b. Rule 7(a) Whats a pleading?
i. Complaint, answer, reply to counterclaim, answer to cross-claim, third-party
complaint, third-party answer. Not motions.
c. Rule 8(e)(2): if 2 or more statements of claim or defense set forth alternatively,
only one needs to be sufficient to survive 12(b)(6)
d. Rule 11 deals w/what you know about the complaint
i. Rule 11(b) Representations to the Court
1. 11(b)(1) Improper purpose
a. Harassment, unnecessary delay, or needless increase in cost of
litigation
2. 11(b)(2) Assertions
a. Assertions must be warranted by:
i. Existing law OR
ii. Nonfrivolous argument for change in existing law or est. of new
law
b. How do you know if suit is frivolous? If a competent attorney
wouldve found that there was no basis for it after a minimal amount
of investigation
3. 11(b)(3) Reasonable Evidentiary support
a. Allegations & factual contentions must have:
i. Evidentiary support OR

ii. Are likely to have evidentiary support after reasonable opportunity

(must specify this)
1. Reasonableness factorscan you do inquiry:
a. Cheaply?
b. Quickly?
b. Steps:
i. What evidence do I have, & what is the likeliness that I can get
evidentiary support for it?
1. How much time do I have?
2. How reliable is the client (prior dealings, plausibility)?
3. Do we have evidence (hearsay?)?
ii. Do I have to do anything further to conduct a reasonable inquiry?
1. What are the other sources of evidence out there? How easy &
expensive would it be to get them?
2. How much time is there left to file?
ii. Rule 11(c) Sanctions
1. 11(c)(1) Safe harbor provision
a. Motion for sanctions cant be filed under 21 days after its served on
opposing sidegives offending party 21 days to withdraw paper
b. D has only 20 days to answer if served. Should do motion 12(b)(6),
then 11(b)
2. 11(c)(2) Nature & limitations of sanctions
a. Court may impose sanctions to deter improper conduct
b. Bridges v. Dieselcourt declined to impose sanctions b/c prime goal
is to deter improper conduct, which was not necessary in this case b/c
Ps counsel made honest mistake (immediately tried to rectify
situation)
c. Business Guides casecourt imposed sanctions on law firm b/c
should have inquired into seeds when client withdrew 3/10 claims
(failed take advantage of reasonable opportunity for further
investigation & discovery under 11(b)(3). Rule 11(b): by later
advocating the pleading, it was pressing point that was obviously
wrong
d. Clients cant be sanctioned unless filing in pro per (representing self)
e. Rule 12(f) Motion to strike
i. Court may strike any insufficient defense or redundant, immaterial,
impertinent, or scandalous matter from a pleading
f. Rule 15 Amendments
i. Amendments can be made to both complaints and answers
ii. Motions to amend can be made at virtually any time, even during trial, unless
following factors are met
iii. 15 (a) Can amend once before responsive pleading is served, within 20 days of
serving pleading when responsive pleading not required, or when justice so
requires
1. Beeck v. AquaslideJustice requires amendment when there is not:
a. Bad faith (allowing trail to get cold; intentionally misleading P)

