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Ch. 6 Pleading Outline
Sunday, January 04, 2009
6:51 PM
Understanding Civil Procedure
Monday, January 12, 2009
4:06 PM
Understanding Civil Procedure: (need to read Chapter 8 & 9)
Chapter 8 Simple Pleading & Practice
§ 8.01 Overview
Pleading is the written allegations to ascertain the subject for decision in a civil action
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Pleadings are usually only those docs containing stmts (averments) or denials of facts: the complaint, answer and
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reply
Legal objections to pleadings are made by demurrer (in some state courts) or a motion to dismiss the pleading
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This chapter covers single claims by single PL against a single DFD
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First, Pleading can give notice to parties of the nature of claims and defenses, helping them prepare their cases
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Second, pleading can help to eliminate sham of insufficient claims or defenses
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Third pleading can help to narrow the issues to streamline cases
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Fourth, pleading can guide the parties and the court in the conduct of a case helping them to define scope of pretrial
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factual prep and of evidentiary relevance at trial
Finally, pleading cas supply a record for judgment, permitting the eventual app of the law of res judicata to preclude
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relitigation of once-decided claims and issues
Most jursidctions nowadays have notice pleading…not fact pleading
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§ 8.02 Pre-Code Pleading and Practice
1.
Common Law Issue Pleading and Practice
PL in royal courts began his action by obtaining a writ from king's rep ordering a sheriff to compel the dfd
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to satisfy PLs claim or to appear in court to defend himself…claim had to fall within the court's limited
jurisdiction and allowable forms of action
Eventually each permitted writ became associate with its own substantive legal theory and developed its
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own procedural incidents…as result each writ had its own unique set of rules for pleading, trial, etc….these
types of cases focused more on pleading the writ then pleading the facts of the case
Once writ issued, PL filed a declaration which described case in formalistic and often fictitious language
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held necessary under the writ and associated with attendant form of action…could not vary off of the writ to
plead something else or it was considered a variance and forbidden
This type of system only wanted to argue the one single issue
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A party could demur meaning that even if true the PLs allegations state no legal claim…had to attack
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pleading on its face…speaking demurrers which relied on additional matter were prohibited…general
demurrer was reserved for substantial legal defects
A party could also resond with a dilatory plea, asserting some legal reason, incidental to merits, why
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court could not hear case
Pleas to the court's jurisdiction challenged SMJ
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Pleas in suspension sought to suspend action until some problem, such as the PLs legal disability through
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outlawry had been removed
Pleas in abatement challenged defects in the pleading itself
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Party could also respond on the merits with a plea in bar, also called a preemptory plea, asserting a
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defense that could bar recovery
General issue plea was essentially a not guilty plea
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2.
Equity Pleading and Practice
For things outside of the writs people would petition the king directly…king sent them to chancery court
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to decide…these were called bills of complaint
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Predicate for seeking equity in the chancery court was a showing of inadequate remedy at law
Remedy at equity was a decree ordering respondent personally and directly to do or not to do something
Equity developed its own set of procedures
Bill of complaint consisted of a repetitive narrative of evidentiary facts culminating in interrogatories to
respondent…BOC frames party to force disclosure of dfds case by his sworn answer and partly to serve as
evidence in lieu of oral testimony at trial to the chancellor and thus served as early form of
discovery…eventually gave rise to bill of discovery
Second, equity permitted joinder of parties which wasn't allowed in common law suit
Cross-bills permitted claims btw co-dfds, by dfd against PL and against some 3rd parties, while
interpleaders and derivatirve suits permitted even more sophisticated forms of joinder
Third, equity did not ordinarily use jury as fact-finder…went to chancellor instead
§ 8.03 Code Fact Pleading and Procedure
1.
In General
Thank God, neither technical pleading nor equity pleading was imported into the US
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Field Code abolished the forms of action and the distinction btw law and equity in favor of "one form of
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action, denominated a civil action"…hallmark of code was fact pleading meaning the facts would show if there
is a cause of action
2.
The Cause of Action and the Theory of the Pleadings
Two approaches to limiting suit developed….first equated cause of action with a right of action or the
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legal or primary right suggested by the facts relied upon by the PL….the second looked to the aggregate of
operative facts limited as a lay onlooker would to a single occurrence or affair without particular reference to
the resulting legal rights or rights
With the theory of pleadings coming around it was for a while that the forms of action still ruled code
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pleading from the grave
3.
The Specificity of Fact Pleading Under the Codes
Codes required pleading of only dry, naked actual facts to which the court would apply the substantive
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law and thus PL did not have to argue a conclusory legal evaluation of his facts…at the same time he had to
plead concisely…PL had to plead only the ultimate facts from which an appropriate cause of action could be
inferred
§ 8.04 Modern Notice Pleading
Nowadays the FRCP has come along and requires a "short and plain statement of the claim showing that the pleader
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is entitled to relief
1.
The Specificity of Notice Pleading
Conley v. Gibson held that a complaint should not be dismissed for failure to state a claim unless it
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appears beyond doubt that the PL can prove no set of facts in support of his claim which would entitle him to
relief (simplified notice pleading)
Some types of claims require a heightened pleading standard…most notable, incarcerated PLs, antitrust
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complaints and complaints against govn't action…this is to weed out frivolous complaints early…based on
Leatherman v. Tarrant County Narcotics this trend may be on the downfall
It's a tough line to draw btw pleading too much and not enough…the federal form complaints suggest
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that the complaint should state the circumstances, occurrences, and events that give rise to the claim, even
though they can be stated quite gnerally
2.
Consistency and the Theory of the Pleadings in Modern Pleading
modern notice pleading has substantially eliminated the theory of the pleadings approach
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Test for sufficiency of a pleading is whether the pleader has stated a claim under any legal theory, not just
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under his asserted theory of the pleadings
Rule 8(e)(2) permits demands for alternative types of relief or hypothetical claims and defenses and as
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many claims or defenses as a party has regardless of consistency and Rule 8(a) permits demands for
alternative types of relief
Rule 15(b) permits amendment of the pleadings to conform with evidence at trial and provides for
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constructive amendment when the parties have consented to any variance from the pleadings
Rule 54(c) provides that every final judgment shall grant the relief to which the party in whose favor it is
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rendered is entitled, even if the party has not demanded such relief in the party's pleadings
Theory of pleadings doctrine is not wholly dead: (1) substantive law may require a party to elect his
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remedies - rooted in estoppel (2) theory of pleadings may determine which statute of limitations is applicable
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to the action and whether the pleader is entitled to a jury trial as a matter of right (3) fed. Judges are
authorized by Rule 16 to frame pretrial orders that may require the parties to exchange pretrial briefs in which
they commit to particular legal theories (4) obligations of candor and care may also restrict a pleader's
freedom to plead inconsistently, change his legal theory, or introduce new lines of proof
The Form of Notice Pleading
Modern notice pleading requires no technical forms of pleading
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Pleading needs only a caption, numbered paragraphs containing averments limited as far as practicable
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to a stmt of a single set of circumstances and separate counts for different claims or defenses
Averments may be incorporated by reference and by attachments to the pleading
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None of the requirements are strict because all pleadings shall be so construed as to do substantial justice
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Special Pleading Rules in Modern Pleading
Notice pleading is norm but there are a few special pleading rules which vary by jurisdiction
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Special pleading rules are adopted for practical reasons which are reflected in Rule 9
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Rule 9(b) requires that circumstances constituting fraud or mistake shall be statd ith particularity…does
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not require nor make legitimate the pleading of detailed evidentiary matter(in accord with Rule 8)…ok to state
things likely to have evidentiary support after a reasonable opportunity for further investigation or
discovery(in accord with rule 11(b)(3))
Other special pleading rules promote pleading efficiency and convenience
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Rule 9(c) permits PL to plead K breaches compendiously
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Special pleading is sometimes required to avoid surprise…Rule 9(g) requires that items of special dmg be
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specifically stated so one will know what to expect to be sued for (i.e. no punitive for K breach)
Finally special pleading may be required to state PLs prima facie case
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§ 8.05 Candor and Care Requirements in Modern Pleading
1.
Verification
Verification of a pleading attests under oath to the truth of its contents, effectively transforming it into an
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affidavit usable as evidence at trial when the averments are made on the pleader's personal
knowledge…usually used in domestic relations actions if at all…not generally required in fed.
Requirement that parties verify pleadings is ineffective to encourage good faith and reasonable inquiry by
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their attorneys
2.
Certification and Rule 11
Certification requirement suffers neither of these defects...Certifies only to proper purpose and
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reasonable care in filing the pleading
Rule 11 in General
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Rule 11 is an example of a particularly strong certification requirement
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Only 189 cases involving Rule 11 were reported btw 1938 and 1983
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b/c Rule 11 had not been effective in deterring abuses up until 1983 the Advisory Commite on
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Civil Rules completely revised the rule…the revision provided that by signing a pleading or other paper
the attorney or party certified that to the best of his knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and warranted by esiting law or a good faith argument for
the extension, modification, or reversal of existing law, and that it is not inteposed for any improper
purpose…this changed it from what the attorney believed to what he should believe as a competent
attorney (changed it from subjective to objective standard)
This new rule possibly pushed it too far and btw. 1983 and 1993 there were 6000 reported rule
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11 cases
The 1993 rule equalized the burdens imposed by rule on PLs and DFDs…it abolished mandatory
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sanctions in favor of discretionary non-monetary sanctions and made several other significant changes
Rule 11(b) expanded scope of cert. from a pleading or other paper to individual claims,
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defenses and other legal contentions…looked at pleading as a whole instead of just parts to see
if violated
Amendments in 93 compromised on the issue whether litigants have a continuing
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duty to correct or even withdraw papers in light of post-filing events…in other words, lawyer is
only responsible for his behavior as circumstances dictated at the time
Rule 11(c)(1)(A) - grants a litigant 21 days btw service and filing of a Rule 11 motion to correct or
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withdraw the offending paper…threat and retreat tactic in essence
Evidentiary Support
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Rule 11(b)(3) and (4) require litigants to certify that their factual allegations or denials of factual
allegations have evidentiary support or, if specifically so id'd are likely to have evidentiary support
after a reasonable opportunity for further investigation or discovery
Legal Support
Reasonable inquity into the law is what any competent attorney would make into the standard
legal research sources…must determine that any legal position asserted in a filing is warranted by
existing law
In order not to chill advocacy for change in the law, the rule shelters nonfrivolous argument for
the extension, modification, or reversal of existing law
Rule 11 does not require that the PLs attorney step into either the judges or opposing council's
shoe to argue all sides of the law (i.e. contrary authority) but should take the time to adequately
address their side to prove they may have a case and it won't be completely thrown out
Improper Purpose
Is a court's acceptance of a legal argument, or more broadly, finding that a pape is wellfounded,
necessarily to suggest that Rule 11 was not violated?....may be necessary to explore the filer's
subjective intent…some jurisdictions say yes, some no…really should be inferred from the paper itself
and the consequences of the filing
Usually these only constitute sanctions if there are multiple filings (even of well-grounded
complaints) that could be interpreted as being harassing
Sanctions
Rule 11's purpose is deterrence, not compensation…Rule 11(c)(2) addresses this by making
sanctions discretionary and by expressly reminding the court of the availability of nonmonetary
sanctions, including orders to pay penalties into court…nowadays monetary sanctions are limited to a
reasonable attorney's fees and other expenses incurred as a direct result of the violation
Court's discretion is limited in Rule 11(c)(2) to sanctions limited to what is sufficient to deter
repetition of the violative conduct or comparable conduct by other similarly situated…court should
look at if it was intentional, repetitive, etc. when determining this
Also, sanctions may be filed only after notifying the other side and allowing them to respond,
amend or whatever
In addition Rule 11(c) requires a sanctions order to describe the offending conduct and to
explain the basis for the sanction imposed which helps appellate court on review
Assessment
Most attorneys/judges nowadays think groundless litigation is a small problem which had not
changed much since the 93 amendments…majority also felt compensation along with deterrence
should be allowed
1993 amendment do not fully address a serious problem of certification: its tendency to focus
judicial sanctioning attention on a litigant's product rather than her conduct
The proper focus of a certification rule is on a litigant's conduct in investigating the facts and
researching the law before filing…there are other motions available to test the merits
§ 8.06 The Complaint
