Civil Procedure Cases And Materials 11th Edition Jack Friedenthal, Arthur Miller, John Sexton, Helen Hershkoff - Solutions

2. Federal Rule 18 describes the claims that a party is allowed to assert in a single action against an opposing party, but it does not compel joinder. Compare this approach with Michigan’s joinder provision, which is in the Supplement following Federal Rule 18. What are the arguments for a rule
1. Federal Rule 18 removes all obstacles to the joinder of claims and permits the joinder of both legal and equitable actions; the only restriction on the claims that may be joined is imposed by jurisdictional requirements. What are the advantages of permitting the liberal joinder of claims? Are
8. Recall the values that inform a sound and efficient system of civil procedure, pp. 4 5, supra. What are the social costs of blocking legitimate lawsuits from access to the public courts or imposing sanctions on suits that have a basis in fact and law but lose?See Coleman, The Vanishing
6. Courts have statutory authority under 28 U.S.C. § 1927 to impose excess costs on an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously.” It is an open question whether the imposition of sanctions requires a showing of subjective bad faith or objective
5. Congress has established special sanction regimes for particular kinds of claims.Sanctions under the Private Securities Litigation Reform Act, see p. 602, supra, closely resemble those available under the 1983 version of Rule 11 and are mandatory once a violation of the sanction provision is
4. How does Twombly affect Federal Rule 11? The consensus is that under the 1993 version of Rule 11, sanctions are not warranted simply because a complaint does not survive a Rule 12(b)(6) motion. However, one commentator reports that post-Iqbal, “there has been a veritable explosion of
3. Is it appropriate to award sanctions under Federal Rule 11(b)(3) if, after discovery, a factual contention is found to lack evidentiary support? If a paper has been signed, isn’t it appropriate to look at the pleading at the time of certification to determine whether sanctions ought to be
2. What constitutes a “reasonable inquiry” that contentions are legally sufficient under Rule 11(b)(2)? In GOLDEN EAGLE DISTRIBUTING CORP. v. BURROUGHS CORP., 801 F.2d 1531 (9th Cir. 1986), rehearing denied with a dissenting opinion 809 F.2d 584 (9th Cir. 1987), plaintiff’s counsel cited a
1. Does Rule 11(b)(1) permit sanctions for papers that are legally and factually well grounded, but submitted for an improper purpose? In Sussman v. Bank of Israel, 56 F.3d 450(2d Cir. 1995), the Second Circuit reversed the award of sanctions based on a nonfrivolous complaint that had been filed in
3. As you read the material in this Chapter, consider whether Rule 11 serves the same function as verification under Rule 23.1. See Comment, Verification of Complaint in Stockholders’ Derivative Suits under Rule 23(b), 114 U. Pa. L. Rev. 614 (1966). How do sanctions under the two rules differ?
2. In those state courts in which fact pleadings generally do not have to be verified, there are certain exceptions. Some of the typical ones found in state practice are: petitions for divorce; petitions brought by the state to enjoin a nuisance; and complaints to obtain support of an illegitimate
1. Given the complexity of contemporary finance, is it realistic to condition the ability to bring suit under Federal Rule 23.1 on the investor’s personal knowledge of the transactions that give rise to her injury? Is Justice Harlan’s endorsement of third-party verification a more realistic
2. Are supplemental pleadings governed by the same relation back analysis as amended pleadings? One view is reflected in DAVIS v. PIPER AIRCRAFT CORP., 615 F.2d 606, 609 n.3 (4th Cir.1980). In that case, plaintiff moved to amend his complaint pursuant to Rule 15(a)(1)to reflect his new capacity as
1. Federal Rule 13(e) permits defendants to use a supplemental pleading to assert counterclaims that arise after filing an answer. What policy reasons would justify treating plaintiffs differently than defendants? Why should a plaintiff’s right to file a supplemental pleading under Rule 15(d) be
3. Before Rule 15(c) was amended the circuit courts disagreed whether to characterize relation back as “substantive” or “procedural.” In SCHIAVONE v. FORTUNE, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), a diversity case, plaintiffs mistakenly failed to name the correct defendant in
2. Assume all of the facts set out in Note 1, except that plaintiff, not knowing the identity of the arresting officers, named in his original complaint the police department and two police officers named as “John Doe” and “Jane Doe” defendants. Would these claims relate back under Krupski?
1. Test your knowledge of the relation back doctrine with the following problem:Assume that during the course of an arrest in Peoria Heights two police officers handcuff the detainee and he suffers broken bones. The detainee is later released without being charged. Two years after the event, the
3. Before Rule 15(c) was amended the circuit courts disagreed whether to characterize relation back as “substantive” or “procedural.” In SCHIAVONE v. FORTUNE, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), a diversity case, plaintiffs mistakenly failed to name the correct defendant in
2. Assume all of the facts set out in Note 1, except that plaintiff, not knowing the identity of the arresting officers, named in his original complaint the police department and two police officers named as “John Doe” and “Jane Doe” defendants. Would these claims relate back under Krupski?
1. Test your knowledge of the relation back doctrine with the following problem:Assume that during the course of an arrest in Peoria Heights two police officers handcuff the detainee and he suffers broken bones. The detainee is later released without being charged. Two years after the event, the
4. State judicial systems also provide for amendments during and after trial. In MOORE v. MOORE, 391 A.2d 762 (D.C. Ct. App. 1978), a custody suit brought by the father, the court granted the mother’s post-trial motion to conform the pleadings to the evidence and for attorney’s fees, and
3. Federal Rule 15(b) permits amendment of the pleadings both during and after trial.How does the procedure described in Rule 15(b)(1) differ from that in Rule 15(b)(2)? What are the consequences of a failure to amend under each subdivision?