i. E.g. Aquaslide decides not to investigate if slide is theirs, even

though there have been a bunch of bogus cases, b/c expensive to
investigate & they always win on contributory negligence anyway.
This isnt bad faith b/c not trying to mislead Ptrying to save time
& expense.
ii. E.g. P requests to add another D that will destroy diversity (b/c so
far, things havent been going well in fed court). If court is
suspicious that D is being added merely to oust fed court of
jurisdiction, it will not allow P to add another D.
iii. E.g. President of D ladder company is also president of actual mfr
of ladder. Intends to not tell P that other co. is true mfr until after
S/L runs. If P finds out 2 mo. before S/L runs, court will probably
grant leave to amend for D despite its bad faith, b/c no prejudice to
PP can still go after actual ladder co.
iv. If the insurance company acts in bad faith, it is attributed to the
party (D) b/c its the one who pays
b. Dilatory motiveessentially the same as bad faith (intentionally
delaying case in order to disadvantage other side)
c. Undue delayunreasonably delaying progress (negligence standard,
not intentional standard)
i. E.g. Aquaslide investigates slide after S/L runs, even though aware
of bogus slides & not expensive to do so undue delay
ii. E.g. Aquaslide reasonably relied on insurance adjuster & model #
seemed like it was their slide not undue delay
d. Prejudice to opposing party
i. Burden of proof on opposing party to establish prejudice
e. Prejudice to moving party
i. Prejudice to Aquaslide b/c dont know who real mfr is
distinguish from PPI b/c not same insurance carrier
2. Review standard is abuse of discretion
iv. 15(c) Relation Back of Amendments
1. Can amend pleading even if S/L has run if it relates back (dont forget it
also has to meet 15(a) though)
2. Amendment relates back when it arises out of same transaction
3. Concern w/similarity of evidence & facts, not legal theory
4. E.g. If Parro had only sued for breach of k, could amend to include fraud
after S/L has run b/c arises out of same transaction (both actions involve
offer of job & discussions w/Davis)
5. E.g. P alleged being wrongful termination (was told his work wasnt
adequate, but claims it was). S/L runs. Now P wants to amend to allege
civil rights violation. Can amend b/c D researched why fired (talked to
managers, supervisors, & employees)same transaction, although
different legal theory.
6. 15(c)(3): can amend name of defendant if it
a. Received notice of the action so that it wont be prejudiced in having
to defend the action AND

b. Knew or shouldve known that but for a mistake concerning the

identity of the proper party, it wouldve been sued
7. File complaint
a. Proper court
i. Subject matter jurisdictiondoes court have power/authority to hear case?
1. Rule 12(b)(1): motion to dismiss for lack of jurisdiction over subject
matter. If there is a dismissal, its not a judgment on the merits P can
refile in state court
2. Federallimited jurisdiction, set by Congress
a. Article III, Section 2
i. Federal question
ii. Diversity
1. Diversity at time suit is brought
a. 28 USC 1332: matter in controversy > $75K, exclusive of
interests & costs
b. 2 prong test
i. Residencyphysical
ii. Intent to remain indefinitelymental
2. Ps burden to establish diversity
3. Gordon v. Steelecourt held that there was diversity b/c P from
ID& Ds from PA.
4. 28 USC 1332: Corporation can be citizen of 2 states:
a. State of incorporation
b. State of principal business (principal place can be where
execs are, where theres highest volume of businesses, etc.)
iii. Citizens of same state but claiming land under grants of different
states
b. Supplemental jurisdiction: state law claims can be appended to federal
law claims
c. Erie v. Tompkins: federal courts apply substantive state law and
procedural federal law to state law claims (substantive state law b/c
dont want forum shopping)
3. Stategeneral jurisdiction (mostly anything, except domestic relations,
etc.)
4. Court must dismiss for lack of jurisdiction sua sponte
ii. Personal jurisdiction
iii. Venue where within a state that has personal jurisdiction should a suit be
filed
b. Proper statement of the claimcomply w/Rule 11(b)(2) & avoid Rule 12(b)(6)
i. How do you know if you can file a complaint? Ask yourself:
1. Are there defects on the face? Do the defects produce an 8(a)(2) or 9(b)
problem?
a. If there is a problem w.r.t. missing elements [8(a)(2)], can it be solved
by the inference test?
b. If there are 9(b) problems, what are they & how significant are they?
2. What abut 11(b)(3)is there evidentiary support or likelihood of it?