Needs to have three things, a stmt of jurisdiction, a stmt of the claim and a demand for relief
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1.
Statement of Jurisdiction
Rule 8(a) requires claimant to include a stmt of ground upon which court's jurisdiction depends unless
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court already has jurisdiction and claim needs no independent grounds…really only applies to courts of limited
jurisdiction
Defects in the allegation of jurisdiction can be cured by amendments liberally
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2.
Statement of Claim and the Burden of Pleading
PL has burden of producing evidence at trial that would enable a rational trier of fact to find for him (1) if
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he also carries his burden of persuasion [i.e. persuades the trier of fact that it is more probable than not that
he is correct] and (2) unless dfd in turn carriers her burden of providing evidence that would enable the trier of
fact to find that she has a defense…when PL doesn't carry this burden the court will dismiss the case and enter
judgment as a matter of law for dfd
PL typically (though not always) gets burden of pleading matters for which he has the initial burden of
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production at trial…prima facie case
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3.
Dfd has burden of pleading elements as to which she carries burden of production at trial…focuses dfd to
id the specific defenses on which he will rely, info that would be withheld from PL and court until trial were
the burden of pleading the nonexistence of all possible defenses placed on PL
Jurisdiction declares who has the burden of cases in unusual cases like civil rights
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Demand for Relief
Most modern pleading systems frequently authorize court to grant relief to which the prevailing party is
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entitled, even if the party has not demanded such relief in the pleadings
Sometimes jurisdictional limits to amounts in controversy come into play
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Prayer for relief may set a ceiling on the PLs recovery in the event of default
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Rule 54(c) provides that a judgment by default shall ot be different in kind from or exceed in amount that
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prayed for in the demand for judgment
§ 8.07 Challenging Pleadings: Motion Practice
1.
Motion Practice in General
Three responsive pleadings are motion, answer and reply(as permitted).
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Motion is an application to the court for an order…must state w/particularity the grounds upon which it
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relies
Federal rules and many state rules in notice pleading jurisdictions permit the dfd to file a motion
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attacking the complaint in lieu of an answer
Rule 12(g) requires movant to join in any pre-answer motion all the Rule 12(b) defenses and Rule 12
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motions then available to him…in other words it favors one motion instead of many citing Rule 12(b) defenses
Pre-answer motion may be used to present dilatory defenses…these 12(b) defenses can be asserted by
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motion or in a responsive pleading…a motion presenting them may be decided on basis of materials submitted
by parties as well as on the pleadings
In contrast a pre-answer motion that presents the defense of failure to state a claim(12-b-6) or
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defense(12f) attacks substantive content of pleading alone and must usually be decided on face of pleading
alone…court may still take judicial notice of law, other pleadings, its own records and universally undisputed
facts
Afte pleadings have closed in federal court, either side may seek judgment on the pleadings under Rule
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12(c)…this motion goes to the merits of the pleading --- where 12-b-6 motion is confined to fact of complaint,
a rule 12(c) motion takes in all pleadings on file…Rule 12(c) motions have largely been superseded by
summary judgment
De-emphasis of pleading in current litigation has made 12-b-6 motions few and far btw
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12-b-6 can still be useful in say trimming down the valid claims from 20 to 2 which is still a small win for
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the dfd
2.
Bases for Motions
a.
Defects of Form
Attacks on defect of forms are virtually extinct b/c notice pleading doesn't require technical
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forms of pleading
Only defects that can be attacked are scandalous, unintelligible, redundant, immaterial or
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impertinent ones
Rule 12(e) motion allows for a more definite stmt
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Rule 12(f) motions to strike (delete) any of the various kinds of improper matter from a pleading
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are even less likely to be granted than Rule 12(e) motions…Rule 12(f) motions are universally
disfavored unless they are to be shown to the jury or the gen. public….one example is you can't call a
car a death trap
b.
Waivable Preliminary Defenses
Lack of PJ, improper venue, insufficiency of process (papers served on parties), and insufficiency
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of service are typical defenses that can or must be asserted by pre-answer motio
In almost all jurisdictions dfd are required, on penalty of waiver, to raise these issues
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preliminarily
FRCP 12(g) and 12(h)(1) provide that these defenses are waived unless they are asserted in a
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single pre-answer motion, or, if none is filed, in an answer or reply or any amendment thereto
permitted as a matter of course
Should assert these defenses in the first defensive paper so as not to waive them
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c.
Failure to State a Claim (or Defense), and Other Nonwaivable Defenses
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3.
The defenses of failure to state a claim or defense, lack of SMJ, and, in fed. Courts, failure to join
a party under Rule 19 are not waived by their omission from a pre-answer motion
Rule 12(h)(3) provides that the defense of lack of SMJ may be raised at any time
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Rule 12(h)(2) states that the other nonwaivable defenses may be asserted in any pleading, by
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the motion for judgment on the pleadings, or even at trial on the merits
Most common n.w.d. is 12(b)(6) motion which is failure to state a claim…all well pleaded facts
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are taken as true in the challenged pleading for purpose of the motion and all reasonable inferences
are drawn in favor of the PL
Rule 12(f) motion to strike is used for the purpose of striking of a defective claim or count…this
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would usually apply to only attacking a portion of the complaint and not the whole thing
Consequences of Challenging a Pleading
a.
Successful Challenge
One reason 12(b)(6) motions are so ineffective is that a PL will often moot a strong pre-answer
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motion by amending his defective complaint
Rule 15(a) allows amendments to complaints once as a matter of course any time before a
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responsive pleading is filed and a pre-answer motion is not a responsive pleading so….
Most of the time an amendment is allowed even after a motion to dismiss has been granted
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If the case is dismissed and PL amends it he may waive his right to challenge the validity of the
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original complaint in appellate court
b.
Unsuccessful Challenge
Options posed by denial of dfds motion to dismiss are simpler --- he may file an answer (in fed.
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Court he cannot include waivable defenses if they were omitted from his motion)…by answer he
foregoes opportunity to obtain immediate appellate review of the denial of his motion, unless juris.
Permits interlocutory appeals
May also waive preliminary defenses by going forward but can preserve defense that complaint
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fails to state claim by nurturing it throughout litigation with motions at trial for dismissal, directed
verdict, or in fed. Court, judgment as a matter of law, and after trial, judgment notwithstanding the
verdict, and by appropriate evidentiary objections at trial.
On the other hand, dfd may elect to stand on her motion and refuse to answer which results in
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default judgment from which she can appeal
§ 8.08 The Answer
Answer may contain 3 kinds of responses: denials controverting the pleader's allegations, defenses, and claims by dfd
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1.
Denials
In an answer, Dfd must admit or deny all the well-pleaded allegations of the complaint
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General denial of all allegations usually will get you rule 11 sanctions
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Most dfds specifically deny particular paragraphs or sentences of the allegation
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Rule 8(b) commands that denials shall fairly meet the substance of the averments denied
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Failure to deny an allegation is the same as admitting its truth
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Zielinski v. Philadelphia Piers illustrates that in a personal injury suit, dfd generally denied a paragraph in
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the complaint that alleged that a forklift owned operated and controlled by it and its employees was
negligently drive so that it hit and injured PL…in fact, unknown to PL, dfd had sold its business and transferred
its employees to a third party prior to the accident, retaining only ownership of the forklift…by the time PL
learned of these facts the SOL was up and thus they couldn't sue the proper 3rd party…PL argued that the dfds
denial was ineffective and should be treated as an admission for purposes of the action…court ruled that the
failure to deny specifically the "opearted and controlled" allegations in the quoted paragraph deprived PL of
warning that he sued the wrong dfd…although dfds denial was literally true it did not fairly meet the
substance of the averments denied…moreover dfd should have admiited that the forklift hit and injured PL
which it did knw from a report…circumstances justified equitable estoppel from denying ownership in this
case
If dfd doesn't or can't know if an allegation is true or false most jurisdictions permit him to deny but he
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must state such
Rule 11(b)(4) imposes a duty of reasonable inquiry on dfd by which he may obtain the necessary
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knowledge or info and explicitly applies to denials of factual contentions
2.
Other Defenses
a.
Preliminary, Nowaivable and Affirmative Defenses
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3.
Besides denials, an answer should contain "in short and plain terms" other defenses to each
claim in the complaint
Affirmative defenses are excuses or justifications that will excuse the cause of action even if the
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claim is proven at trial
Affirmative defenses must be pleaded as a condition to the admissibility of such evidence at the
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trial…when dfd fails to plead affirmative defense the admissibility of some tendered evidence will
depend upon whether it goes to PLs prima facie case or whether it is truly new matter…if new matter it
may not come in unless opposing party fails to object or the court permits amendments of pleadings
during trial
Rule 8(c) lists many of the affirmative defenses available in fed. Court…state courts not so clear
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Danger of pleading an affirmative defense is if you lose on that count you may still be stuck with
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taking the allegation underlying the affirmative defense as truth
Rule 12(f) = challenges to the legal sufficienty of defenses --- motion to strike in fed. Courts or
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by demurrer in states that retain that device
b.
A Note on the Affirmative Defense of the Statute of Limitations
Availability of SOL defenses depends upon 3 factors:
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1.
When the claim accrued or came into existence - ex. Tort actions accrue at time of
injury | K actions accrue at time of breach
2.
Period of limitation - varies by jurisdiction…short periods (commonly) for intentional
torts and disfavored actions like defamation, intermediate (2-3 yrs) with negligence and oral K
claims, and longer periods (5 or 6 years) with actions involving written K and instruments.
3.
When the period tolls or stops running - in most statutes the period is tolled by
commencement of an action in court, but the rules defining commencement vary…some
statutes say commencement = filing + service, others say just filing provided service is done
w/in reasonable time or time allotted…others may toll SOL if dfd fraudulently concealed or up
until point when PL knew or should have known of the wrongdoing…periods often tolled due to
incompetency of PL like being a minor or in a coma or something
Federal tolling statutes are used in federal courts but only to the extent of when to toll…the
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time allotted borrows from state law under Erie rules
Rule 12(b)(6) motion is what you'd file for SOL…however, this is disfavored in many courts b/c it
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complicates PLs offer of factual matter in avoidance of defense, such as fraudulent concealment under
doctrine of equitable tolling…courts have urged that this be raised by an answer which presents PL
opportunity to seek leave to reply and that it be presented by motion for summary judgment
Claims by Way of Answer
Dfd may also respond to complaint by asserting claims against PL, other dfds, or 3rd parties..claims
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against existing parties are usu. Asserted in answer
§ 8.09 The Reply and Other Pleadings
Under fed. Rules, further pleading is necessary after an answer only if latter introduces a claim
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Rule 7(a) requires a reply to a counterclaim denominated as such and answers to all other claims included in the
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original answer
No other pleadings are allowed as of right and all averments in the last required pleading are deemed denied or
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avoided…abandonment of issue-id. As the primary function of pleading accounts for the early cut-of; answer and reply
suffice to give fair notice
One may also add later supplemental pleadings with new actions that accrue after the initial filing…court must grant
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leave to do this
§ 8.10 Amendment of Pleadings
One key to the de-emphasis of pleadings today is liberal amendments
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Rule 15 covers amendments for the most part
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1.
Amendment Before Trial
Earlier the better
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Rule 15(a) - a party may amend once as a matter of course without permission from the court or consent
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of other parties before a responsive pleading is servied, or w/in twenty days of service if no responsive
pleading is required….b/c rule 12(b) is not a responsive pleading under the definition in Rule 7, Rule 15(a)
allows an amendment to cure defects raised by a 12(b)(6) motion without necessity of a hearing or rulig on the
motion
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Rule 15(a) also provides that leave to amend should be allowed when justice so requires…basically court
will allow it unless the amendment is unreasonably dilatory(delay), futile or in bad faith or the opposing party
would be unduly prejudiced
Beeck v. Aquaslide - in its answer, dfd admitted design and mfg of water slide which caused
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injury…subsequently it later found out it didn't mr or make the water slide and sought to amend…SOL had
already run…trial court granted dfd leave to amend it answer In order to deny design and mfg…PL appealed
asserting that grant of leave to amend was in error but the appellate court still affirmed…no evidence of bad
faith or unreasonable delay so amendment was granted and PL was screwed…DFD had relied on 3 different
ins. Companies in preparing its intial answer and had promptly sought amendment upon discovering
error…PLs unable to show undue prejudice…Trial court found that causes of action in fraud or K might still be
available against other parties and that such parties might be equitably estopped from asserting a limitations
defense
Amendment During and After Trial
At common law, evidence offered outside the issues framed by the pleadings was inadmissible b/c

variance from pleadings was forbidden…Rule 15(b), in contrast, anticipates variance and authorizes curing
amendments by consent and over objection, during trial and even after judgment to conform to the evidence
Conforming Amendment by Consent

Parties may expressly consent to trial of issues outside pleadings…Rule 15(b) provides that

issues will then be treated as if they had been raised in pleadings
Unpleaded issues my also be tried by implied consent of parties

At any time, even after judgment, either party may move to amend pleadings to conform to the

evidence, although amendment is not necessary
Moore v. Moore - after trial of husband's complaint for child custody, trial court granted wife's

motion fo amend answer to include counterclaims for custody child support, separate maintenance
and attorney's fees…b/c it came late in trial, trial court abused its discretion in granting amendment to
add separate maintenance claim…plus the separate maintenance claim is not usually litigated in child
custody cases and thus husband was not on notice and should not have been allowed in the
amendment
Test for implied consent searches the entire record and considers a party's conduct in all the

circumstances
Nielson v. Armstrong Rubber Co. - PL moved at close of evidence to amend his simple

negligence complaint to include a claim of strict products liability…dfd had not objected at trial to
evidence of dangerousness and of failure to include a warning…dfd argued that this evidence applied
to negligence claim and unpleaded claim of strict products liability…dfd had received PLs pretrial memo
citing the law of products liability, introduced evidence to rebut a strict liability claim, and been
present when trial court said it seems to me that we have now amended our pleadings…on the whole
record dfd clearly had notice and an opportunity to litigate the unpleaded issue and the amendment to
conform to the evidence was proper
Conforming Amendment Over Objection

Rule 15(b) encourages fed courts to grant amendment freely when the presentation of the

merits of the action will be subserved thereby and the objecting party fails to make a showing of
prejudice in maintaining his action or defense upon the merits
Presumption of favoring amendments is slightly weakened once trial has begun

Rule 15(b) expressly authorizes continuances where objecting party complains that he needs

more prep time o litigate unpleaded issue…this is difficult in a jury trial
c.
The Objecting Party's Tactical Dilemma
When evidence apposite to an unpleaded issue is introduced at trial the adverse party, under

Rule 15(b) may be screwed if he objects or even if he doesn't…by objecting he invites a motion fo
conforming amendment which court will usu. Grant…most you can hope for is to get a continuance to
prepare to meet the new evidence and/or amendments...If he fails to object this may be taken for
implied consent
Safe course is to object and defend

Amendment and the Statute of Limitations
a.
Relation Back of Amendments Amending Claims
Rule 15(c)(2) - when amendment presents a claim that is completely new and factually

unrelated to the original claims, it operates, in effect, as an independent original action brought after
applicable limitations period has expired
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When amendment presents a matter that is closely related to a timely-filed original pleading,
allowing it to relate back would not offend the policy of limitations…in this case it gives notice to dfd to
start gathering evidence before the claim grows stale
Rule 15(c)(2) says a complaint gives the dfd notice "that the whole transaction described in it
will be fully sifted, by amendment if need be" and that liability for claims arising out of the transaction
may be premised on anything stemming from those circumstances, even legal theories not mentioned
in the complaint --- transactional relationship test
McGregor v. LSU Board of Supervisors - handicapped law student sued school and officials for
violating the Rehab Act of 1973 by denying him advancement to his 2nd year…his original, timely
complaint, asserted that he take a full-time schedule, have in-class exams, an dattain a certain GPA
before advancement…after SOL had run, he sought to amend his complaint by adding due process
claims on ground that school had provided no written procedure concerning his righ tto appel denial of
petition to school…both trial and appellate court agreed that original complaint had not put school on
notice of due process claim
Relation Back of Amendments Amending Parties
More problematic b/c new party was not put on notice and thus such amendments are
disallowed in most jurisdictions
Rule 15(c)(1)(C) covers this somewhat
Misnomer's usually allowed…meaning misspelling of the party's name
Relation back also sometimes permitted when there is sufficient identity of interests btw party
originally sued and new party such that the former can be imputed to the latter
Advising of the pendency of the lawsuit (reasonably) and warning of the possibility that the an
amended dfd might be drawn into, seems to be sufficient to hold
Responding to Amendment
Rule allows 10 days for a response to an amendment
§ 8.11 A Concluding Note on Common Sense in Pleading
Good pleading follows both the rules of the jurisdiction and the rules of common sense and good practice

(A) The Story of Pleading
Monday, January 12, 2009
4:07 PM
1.
2.
The Rules define pleading to include the complaint and a specific set of initial papers in a lawsuit…those initial stages
did, and sometimes still do, a good deal of sorting and defining.
Pleadings tell the contestants' initial stories…tell the court why it should bother with the case.
Professor's Notes:
Held
(1) Of Stories and Jurisdiction
Monday, January 12, 2009
4:08 PM
Notes & Problems:
Modern law focuses on remedies.