3. What further inquiry, if any, is necessary in order for you to comply w/the
reasonable inquiry requirement in 11(b)?
ii. Rule 8(a): governs what must be on face of complaint
1. 8(a)(1): must cover courts jurisdiction
2. 8(a)(2): must cover nature of claim in short and plain statement
a. Notice (federal) pleading
i. Inference test (test of adequate notice)
1. Complaint must contain either direct allegations on every
material point necessary to sustain recovery OR
2. Contain allegations from which an inference may be drawn that
evidence on these material points will be introduced at trial
ii. Hypo: Ps complaint alleging breach of k doesnt state
performance, an element. Can argue that performance cant be
inferred. Can also argue that you can infer P will proffer evidence
of performance b/c he entered into k & is suing for breach.
iii. Inconsistency permitted b/c since discovery hasnt done, you might
not know which legal theories apply (e.g. auto accident, in which
you were rendered unconscious)
iv. If youre D, try to figure out what Ps factual allegations arewhat
inferences can you make? Inferences must be from complaint, not
what client says!
b. Code (CA & NY) pleading
i. Requires statement of elements & corresponding facts. Missing
element demurrer
ii. Not supposed to plead all evidence or all conclusionsotherwise
demurrer
iii. Demurrers make sense when, given the facts, there is no
cognizable legal claim (e.g. hitchhiker suing you for not picking
-him up)
3. Difference between Rule 11 & Rule 8(a)(2): 11 governs knowledge behind
complaint and 8(a)(2) governs face of complaint (duty to investigate vs.
duty to notify)
a. Your client emails you & asks you to file complaint for him, alleging
that a truck ran into him and that he got hurt last week:
i. You file a complaint and allege all elements right away. Youve
violated 11 b/c but not 8(a)(2) b/c havent conducted investigation
& not necessary to file so quickly (if necessary to file quickly, e.g.
S/L was going to run, would not have violated 11 as long as you
dont have reason to be suspicious of client)
ii. You question client for an hour & see police report on incident, and
file complaint thats missing an element. Youve violated 8(a)(2)
but not 11, b/c didnt give D fair notice
iii. Rule 9 Pleading Special Matters
1. 9(b) Fraud, mistake, condition of mind

a. Elements not relating to state of mind should be stated w/specificity.

Those relating to state of mind may be averred generally b/c P doesnt
know Ds state of mind until after discovery.
b. Fraud elements (*averred generally, ** averred specifically)
i. Making of a statement**
ii. Statement false when made**
iii. D knows when making statement that its false*
iv. D made statement to induce action by P*
v. P justifiably relied on statement*
vi. As a result of Ps reliance P is damaged**
c. State who, what, where, when (not why b/c that goes to state of mind):
E.g. <who> told <what> on <when> at <where>
d. Look at claim under 8(a)(2), then under 9(b) [9(b) under 8(a)(2)]
iv. Rule 12(e): motion for more definite statement
1. Bell v. Novickcourt declined to grant Ds motion to dismiss for more
definitive statement b/c should have found info himself through discovery
2. Complaint doesnt have to be detailed b/c dont want to mislead D under
limited discovery
a. Oftentimes, defendant knows more about details than plaintiff
b. Too many details obfuscate
c. If you have to file a complaint, might not know details
v. Can use forms in rule book, even though complaints are usually more elaborate
c. Adequate factual basis for the claimcomply w/Rule 11(b)(3)
8. Serve complaint
a. Rule 4
i. Summonsformal
ii. Mailinformal. D waives service of summons
b. Rule 12 Defenses
i. 12(a)(1)(A): SummonsD must answer within 20 days after being served
ii. 12(a)(1)(B): MailD must answer within 60 days of sending waiver
9. Ds responseoptions:
a. Rule 12(b) (pre-answer) motion
1. Only 12(b)(1)-(7) can be in pre-answer motion:
a. 12(b)(1) lack of subject matter jurisdiction
b. 12(b)(2) lack of personal jurisdiction
c. 12(b)(3) improper venue
d. 12(b)(4) insufficiency of process
e. 12(b)(5) insufficiency of service of process
f. 12(b)(6) failure to state a claim upon which relief can be granted
i. Missing element does not automatically mean dismissal under
12(b)(6)
ii. Must presume everything in complaint is correct for purposes of
12(b)(6)
1. If youre D and Ps complaint states causes of action but no
facts to back it up, cant move for 12(b)(6) b/c of presumption
that everything in complaint is correct