Ingredients of a modern complaint are relatively straightforward.

The rest of the chapter will focus on instances where lawyers messed up the recipe for a complaint and what

consequences flowed from their mistakes.
Professor's Notes:
Held
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(2) Of Formulas & Facts
Monday, January 12, 2009
4:10 PM
Roughly speaking a court wants to know three things:
1.
What kind of case is this? (K dispute, negligent infliction of person injury, antitrust case, etc.)
2.
Does it belong in this court? (should it be federal rather than state or a in a court that handles cases with
larger or smaller damage claims)
3.
Does this case belong in any court? (does the law recognize this substantive claim?)
Rules had fourfeatures that divergerd sharply from earlier practice and that persist in modern procedure: (1) they merged
law and equity, ending the centuries-long separation of functions and procedures (2) they established broad and flexible
joinder of claims and parties (3) they created powerful procedures for pretrial discovery; and, closest to our present
inquirty (4) they sought a way of defining pleading that de-emphasized its role in litigation and avoided both the required
formulas of the writs and the "facts" of the Codes
3.
Notes & Problems:
What is Rule 8 (a) (1) there?
Rule 8. General Rules of Pleading
(a) Claims for Relief.
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court
already has jurisdiction and the claim needs no new jurisdictional support;
1.
This would correspond to the old medieval complaint in that they were arguing that the case would be one
that would go to the royal seat and not a court of equity
2.
The 35 states who have adopted the FRCP as the rules model for their procedural system would not adopt
Rule 8(a)(1) b/c typically any argument about jurisdiction will be raised by the dfd who can waive that right…as
federal courts are courts of limited jurisdiction this would seem to be a good rule for feds but not states
What problem is the short and plain requirement of rule 8(a)(2) addressing? - (2) a short and plain statement of the
claim showing that the pleader is entitled to relief
1.
Historically plain requirement was addressed to the problem of the writs, whose formulas sometimes
obscured the real controversy
2.
Point of controversy would be…?
3.
Don't make complaints too long
Rule 8(a)(3) - a demand for the relief sought, which may include relief in the alternative or different types of relief.
4.
1.
This is called a prayer for relief…pleader must understand what type of relief is available on what sort of claims
Showcases a Complaint which leads to the Notes & Problems section below
1.
2.
1.
2.
3.
4.
5.

Notes & Problems:
Held
1.
Where is jurisdictional allegation? - in the introductory stmts
2.
Where is the short plain stmt of the claim? - parts 17-23
3.
Where is the prayer for relief? - at the end of the complaint
Notice that the PL has introduced subheadings which is quite common with complaints longer than a couple paragraphs
Try to reconstruct PLs original grievance…what do you suppose it sounded like - probably like I'm mad I got fired, how
can we sue these a-holes
1.
b/c GA did not have any wrongful discharge laws at the time the lawyer had to get creative with the
intimidation aspect of the complaint
2.
I don't know how the lawyer translated his claim based on 1982 b/c 1982 is nowhere in the complaint
Which hypos raise issues on the facts alleged.
1.
Whether or not two or more people conspired to get PL fired that is an issue at hand.
2.
I don't think there is a problem with the testimony aspect b/c he testified in a court in the US which is what the
statute covers.
Some states have forms you must fill out like CA (surprise, surprise) and CA example is on p.343-344
Professor's Notes:
Rule 8(a):
(a) Claims for Relief.
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A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
Had in-class assignment to look at Haddle v. Garrison complaint on p.340 in the introductory statement (1-
i.
6)
ii.
iii.
iv.
Kreder thinks we should label our different causes of action in a complaint
Sometimes the complaint hinges on what the intent of the dfd was…sometimes it is difficult to say what the
other side knew at the time
Make sure to demand "trial by jury" or you waive the right…this is a matter of case law
(3) Challenging the Complaint
Monday, January 12, 2009
7:23 PM
3.
1.
2.
3.
4.
5.
6.

Challenging the Complaint
a.
From common law times to present, the procedural system has allowed six sorts of challenges to the
complaint; at common law these challenges were called pleas:
i.
Jurisdiction - not here
ii.
Suspension - not now (Ex: Dfd is in the armed services abroad)
iii.
Abatement - not until this is fixed (Ex: Dfd asserts case brought in wrong venue)
iv.
Demurrer - so what? (Dfd asserts that allegations of complaint do not state a claim)
v.
Traverse - didn't happen or I didn't do it (Dfd asserts that allegations of complaint are false)
vi.
Confession and avoidance - Yes but… (Dfd asserts statute of limitations has run on claim)
b.
First 3 are dilatory pleas and the last 3 are peremptory pleas
Notes & Problems:
The defenses in rule 8 which correspond to the traverse are rule 8(b)…pretty much the whole thing
Confession and avoidance correlation is part c
The common law analogue to 12(b)(6) is a default judgment I would assume. Or is it a demurrer???
Which common law analogues should dfd use in the following cases:
a.
PL alleges that dfd insulted him in public; dfd believes the law does not permit recovery for verbal insults
w/out violence accompanying it - Dfd should file confession and avoidance under rule 12 (a)(2) because the
pleader is not "entitled to relief"
b.
PL alleges that Dfd struck her and Dfd says he wasn't present at time and place alleged - Traverse which is
covered under rule 12 (b)
c.
PL states Dfd signed a K and then violated but Dfd states she was forced to sign at gunpoint so the K is null
and void - Confession and avoidance which is also covered under rule 12(b)
Lawsuits can involve two kinds of disputes: (1) disputes about the content of law and (2) disputes about the
reconstruction of historical events
Talks about how they should discredit the witness in the Haddle case b/c she was convicted of Medicare fraud and
then asks to construct a pleading motion saying how the employee was "at will" and could be fired at any time and for any
reason under GA law
Professor's Notes:
Held
Haddle v. Garrison (p.348)
Tuesday, January 13, 2009
10:41 AM
This opinion discusses and grants a 12(b)(6) motion for failure to state a claim upon which relief can be granted b/c
Haddle was an "at-will" employee and thus could be fired for any reason.
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Notes & Problems:
The only thing the court states here is that even if all of the facts are true the company and Garrison didn't need a
good reason or any reason to justify firing Haddle b/c he was an at-will employee…that is all they are saying.
To rule on a 12(b)(6) motion the court assumes that all the facts are true.
Professor's Notes:
12 (b)(6)
Rule 11
Haddle v. Garrison (p.351)
Tuesday, January 13, 2009
10:51 AM
Short opinion affirming the district courts opinion.
Notes & Problems:
1.
This was an easy case b/c there was no question of law here…open and shut.
Professor's Notes:
Held
Haddle v. Garrison (Supreme Court p.352)
Tuesday, January 13, 2009
10:53 AM
Haddle v. Garrison
525 U.S. 121 (1998)
1.
2.
Facts:
PL was initimidated and then fired for testifying against employer.
PL was an at-will employee.
Issue:
Did PL state a claim upon which relief can be granted under 42 USC 1985(conspiracy to interfere with civil rights)?
Rule:
42 USC 1985
Analysis:
See Conclusion
Conclusion:
The claim that an at-will employee was intimidated and then fired may give rise to a claim under the Civil Rights Act of
1871. Injury to person or property does not have to be actual and in cases like the one at bar where there is an
intimidation factor one can sue under 42 USC 1985.
1.
2.


Notes & Problems:
They looked at the gist of what the lawmakers were getting at when they implemented the law and made a decision.
Haddle will be lining up financing for the next part of the case b/c now it goes into discovery which is very
expensive….in the end Haddle won the case but only received $65k…however the dfd had to pay the lawyer fees for the
PL which amounted to $258,113
Professor's Notes:
Court hears an average of 100 cases per year
Motion for summary judgment (rule 56) comes btw discovery and trial
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56(c) Standard for summary judgment - no genuine issue to any material fact and that the movant is
entitled to judgment as a matter of law
Note: Consistency in Pleading
Monday, January 19, 2009
10:24 PM
Note: Consistency in Pleading
A party may set out two or more statements of a claim or defense alternately or hypothetically…and a party may

state as many separate claims or defenses as it has, regardless of consistency (ex. A dfd may deny she entered into a K
with dfd while simultaneously saying she kept her side of the bargain)
Professor's Notes:
Held
(4) Requiring & Forbidding Specificity in Pleading
Monday, January 19, 2009
10:24 PM
4.

Requiring & Forbidding Specificity in Pleading
Don't be too specific but also don't be too vague…courts have to know you have a strong case to get to trial.
Professor's Notes:
Modern/Federal Pleading
o
Federal Rule of Civil Procedure 8
o
"A Short and Plain Statement of the Claim?"
o
No references to "facts" or "cause of action"
o
Question is adequacy of notice
(a) Interpreting Rule 8: What Is a "Short Plain Statement"?
Monday, January 19, 2009
10:25 PM
1.
Interpreting Rule 8: What Is a "Short Plain Statement"?
A court may dismiss a complaint only if it is clear that no relief can be granted under any set of facts that
could be proved consistent with the allegations
ii.
Competitors cannot agree to price fix but is watching another's price and then moving the price up and
down illegal? … move on to Bell Atlantic case
Professor's Notes:
Held
i.
Bell Atlantic Corp. v. Twombly
Monday, January 19, 2009
10:25 PM
Bell Atlantic Corp. v. Twombly
127 S.Ct. 1955 (2007)
1.
2.
Facts
William Twombly and other consumers brought a class action lawsuit against Bell Atlantic Corp. and other
telecommunications companies.
Twombly alleged that the companies had violated Section 1 of the Sherman Act by conspiring to end competition
among themselves and to stifle new competition.
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In the suit, Twombly claimed that the companies had agreed not to branch out into and compete in one another's
territories, even though the Telecommunications Act of 1996 might have made it relatively inexpensive to do so.
The District Court granted Bell Atlantic's motion to dismiss the suit, however, because Twombly had failed to "allege
sufficient facts from which a conspiracy can be inferred."
In order to sufficiently claim a Section 1 violation, the court held, the plaintiffs needed to establish a "plus factor" - a
piece of evidence showing that the defendants' behavior would be against their economic self-interest unless there was a
conspiratorial agreement.
Twombly had not established a plus factor, the court held, because the companies' defensive behavior could have
been motivated by economic factors rather than conspiracy.
Twombly appealed to the U.S. Court of Appeals for the Second Circuit, which reversed the lower court.
The Second Circuit ruled that Twombly needed only to allege a conspiracy and specific facts that would support a
Section 1 violation.
Since he had alleged that the companies had engaged in suspicious "parallel conduct" and conspired to preserve
monopoly conditions, his claim was sufficient and the suit could proceed.
Issue:
Can a plaintiff claim a violation of Section 1 of the Sherman Act by alleging parallel conduct by defendants amounting to a
conspiracy?
Rule:
Claims are valid only if they allege facts that plausibly suggest a conspiracy. To allege facts that are merely consistent with
a conspiracy is not sufficient.
Analysis/Conclusion:
No. The Court ruled 7-2 that a plaintiff claiming a Section 1 violation must also allege facts that, if true, would suggest a
conspiratorial agreement. The opinion by Justice David Souter held that "Without more, parallel conduct does not suggest
conspiracy [...]" and "A statement of parallel conduct [...] needs some setting suggesting the [conspiratorial] agreement
[...]" The Court laid out a "plausibility standard" for the pleading stage of Section 1 suits. Claims are valid only if they allege
facts that plausibly suggest a conspiracy. To allege facts that are merely consistent with a conspiracy is not sufficient. The
suggestive facts need only be alleged; a suit can go forward even if the facts are unlikely to be proven by the plaintiff. The
Court held that Twombly's claim should be dismissed, because he had failed to identify any facts that suggested illegal
conspiracy over the alternative: a concurrent appraisal of the economic situation by several telecomm companies. The
dissenting Justices accused the majority of acting on the basis of practical concerns over "enormously expensive" antitrust
lawsuits with the potential to confuse juries.
1.
2.





Notes & Problems:
Haddle is a dispute about substantive law I that it begs the ? What facts justify relief for this kind of claim….Twombly
on the other hand ?s whether the facts pleaded justify relief under that law
Haddle falls into the hard law category where the ? Was if the law recognized at-will-employemnt as
property…Twombly asks the ? If there is enough evidence to infer a conspiracy
Professor's Notes:
Subject of Lawsuit:
o
Suit b class of subscribers of Local Telephone and High-Speed Internet Service
o
Alleges that Major Telecommunications Provied Engaged in Parallel conduct unfavorable to competition
o
Cause of action: conspiracy to restrain trade (Anti-trust)
Legal Requirement to Succeed in Lawsuit
o
Must establish conspiracy/agreement to restrain competition
o
Parallel conduct alone is insufficient
o
Conscious parallel behavior that is self interested rational and competitive business behavior unilaterally
prompted by common perceptions of the market is not unlawful
Bell Atlantic Complaint is on TWEN
Key piece of the opinion…Rule 8(a)(2) still requires a showing rather than a blanket assertion of entitlement to relief.
Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of
providing only fair notice of the nature of the claim but also ground on which the claim rests.
Supreme Court: Requirements for a Complaint
o
Factual Allegations Must be enough to raise above "speculative level"
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Needs more than "labels and conclusions" …formulaic recitation of the elements of a cause of action will
not do
o
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

Detailed factual allegations not required (no heightened pleading)
Supreme Court: Application of Rule to Pleading
o
Factual matter alleged must sggest an agreement was made (conspiracy)
Facts alleged need not show probability of conspiracy, but rather show plausible grounds

Bottom of p.361 you need to nudge the claim from conceivable to plausible
Conley v. Gibson
o
Complaint should not be dismissed unless it appears beyond doubt that the P can prove no set of facts in
support of his claim that would entitle him to relief
Majority in Bell Atlantic
o
Conley phrase is best forgotten as an incomplete negative gloss on an accepted pleading requirement
Dissent in Bell Atlantic
o
Majority departs from notice-pleading standard under which proof of allegations comes later after
discovery
Erickson v. Pardus (mentioned in notes) (pro-se prisoner case)
o
Prisoner allege he had liver condition
o
That prison officials commenced treatment
o
Wrongful termination of treatment had life threatening consequences and placed him in immidnent danger
o
Section 1983 cause of action for violation of 8th amendment
o
District court and court of appeals
Complaint failed to allege prison officials had caused "substantial harm"

Complaint made only conclusory allegations

Complaint failed to specifically allege that 18 month delay in treatment would cause harm

independent of having liver condition itself
o
Kreder things this is a boneheaded decision
Your complaint does need facts but constitutes the threshold for how much??? Nobody knows this according to
Kreder
(b) Special Cases, Special Pleading Rules
Monday, January 19, 2009
10:26 PM
2.
Special Cases, Special Pleading Rules
Professor's Notes:
Held
Stradford v. Zurich Insurance Co.
Monday, January 19, 2009
10:26 PM
Stradford v. Zurich Insurance Co.
2002 WL 31027517 (S.D.N.Y. 2002).
1.
2.
3.
4.
5.
6.
Facts:
Dr. Stradford is a dentist.
Zurich Ins. Are affiliated corporate insurers.
Northern issued an insurance policy on Stradford's office effective 8/18/99 insuring the premises until 8/19/00 but
Stradford failed to pay premiums so Northern cancelled policy from 10/10/99 to 12/13/99.
Stradford signed a form saying he had no losses during the lapsed time period.
10 days after the policy kicked back in Stradford filed a claim for burst pipes which had ruined $100k worth of dental
implants and caused property damage. He followed this up with a $1 million + claim.
Northern investigated and found this happened during the lapsed time period so they refused to pay.
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Issue:
Is the claim on the insurance companies behalf sufficient.
Rule:
Rule 9(b):
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice,
intent, knowledge, and other conditions of a person's mind may be alleged generally.
Analysis:
Northern accused Stradford of lying but failed to identify the lie in their complaint.
It is unclear from dfds counterclaim whether dfds assert that Stradford's claimed losses are improperly inflated, that
Stradford's office never even flooded or that the offices flooded, but not during the term of the Policy.
Conclusion:
Dfds are granted time to amend their counterclaim.
1.












Notes & Problems:
Fraud came into the picture on the counterclaim…the initial claim was the doctor suing the Insurance company for
not paying him which is breach of K….fraud claim may help the insurer in that it ruins the credibility of the doctor (which
would usually have high credibility)
Professor's Notes:
Specialized pleading case
Motion to dismiss 12b6 and motion 9b for failure of specificity requirement
p.366 second full paragraph: it is the usual practice in this circuit, when there was no prior opportunity to replead, to
grant a litigant who has suffered a dismissal under rule 9b leave to amend so that he may conform his pleadings to the Rule
We need to know that allowing amendments to complaints is given very, very freely…sometimes even after trial
pleadings are amended…unless a party has been very abusive you will be allowed to amend the complaint
To fix their counterclaim the dfd needs to add the time, place, and nature of the alleged misrepresentations be
disclosed to the party accused of fraud…Dr Stradford's office was flooded at time when he permitted the Policy to lapse
and Dr. Stradford misrepresented the date of the loss in an effort to bring the date of loss within the coverage period.
Possible lies by Dr. Stradford: loss of business claim of 1.2 million is pretty steep…dental implants costing over $100k…
Under rule 8(e) you are allowed to argue any alternative so even if you think all of these things are true you can argue
back with the word "and" or "or" …inconsistent theories are fine….in other words if you're theory were that it occurred on
a lapse date you could also state it occurred within the coverage date but the amount is wrong
Insurance company filed a motion for summary judgment based on failure to cooperate by the doctor and the court
allows it even though it is very early on in the case
If you're opponent can fix the complaint don't bother filing the motion to dismiss
Rule 9(b) takes the stance that court will not allow any willy-nilly case into a fraud case
ITT Sheraton Corp v. Lanco Inn
Top of 368…general allegation that Shertaon knew the representations made were false, fraudulent and made with
the intent to defraud is insufficient pleading of scienter
(5) Allocating the Elements of a Claim
Monday, January 19, 2009
10:27 PM
5.
Allocating the Elements of a Claim
Professor's Notes:
Held
Jones v. Block
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Monday, January 19, 2009
10:27 PM
Jones v. Block
127 S.Ct. 910 (2007)
1.
2.
3.
4.
Facts:
Jones was a prisoner held in MI prison.
He was injured and told the guards he was injured and asked for reassignment of his job there so as not to aggravate
his injuries.
The guards allegedly told him to do the work or suffer the consequences.
He did the work and aggravated his injuries.
Issue:
Does it fall on the prisoner to prove exhaustion of the claim in the complaint or on the defendant to raise lack of
exhaustion as an affirmative defense?
Rule:
PL in federal prisoner suit must exhaust all administrative remedies at the prison before suing in federal court so as to
weed out bogus, meritless claims.
Analysis:
Standard practice under the FRCP is to regard exhaustion as an affirmative defense.
Conclusion:
Failure to exhaust is an affirmative defense and inmates are not required to specially plead or demonstrate exhaustion in
their complaints…this is b/c the PLRA (Prison Litigation Reform Act) does not require them to and thus the court does not
want to overstep its bounds
1.