2. Hitchhiker says you made him get out of your car, putting him
in danger. Police report refuting this. You cant move to
dismiss under 12(b)(6) b/c police report not in complaint.
iii. If youre D and Ps complaint doesnt state all elements or look
like itll survive inference test but you think there is adequate
evidentiary support, you can file for 12(b)(6) b/c its whats on
complaint that matters. However, might get sanctioned under
11(b)(1) for unnecessary delay or by 11(b)(2) b/c not warranted by
existing law, which is 8(a)(2), which can be satisfied by inference
test
g. 12(b)(7) failure to join a party under Rule 19
2. Never reach the merits of the caseno point in getting to merits if one of
these defenses exists (thats why you can raise them in pre-answer motion)
3. Appear before judge 3-4 weeks lateronly make pre-answer motion if
prepared
4. 12(h) Waiver or Preservation of Certain Defenses
a. 12(h)(1)
i. Some pre-answer motions [12(b)(1)-(5)] must be made at same
time, or theyre waived (lack of personal jurisdiction, improper
venue, insufficiency of process, insufficiency of service of
process). These dont include failure to state a claim upon which
relief may be granted [12(b)(6)]
b. Answer
i. Every defense in a pre-answer motion can be in an answer
ii. Appear before judge 90 days laterput 12(b)(1)-(7) defenses in answer if need
more time for discovery
iii. Rule 8(b) Defenses; Form of denials
1. D must admit whats true in Ps complaint and state what he denies. If he
doesnt have knowledge or info sufficient to form a [subjective] belief, he
should so state
2. Purpose is to expedite things so that P doesnt have to prove everything
3. Zielinski v. Philadelphia Piers Inc.court said that PPIs general denial of
owning forklift was insufficient and in violation of 8(b), so had to defend
as if they did on it (arguably fair result b/c same insurance company for
both PPI and CCI, so have same evidence & same effect)
iv. Rule 11(b)(4) Denials of factual contentions
1. Denials of factual contentions need to be reasonably based on lack of
information or belief
2. This means that theres a greater obligation for defense to investigate
before filing answer than if only 8(b) was in existence
v. Have to look at 8(b) and 11(b)(4) in determining what you can put in your
answer
vi. Rule 12(h) Waiver or Preservation of Certain Defenses
1. 12(h)(1)

a. What if you file an answer that doesnt include a certain defense [12(b)
(1)-(5)]? You can amend your answer & raise the defensepermitted
by 12(h)(1). 15(a) says you can amend it in 20 days.
2. 12(h)(2)
a. Can omit defense of failure to state claim w/o danger of waiver b/c can
be made by motion for judgment on the pleadings or at trial on the
merits
3. 12(h)(3)
a. Can omit defense of lack of subject matter jurisdiction w/o danger of
waiver b/c can be dismissed for that purpose at any time
c. Affirmative defenses
i. Rule 8(c) Affirmative defenses
1. All affirmative defenses have to be set forth in answer
2. Inclusive list, not conclusive list: assumption of risk, contributory
negligence, duress, fraud, S/F, S/L, etc.
ii. Rule 11(b)(3) applies, not 11(b)(4) b/c an affirmative defense is a factual
contention, not a denial of one
d. Counterclaims (D sues P)
i. Rule 13 Counterclaim & Cross-claim
1. 13(a) Compulsory/mandatory counterclaims
a. Same transaction or occurrence
b. Purpose is efficiencyadjudicate claim & mandatory counterclaim
together
2. 13(b) Permissive counterclaims
a. Different transaction or occurrence
b. Purpose is to do discovery all at once, although trial can be bifurcated
(Rule 42)
e. Crossclaims (one D sues another D)
f. 3rd party claims (D sues 3rd party): e.g. P sues D for auto accident; D sues Ps
mechanic for failure to fix brakes
10. Reply
a. P must reply if D files counterclaim denominated as such (must be labeled xth
defense & counterclaim)
b. Falls under obligations of 8(b) and 11(b)(4), just like an answer
11. Complaint & answer before courtcase is at issue
12. Discovery
a. Rule 26 Discovery
i. 26(a)(1) Required disclosures
1. Must be voluntary disclosure within short period of time after case is at
issue
2. Names & contact info of people likely to have info, copies of documents,
damage computations, insurance agreements, etc.
ii. 26(b)(1) Scope & Limits
1. Relevant to claim or defense
a. Need not be admissible at trial if leads to discovery of admissible
evidence