Notes & Problems:
This case is hard to reconcile with Twombly…basically Twombly probably only applies to Anti-trust as far as the special
pleadings go
Professor's Notes:
Typically the burden of pleading can likely determine who wins
(B) Ethical Limitations in Pleading - and in Litigation Generally
Monday, January 19, 2009
10:28 PM
2.
Ethical Limitations in Pleading - and in Litigation Generally
Rule 11 restricts the lawyer's ability to file a pleading when he has no more than a hope that favorable
factors or law will emerge as the case progresses
ii.
Rule 11 echoes the language found in the professional standards of many bars
i.
1.
2.
Notes & Problems:
Questions about Rule 11:
a.
Threatening someone with a meritless lawsuit does not violate rule 11. Filing a meritless lawsuit
with bogus claims does….b/c this is not a written document
b.
No different result if lawyer makes the call and not party….not a written document
c.
If lawyer files a groundless interrogatory I think they'd be okay b/c this relates to discovery and
does not make claims or statements…I would think failing to file this could come back and bite you in the
butt with malpractice down the road but probably not if it is groundless. Rule 11 (d) but possibly if under
rule 9(b)(1)…cannot be sanctioned under Rule 11 b/c an interrogatory is part of discovery
Client tells attorney a bogus story and attorney files against dfd…
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b.
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Is there a rule 11 violation? By whom? - probably if any capable attorney could have reasonably
found the truth to the story…Kreder's gut is that it could be against the attorney and client but we'd need
more details
If he has in fact violated rule 11 he will probably investigate client's stories in the future
See below:
&b. If dfd files for motion to dismiss he could also file for attorney's fees under Rule
11(c)(2)…however the motions must be separate in that he'd have to file a motion for summary judgment
separate from a motion for sanctions under Rule 11…(a) cannot file both at same time you must file
sanctions and summary judgment separately (b) No b/c you have to give them service of the sanctions and
then give them 21 days to amend [people file sanctions to try to get a dismissal with prejudice so PL cannot
refile]
See below:
If lawyer finds change in story from original can she be sanctioned under rule 11 for failing to file
amended complaint? - according to Rule 26 (e) I would say yes b/c the lawyer must file an amended
complaint in a timely manner
What about if orally stating during trial but not written amendment? - Yes this is a violation b/c it
doesn't comport with 11(b) in that it is not..if you filed a pleading and you later find out you were not
justified you must first file a written document amending and not present the change orally to the court
Professor's Notes:
Held
Walker v. Norwest Corp
Monday, January 19, 2009
10:28 PM
Walker v. Norwest Corp
108 F.3d 158 (8th Cir. 1996).
1.
2.
3.
4.
5.
Facts:
The Walkers and their attorney Massey filed a complaint which failed to plead complete diversity and instead gave
facts which showed it was likely there was NOT complete diversity.
The dfd sent Massey a letter pointing out his error and asking him to amend the complaint or they would file for Rule
11 sanctions.
Massey sent back a letter which did not address this and so the dfd filed for the sanctions and to dismiss the case.
Rule 11 sanctions were put against them by the district court and the case was dismissed.
This court affirms the district court's ruling.
Issue:
Did the district court err in sanctioning Massey under Rule 11.
Rule:
Rule 11
Analysis:
It is Massey's job to research the domicile of the dfds in order to plead diversity jurisdiction…the court will not do it for
him but will sanction his lazy butt for not doing it.
Conclusion:
Rule 11 sanctions are upheld…screw you Massey.
Additional Web Notes:
Pay attention to what Norwest does. They’re represented by sophisticated litigation counsel. Do they follow appropriate
procedure? Rule 11(c)(1)(A) tells us that we initiate sanctions by motion after we first give the other party 21 days to
withdraw their motion. Norwest sent the guy a letter. They didn’t really serve him. Norwest appears to have messed up!
To do this right, they should have drafted its motion for Rule 11 sanctions, served it on Massey, waited 21 days, see if he
dismissed the lawsuit, and only then file the motion with the court. This is the safe harbor provision. It tries to let lawyers
work these issues out without taking up the court’s time. So how do we get an affirmation of the sanctions? Luckily,
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there’s another bit, Rule 11(c)(1)(B), which lets the court impose sanctions sua sponte. Did the district court issue a show
cause order? We don’t know. Law firms can have their own Rule 11 procedure. You would have to get your Rule 11
motions approved by your firm’s ethics committee.
1.
2.

Notes & Problems:
Rule 11(b)(3) was violated here I think
Judge cannot impose monetary sanctions for the attorney's failure to perform his job
Professor's Notes:
11(c)(4) - limitations on monetary sanctions are only allowed to be as big as is necessary to discourage this type of
behavior
Christian v. Mattell, Inc.
Monday, January 19, 2009
10:29 PM
Christian v. Mattell, Inc.
286 F.3d 1118 (9th Cir. 2003)
1.
2.
3.
4.
5.
Facts:
In 1990 Claudene Christian, then an undergrad at USC decided to make a college cheerleader doll.
Mattel later developed a doll similar to Claudene's and so Claudene sued Mattel for the tiny little sum of 2/4 billion
and various forms of injunctive relief.
Mattel hit back with the fact that they'd copyrighted this doll many years before Claudene's doll.
During a videotaped meeting with Hicks (Claudene Christian's attorney) he refused to inspect the copyright notice on
the back of the doll's head and at one point hurled the doll from the table in disgust.
Having failed to talk sense into Hicks to have him dismiss the case Mattel subsequently filed Rule 11 motion against
him. The district court ordered him to pay $501,565 in attorney fees to Mattel t which he appealed.
Issue:
Did the attorney merit Rule 11 sanctions?
Rule:
Rule 11 violation?
Analysis:
Hicks would only have had to look at the back of Barbie's head to see his claim was bogus.
Conclusion:
District court did not err in imposing sanctions. Court does note that they weighed in other, non-rule 11 factors, into the
assessment and thus the case was remanded where Hicks will most likely get hammered by the court again.
Web Notes:
There are dates stamped on the back of Barbies’ heads! If the plaintiff’s attorney had done even the most basic research,
he would have found that the suit was absolutely meritless. The plaintiff’s attorney, Hicks, did lots and lots of stuff wrong.
Why would Mattel have pursued the strategy it pursued? It files its motion for summary judgment first and then files for
Rule 11 sanctions as opposed to filing for Rule 11 sanctions first and getting the lawsuit dismissed. This massively runs up
the bill, where you could have had the same result much faster and cheaper. But Mattel wants to send a message: don’t
screw with us. They chose a more expensive and protracted strategy. This is similar to how WalMart vigorously litigates
slip-and-fall cases. The district court’s Rule 11 orders are vacated! The district court, in all its excitement, imposed
sanctions for stuff that you can’t impose sanctions on under Rule 11. You can only be sanctioned for the filing of improper
papers! The district court goes beyond that in its justification. Hicks gets a short term victory in the Court of Appeals, but
he’ll get hammered when it goes back to the district court. It’s a victory, in the long haul, for Mattel. Mattel made a
mistake when they offered up all these different grounds for Rule 11, including some that weren’t right. The bottom line
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is that Rule 11 provides a way to control the behavior of lawyers based on the filing of documents in court. It’s a good
rule! Do you factual investigation!
Notes & Problems:
6.


Professor's Notes:
Why did Mattel file the motion for summary judgment before the Rule 11 violation? What is the standard for how much the court can award for sanctions? - "least adequate sanction" is the standard
(C) Responding to the Complaint
Monday, January 19, 2009
10:29 PM
3.
Responding to the Complaint
We now shift focus from PL to DFD & examine the array of responses available to dfds and the pitfalls and
possibilities inherent in each.
Professor's Notes:
Held

(1) Default
Monday, January 19, 2009
10:30 PM
1.
Default



If dfd fails to respond they can have a default judgment issued against them (Rule 55)
Most of these types of judgments are for not paying bills but some are b/c people are too poor to hire
attorney representation.
Notes & Problems:
If a friend comes to me asking for legal advice about a complaint and summons she had just received I

would advise her to hire an attorney most likely but I'd read the complaint first.
What type of case is it so she'd know what type of attorney to hire.

Dfd has 60 days to respond if she accepts the easy way of service or 20 if she made them serve her the hard

way.
Professor's Notes:
Held
(2) Pre-Answer Motion
Monday, January 19, 2009
10:30 PM
2.
Pre-Answer Motion
Answer can include procedural as well as substantive defenses.

Dfd MUST respond to substantive allegations of the complaint.

Answer must also state counterclaims if available.