b. Not limited to legal theory, as long as its from same

occurrence/transaction
c. 3 steps to determine relevance:
i. Step 1: What do we want to prove? (Y)
1. E.g. In 1970, S & C refused to hire women lawyers as
associates b/c they were women.
ii. Step 2: Identify evidence that tends to prove material fact (X)
1. E.g. In 1975, S & C promoted women at a slower rate than men.
iii. Step 3: Explain why X establishes Y
1. E.g. Law firms that in 1975 promote women at a slower rate
than men [ ] think male partners can bring in more clients. If in
1975 they think male partners can bring in more clients [ ] they
would prefer to hire male associates. If they preferred to hire
male associates in 1975 [ ] they would prefer not to hire women
associates. If they preferred not to hired women associates in
1975 [ ] they probably preferred not to hire women associates in
1970.
2. Not privilegedprivilege trumps relevance
b. Vehicles for discovery
i. Interrogatories
1. List of written questions sent to other party (cant be sent to non-parties)
2. Problem: lawyers prepare the answers!
ii. Requests to produce
1. Other party required to produce relevant docs if you request them
2. Can also request docs from 3rd parties by serving subpoenas duces tecum
iii. Depositions
1. Witnesses/parties called into attorneys office to answer questions
recorded
iv. Requests for admissions
1. Other party required to make true admissions if you request
v. Can send parties for physical & mental exams
c. Rule 37 Failure to Make or Cooperate in Discovery
i. Party can move to compel disclosure if in good faith tried to get the disclosure
w/o court action
d. Rule 26(c) Protective Orders
i. Protect party from annoyance, embarrassment, oppression, or undue burden or
expense
ii. Prohibit discovery, limit scope/method of discovery, etc.
iii. Butler v. Rixbycourt permitted # of patients referred to lawyers by hospital,
but not names of patients b/c of relevance
e. What do you want to find through discovery?
i. Your contentions
ii. Adversarys contentions
iii. Want to find out good and bad stuff to avoid being blind-sided

f. Can get discovery on legal theory that youve dropped, but must identify all legal
theories you might bring forth in the final pre-trial conference (controls evidence
you can bring in)
13. Disposition Without Trial
a. Summary judgmentRule 56 Summary judgment
i. Purpose of summary judgment: Purpose of a trial is to resolve disputed facts.
If facts are clear and only dispute is over the law, trial is not necessary. Juries
decide credibility of witnesses.
ii. Rule 56(c) Motion & Proceedingssummary judgment rendered if no genuine
issue of material fact
iii. In order to move for summary judgment, must convert elements into factual
propositions. Factual propositions must equal material facts. Cannot prove an
eltcan only prove a material fact embodying an elt.
iv. Evidence
1. Direct evidence is that which proves a material fact through testimony that
involves no inference.
2. All other evidence is circumstantial, which requires inferences
v. Ways to win summary judgment
1. Equal inferenceHouchens case: court granted summary judgment to Ds
b/c equally likely that Mr. Houchens did not die accidentally
b. Voluntary dismissalP dismisses suit on own motion
c. Involuntary dismissallawsuit dismissed b/c a party, usually P, not following
rules
d. Settlement/arbitration/mediation
14. Trial
a. Directed verdict
i. A.k.a. Judgment as a matter of law
ii. Same standard as that for summary judgment
iii. Can procedurally move for directed verdict twice, once after Ps evidence, and
again after Ds evidence
iv. Hypo: Ds counsel gets each of Ps experts to admit that they were paid $25K
for testimonyjudge cant grant directed verdict b/c up to jury to decide
credibility of witnesses
15. Post Trial Motions
a. JNOV
i. Same standard as that for directed verdict
ii. Norton v. Snapper casetrial judge granted j.n.o.v. after jury verdict, but
appellate court reversed & remanded. Since already decided by jury, dont
have to have new trial
iii. Judges typically dont grant directed verdicts at time of motion b/c want to
hear jurys verdict first (jury might decide in Ds favor anyway, or if judges
j.n.o.v. is reversed & remanded there doesnt have to be a new trial)
b. New trial
16. Appeal
a. Final judgment rule: Only final judgments can be appealed

i. Reasons: Overwhelming appellate courts, might be for nothing if appellant

wins anyway, everyone waiting in line would be affected by prolongation
ii. If a decision is one that doesnt terminate the case in the district court, its not a
final judgment
b. Rare instances of interlocutory appeals
i. Reasons: May affect settlements, esp. if deal w/discovery rulings
c. Review standard
i. Findings of factappellate courts overturn findings of fact only if trial court
was clearly erroneous
ii. Findings of lawappellate courts overturn prejudicial mistakes
17. Preclusion
a. Claim preclusion
i. Rush v. City of Maple Heightscourt held that P was claim precluded from
suing for personal injuries after having sued for property damage before; had
her day in court
b. Issue preclusion