First focus is on rule 12(b) motions

Notes & Problems: (p.389)

1.
Settling most of the matters in rule 12(b)(1-7) will not require significant factual
investigation
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Motion for a more definite statement - Rule 12 (e) is best understood in historical terms …if claim is truly
so vague as to merit this most attorney's nowadays will file a 12(b)(6) motion instead
Motion to Strike - Rule 12(f) plays two quite different roles…most common use is to allow a party to
challenge a part of a pleading that fails under the substantive law, even though the rest of the pleading states a
claim or defense…for example if a negligent death occurs and someone sues for punitive damages when the law
clearly states you cannot one may use a rule 12(f) motion…other less common use is to force removal of irrelevant
and prejudicial allegations in a pleading like making nasty remarks about aparty
Motion for judgment on the pleadings - Rule 12 (c) - if complaint states breach of K and answer states dfd
couldn't pay b/c he was paying bills for sick parents this is clearly not a defense to a breach of K so it would merit
filing a Rule 12(c) motion…might also be appropriate if statute of limitations has run
Professor's Notes:
If you fail to waive service via mail your client will be charged with the bill.
If you want to change personal jurisdiction you must specially appear (if jurisdiction allows it)…file a 12(b)(2) motion
Monday, January 19, 2009
10:30 PM
3.
S
2.
Pre-answer motion stops the clock (Rule 12(a)(4))
Rule 12(g) and 12(h) aim at balancing the abuse of using Rule 12 to stop the clock from running
Notes & Problems: (p.390)
1.
Arthur sues Beatrice in federal court for negligently inflicted injuries. Beatrice's lawyer
believes that Arthur's suit suffers from several flaws.
a.
Arthur's complaint fails to allege that Beatrice's negligence caused his injuries.
What motions? - Rule 12(b)(6) failure to state a claim upon which relief can be granted
b.
Meager contact with venue - Rule 12(b)(2)
c.
Can Beatrice combine her two motions - failure to state a claim and lack of p.j.
- in the same motion? --- Rule 12(g)(1) says you are allowed to combine these two motions
d.
What if Beatrice first moves for failure to state a claim and court denies
motion?...can she include lack of p.j. in her answer then? - Respond in the answer about the
personal jurisdiction
e.
Vice-versa to d. she'd be okay to do it this way before discovery
2.
Andrea suses Bob in fed court for negligently inflicted injuries. Bob moves under Rule
12(b) to dismiss for lack of p.j., improper venue, and insufficient service of process…court denies all
3 motions.
a.
Can Bob include in his answer the defense that Andrea's complaint fails to
state a claim? - Yes Rule 12(h)(2)(a)
b.
Can Bob include in his answer the defense that the court lacks subject matter
jurisdiction? - Yes Rule 12(h)(3)
c.
Suppose Bob does not raise the lack of smj either in a pre-answer motion or in
his answer, but the judge hearing the case notices, in reading case docs, that there appears
to be no basis for federal smj. Is this defense waived? What should the judge do? - No, the
judge should dismiss the case
(3) Answer
Answer


G
Common law pleaders referred to "traverses" (modern-day denials) and "pleas in confession and
avoidance" (our modern-day affirmative defenses)
Professor's Notes:
Held
(a) Denials
Monday, January 19, 2009
10:30 PM
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Denials



The most common response to a complaint is a denial of one or more of its key allegations
General denials of all of the allegations are usually not a good idea and may get you on the wrong end of a
Rule 11 inquiry.
Professor's Notes:
Held
Zielinski v. Philadelphia Piers, Inc.
Monday, January 19, 2009
10:30 PM
Zielinski v. Philadelphia Piers, Inc.
139 F.Supp. 408 (E.D. Pa. 1956)
Pleading- Answer; Responding to the Complaint
1.
2.
3.
4.
Relevant Facts:
Pl, Frank Zielinski, was injured while working on Pier 96 in Philadelphia unloading freight, when a forklift operated by
Sandy Johnson collided with the forklift he was a passenger on.
Pl’s legs and Johnson’s head sustained injury.
Carload Contractors Inc. had apparently purchased PPI one year prior to the accident.
On the date of the accident Df, PPI, owned the forklift in the custody of Johnson but had leased it to CCI.
Legal Issue(s):
Whether the Df’s Answer to the Pl’s allegations is sufficient under FRCP 8 (b)?
Court’s Holding:
No.
Procedure:
Fed. D. Ct Eastern D of PA
Law or Rule(s):
A Party shall state in short and plain terms his Dfds to each claim asserted and shall admit or deny the averments upon
which the adverse party relies. Denials shall fairly meet the substance of the averments denied.
Court Rationale:
Df does not deny the averments in Paragraph 5 that the forklift came into contact w/ Pl except through answers to
interrogatories. Compliance w/ the Rule required the Df to file a more specific answer than a general denial. A specific
denial of parts of this paragraph and specific admissions of other parts would have warned the Pl that he had sued the
wrong Df. The answer to paragraph 5 does not make clear to Pl the defenses he must be prepared to meet. Under
circumstances where an improper and ineffective answer has been filed alleging an agency in the complaint requires a
statement to the jury that agency is admitted where an attempt to amend the answer is made after the expiration of the
period of limitation.
Df should be estopped from denying agency b/c otherwise its inaccurate statements and statements on the record which
it knew were inaccurate, will have deprived the Pl of his right to action. At least one appellate ct has stated that the
doctrine of equitable estoppel will be applied to prevent a party from taking advantage of the S/L where the Pl has been
misled by conduct of such party.
Plaintiff’s Argument:
Df failed to adequately answer the averments in the complaint in order for Pl; Dfs inaccurately answered interrogatory #2,
and misled the Pl concerning the proper party of the lawsuit.
Defendant’s Argument:
Df did not owe an obligation or duty to advise Pl or Pl’s atty that their complaint failed to name the proper party.
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Notes & Problems:
Start by getting clear about the real problem in this case and how it arose.
a.
Whoever employed Sandy Johnson was responsible for her negligent operation of the fork lift
b.
He probably felt that the dfd was admitting guilt but instead they were simply saying yes he got it without
letting the PL now they filed against the wrong company.
c.
I don't really know why that PL did not simply voluntarily dismiss the complaint against Philly Piers and refile
against Carload Contractors…
2.
(a)The judge is forcing the dfd to admit to something that is false about the forklift b/c he is essentially treating
Carload Contractors as if thy were Philly Piers (after all they did buy them) and saying there time to deny the complaint
has passed b/c of their smart aleck response initially….(b) this response doesn't seem to make sense since the court notes
that it doesn't appear this was done in bad faith (c) if rule 8(b) had been in effect (revised in 2007) would it have made a
difference? - I think yes because it says the denial must "fairly respond" to the substance of the allegation and I don't
believe that is the case here
Professor's Notes:
Is there a duty to correct an interrogatory? - Rule 37(c)(1) Failure to Disclose or Supplement

In this case the dfd is saying they are not negligent.

Break up the complaint into multiple paragraphs so you are asking one question per paragraph.

Kreder thinks this case is a close call

Rule 15(c)(1)(c): the amendment changes the party or the naming of the party against whom a claim is asserted, if

Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the
party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on
the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake
concerning the proper party's identity.
Statement of interest is a piece of evidence…an admission of interest is a non-interest (court says here is your

conclusion on that issue to the jury)
Zielinski accidentally admitted they operated the fork lift and then later denied it when they realized they were wrong

vs. Aquaslide who did it immediately…Kreder also mentioned
1.
(b) Affirmative Defenses
Monday, January 19, 2009
10:31 PM
2.


Affirmative Defenses
Zalinski demonstrated that "traverse" lives on in the form of the general or specific denial
Block sorted out whether the plaintiff/prisoner's exhaustion of administrative remedies was part of a
properly pleaded claim or was an affirmative defense…an affirmative defense held the Court
Notes & Problems: (p.398-400)
 A dfd wishing to rely on Jones failure to prove he exhausted admin. Remedies cannot use Rule 12(b)(6) b/c
he did state a claim upon which relief can be granted and it is the defenses job to prove he did not exhaust
them
 If dfd admits to the allegations of the complaint but states the prisoner did not exhaust admin remedies the
prisoner should file a 12(c) motion which is a motion for judgment on the pleadings
 None
 This time dfd warden does amend answer on remand, alleging failure to exhaust as an affirmative defense…
a.
Jones does not have to file a pleading denying the warden's allegations of failure to exhaust b/c it
is the dfds burden to prove this allegation and not the PL's
b.
If a trial judge you would give the following instructions to the jury on this issue…"on the issue of
exhaustion, you should find for the PL unless you are convinced by a preponderance of the evidence
that PL did not exhaust administrative remedies
 n/a
 See below:
a.
The dfd is compelled under Rule 11(b) to admit or deny the allegation…in this case the dfd must
admit it
b.
B did not see it so this falls in the middle area so B can deny it without causing problem
c.
B still didn't see it himself so same answer as in b.
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Professor's Notes:
Held
(4) Reply
Monday, January 19, 2009
10:32 PM
4.
Reply



In most cases, the pleadings stop with the answer.
Rule 7(a)(3) requires a reply if the answer contains a counterclaim designated as a counterclaim.
Notes & Problems: (p.401-02)
 Mfg should file a denial
Professor's Notes:
Held
(5) Amendments
Monday, January 19, 2009
10:32 PM
5.
Amendments
Rule 15 governs amendments
The rule suggests a tension btw 2 goals: easy amendment, which alows the pleadings to reflect the parties'
changed view of the case as it develops; and the notion of "prejudice" which reflects the idea that at some point
the other side has o make decision about how to present its case, decisions that become difficult if the story it has
to meet continually shifts
Notes & Problems: (p.402-03)

1.
PL files a complaint against 1st dfd for breach of K. Before dfds time to answer, PLs attorney
realizes that, in addition to being able to claim breach of K, PL also has a claim for negligence against both
1st dfd and 2nd dfd.
a.
What should PL do? - PL should file an amendment [15(a)(1)]
b.
Suppose 1st dfd answers before PLs lawyer realizes he has a claim for negligence against
the 2 dfds. How does this affect PLs course of action and the arguments he will use to support
them? - Get the courts permission to file an amendment. [15(a)(2)]
2.
PL files a complaint. Dfd answers denying liability. 10 days after filing answer, dfds lawyer
realizes she negligently failed to include affirmative defense of SOL in the answer…what should dfds lawyer
do? - petition court to file an amendment [Rule 15(a)(1)(B)]
3.
According to Aquaslide allow the change and then see if it was done in good faith or not to allow
other possible remedies - [Rule 15(c)(1)(A)]
Professor's Notes:
Lynchpin of rule 15 is prejudice
Make a timeline of how these types of things proceed pre-trial…how many days does someone have to respond to
part 1, part 2, etc…the start time of that timeline is the complaint




(a) The Basic Problem: Prejudice
Monday, January 19, 2009
10:32 PM
1.
The Basic Problem: Prejudice
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Professor's Notes:
Held
Beeck v. Aquaslide 'N' Dive Corp.
Monday, January 19, 2009
10:32 PM
Beeck v. Aquaslide 'N' Dive Corp.
562 F.2d 537 (8th Cir. 1977)
Facts:
PL injured in water slide accident.
After insurance companies for the PL, the company which installed the slide, and the slide company itself confirmed
the slide was the DF's.
3.
After the statute of limitations ran out, DF's president was asked to conduct a deposition, but before that was asked
to look at the accident site, and determined the slide was not, as previously determined by three other parties, the
property of DF.
4.
PL contends the motion to amend unfairly damaged their chances at trial, and that the trial court abused its
discretion in granting such motion.
5.
DF alleges there was no prejudice to the motion being granted, as it was a fair application of justice as FRCP 15(a)
grants in such a situation.
6.
District court granted leave to amend, and granted it after resistance from PL.
7.
DF then moved for separate trial on dispute of facts resulting from amendment, which was granted.
8.
Trial jury found for DF.
9.
DF moved for summary judgment based on the resolution of the disputed fact from the first trial, and the motion for
summary judgment was granted.
10.
On appeal, this court affirms.
1.
2.
Issue(s):
Under FRCP 15(a) was there (1) an appropriate leave to amend an answer by DF after the IA statute of limitations had
run out, and (2) a proper granting of a separate trial to determine the facts as to the dispute resulting from the
amendment?
Court's Rationale/Reasoning:
The scope of review here is for abuse of discretion, so they look at the law used and its subsequent application to the
facts at hand, or to the procedure at hand.
The record of the District Court notes sound discretion in its application of the law. D.C. looked for any bad faith or
similar behavior (delay, prejudice) on the part of DF. PL's never conceded at any time that the slide was not made by DF,
and at the time the motion to amend was presented, the court had to decide if the DF would be allowed to argue an
essential matter of fact at trial, b/c if it got to dispute the PL's allegation the slide was DF's, then there would be another
issue of fact at trial, but for the amendment would effectively be waived as a matter of statute of limitations and the
motion being denied. So this was important stuff.
The court found no elements of bad faith, only the fact that DF's president relied on three qualified statements from
experts in the field of liability, and only after a thorough examination of the site itself, two years later, by the president
of the company, that the dispute even came up. The court decided that by granting the leave to amend, that the trial
court would not prejudice the PL, but merely give it another issue of fact for which to convince the jury. Thus, no
discretion.
As to the second trial, the court again looked to abuse of discretion, and found none. The use of a trial saved lots of time
and money so as to settle a substantial matter of fact before trial, which would likely then be easier to undertake. The
damages in this case were for $2.225M, which could set back DF's in a big way, so a trial to settle a matter of fact was
important to the application of substantial justice. PL's can still sue the other slide maker, and now they could even have
expert opinion to that fact (question: would they get around the statute of limitations on a technicality of a good faith
mistake as to the owner of the product which caused injury?)
Rule:
Supreme Court's determination of the meaning of FRCP 15(a): "In the absence of any apparent or declared reason--such
as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to sure deficiencies by
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amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, etc.-the leave sought should, as the rules require, be freely given, at the discretion of the District Court. . . ."

Holding:
Yes and yes. The trial court acted with no abuse of discretion in its application of the facts at hand to the rule for
amendments. The fact that a trial would have taken lots of time and money to determine the main disputed fact, and
there was no abuse of discretion in this right either.
Professor's Notes:
Allowance or denial of leave to amend lies within the sound discretion of the trial court and is reviewable only for an
abuse of discretion

(b) Statutes of Limitations and Relation Back
Monday, January 19, 2009
10:33 PM
2.
Statutes of Limitations and Relation Back
Professor's Notes:
Held
Moore v. Baker
Monday, January 19, 2009
10:34 PM
Moore v. Baker
989 F.2d 1129 (11th Cir. 1993)
PleadingS/L and Relation Back; Responding to the Complaint
1.
2.
3.
4.
5.
6.
Relevant Facts:
Pl, Moore, consulted Df, Dr. Baker about a blockage of her carotid artery.
He recommended surgery and warned her of the risks.
Pl signed the consent form.
The operation went bad and left Pl severely and permanently disabled.
Df moved for Summary on issue of informed consent and Pl motioned to amend to include negligence.
F D Ct denied motion to amend on new ground b/c claim was barred by S/L. 11th Cir Ct of App Affirmed.
Legal Issue(s):
Whether the original complaint gave notice to the Df of the claim now being asserted which would give rise to an abuse of
discretion by trial ct denial of motion to amend?
Law or Rule(s):
Acts claimed in an amended complaint must arise out of the same conduct, transaction, or occurrence as the claims in the
original complaint.
Court Rationale:
An amendment relates back to the original filing “whenever the claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. Pl filed her
original complaint on the last day permitted by the S/L. Accordingly, the S/L bars the claim asserted in the proposed
amendment UNLESS the amendment relates back to the original. The Pl’s amended complaint must contain assertions
related to the claims in the original complaint in order that the Df would have had Notice that the new claims of
negligence might be asserted.
The original complaint focuses on the Df’s actions before surgery. The amendment focuses on the Df’s actions during and
after the surgery. The alleged acts of negligence occurred at different times and involved separate and distinct conduct.
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In order to recover on negligence Pl would have to prove completely different facts than she would otherwise have been
required to prove to recover on the informed consent claim.
Court’s Holding:
No, the new claim does not arise out of the same conduct, transaction or occurrence as the claims in the original; no
abuse of discretion.
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Plaintiff’s Argument:
Df failed to inform Pl of an alternative form of therapy, was negligent in performance of surgery and post-operative care
which are related to the same surgical episode.
Defendant’s Argument: There was no notice to the df contained in the original complaint that he would have to defend
against after care negligence.
Professor's Notes:
Court makes their ruling under 15(c)(1)(B)
Cannot take a negligent failure to inform claim and then attach the negligent med mal claim to it later
Bonerb v. Richard J. Caron Foundation
Monday, January 19, 2009
10:35 PM
Bonerb v. Richard J. Caron Foundation
159 F.R.D. 16 (W.D.N.Y. 1994)
Pleading- S/L and Relation Back; Responding to the Complaint
1.
2.
3.
4.
Relevant Facts:
Pl, Bonerb, while a patient at Df’s rehab facility, was participating in a mandatory exercise program.
Pl slipped and fell while playing basketball on Df’s recreational basketball court.
Pl moves for substitution of counsel, and afterward moved to amend complaint to include malpractice.
W D N Y diversity action before a magistrate Motion to amend granted; Trial scheduled.
Legal Issue(s):
Whether the Pl’s proposed amended complaint would be an exercise in undue delay or bad faith on the part of the Pl
against the Df?
Law or Rule(s):
Once the time for amending a pleading has expired, a party may request leave of the ct to amend, which ‘shall be freely
given when justice so requires,’ and there is an absence of undue prejudice to the opposing party, or undue delay on the
part of the party seeking or bad faith.
Court Rationale:
Cts look to the operational facts set forth in the original complaint to determine whether the Df was put on notice of the
claim that the Pl later seeks to add. Relation Back Doctrine - one who has been given notice of litigation concerning a
given transaction, or occurrence has been provided w/ all the protection that S/L are designed to afford. Thus if advised at
the outset of the general facts, the amendment will relate back even thought the S/L has run during the interim.
An amendment which changes the legal theory of the case is appropriate if the factual situation upon which the action
depends remains the same and has been brought to the Df’s attention by the original complaint. Here the allegations in
the original and amended complaints derive from the same nucleus of operative facts involving injury suffered by Pl. The
allegations not only gave Df sufficient NOTICE of the general facts pertaining to the occurrence, but also alerted the Df
that the possibility of a claim based on negligent performance of professional duties. This is all that is required of the
relation back doctrine under FRCP 15(c).
Court’s Holding:
No there is no evidence of either.
Plaintiff’s Argument:
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The operative facts in the original complaint are the same as those in the amended complaint and Df was therefor given
notice of the possibility of further claims related to those operative facts.
Defendant’s Argument:
The amendment should not be allowed b/c the counseling malpractice claim does not relate back to the original pleading
and is therefor barred by PA’s 2 yr S/L. If allowed the Df would be unduly prejudiced b/c Df will have to prepare to defend
the case anew.
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Professor's Notes:
It's very hard to make these cases consistent.
Key language p.411 - basically everything under discussion *keyed on "relation back doctrine"
Both claims are negligence - same theory of law vs. in the Moore case and our midterm they are not the same
theories of law at all
Common nucleus operative fact = this is the same incident chronologically vs. Moore where the incidents are
separate in time
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