2. Federal Rule 15(a) permits amendment without consent of the court. What is the justification for this rule? Until 2009, the rule allowed a party to amend as a matter of course only before being served with a responsive pleading. What are the time limits under the current rule? Are the time
1. Parties may amend their complaints at various points in a litigation. In Beeck, defendant initially moved to amend before the trial took place. Should the court have granted the motion then?
3. Allegations to which a reply is not required are considered avoided or denied and plaintiff may controvert them at trial. See Federal Rule 8(b)(6); N.Y.C.P.L.R. 3018(a).Conversely, matters requiring a responsive pleading are taken as admitted if not denied in the reply or if a reply is not
2. A plaintiff must reply to an answer that contains counterclaims; otherwise, a reply is within the discretion of the court. See Federal Rule 7(a).627Why, given liberal discovery rules, should it ever be necessary to order a reply? Might a reply be helpful in laying the foundation for a motion to
1. Is Federal Rule 7(a), when read in conjunction with Rule 8(b)(6), consistent with Federal Rule 8(b)(1)–(5), and the requirement that a defendant answer plaintiff’s allegations specifically?
4. Plaintiff may challenge the propriety of an affirmative defense by motion under Rule 12(f). Before Twombly and Iqbal, an affirmative defense generally was treated as sufficient if it provided notice of the possible existence of the defense and defendant’s intention to advance it, but courts
3. Can the court, sua sponte, consider a defense that defendant has failed affirmatively to plead? In DAY v. McDONOUGH, 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006), the Supreme Court held that district courts may but are not required to raise sua sponte the timeliness of a state
2. In light of the policies identified in Ingraham, would defendant in a breach of contract action be required to set forth the clause of the contract that provides a defense to the claim?See PYCA Industries, Inc. v. Harrison County Waste Water Management Dist., 177 F.3d 351, 362–63 (5th Cir.
1. Can Taylor be reconciled with the holding in Ingraham that a limitation of damages is an affirmative defense under Federal Rule 8(c)? Which court makes the better argument?Should it matter that the limitation of damages was not raised until the appeal? Is it relevant that, under
3. Conjunctive Denials A conjunctive denial, sometimes called a copulative denial, is a type of “negative pregnant,” and involves a statement in which all propositions considered together are not true, but which does not specifically deny
2. “Negative Pregnant” Denials A “negative pregnant” is a statement phrased in the negative that carries an affirmative implication. Suppose plaintiff alleged that defendant owes her $89,000 under a contract. Defendant’s denial “that he owes plaintiff $89,000” could be held to be an
1. Denials for Lack of Information Under Federal Rule 8(b)(5) a party may deny an allegation on the ground that it “lacks knowledge or information sufficient to form a belief about the truth” of the allegation. Similar provisions exist under state codes.But there are limits on the use of this
3. Are denials subject to the Twombly and Iqbalstandard of plausible pleading? Professor Miller has concluded that the answer is “[s]omewhat uncertain,” focusing on the absence from Rule 8(b) of “the magic word ‘showing,’ ” and the fact that defensive pleading typically is alleged “in
2. To what extent should defendant be permitted to respond that “he neither admits nor denies” plaintiff’s allegations? Should it make any difference whether or not a general denial is allowed? In many jurisdictions statutes specifically prohibit “evasive denials.” E.g., Conn.Gen. Stat.
1. In BIGGS v. PUBLIC SERVICE COORDINATED TRANSPORT, 280 F.2d 311, 313–14(3d Cir. 1960), a diversity of citizenship case, defendant generally denied plaintiff’s jurisdictional allegations, including an express claim that defendant was a New Jersey corporation. The court stated:We cannot for a
3. Would it be an abuse of discretion to dismiss a complaint with prejudice without the court first granting plaintiff leave to amend? See Gelbach, Note—Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery, 121 Yale L.J.2270 (2012) (discussing rate of
2. How do Twombly and Iqbal affect the standard for assessing mixed questions of fact and law under Federal Rule 12(b)(6)? HARTFORD ACCIDENT & INDEMNITY CO. v.MERRILL LYNCH, PIERCE, FENNER &SMITH, INC., 74 F.R.D. 357 (W.D. Okl. 1976), was a suit by an insurer that had issued a blanket banker’s
1. Would Twombly and Iqbal affect the result in American Nurses? Is it significant that federal civil rights cases have been dismissed at a higher rate than other cases under the standard of plausible pleading? See Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate
2. In ANHEUSER–BUSCH, INC. v. JOHN LABATT LTD., 89 F.3d 1339, 1349 (8th Cir.1996), certiorari denied 519 U.S. 1109, 117 S.Ct. 944, 136 L.Ed. 2d 833 (1997), plaintiff failed to mention punitive damages in its pleadings or answers to interrogatories. Plaintiff did plead a valid claim for injurious
1. Most states follow the federal rule that relief is not limited by the ad damnum clause.Why should a defendant who defaults be protected by a cap on damages, but a defendant who participates be exposed to damages greater than those pleaded by the plaintiff? See 10 Wright, Miller & Kane, Federal
2. The normal consequence of failing to plead special damages is being barred from proving them at trial. However, with regard to a few types of cases the existence of special damages is an integral part of the claim, and the failure to plead them renders the complaint subject to dismissal. Should
1. Federal Rule 9(g) requires the pleading of special damages with particularity, but does not define special damages. A typical definition looks to whether the damages would be“unusual” for the claim asserted. Under that standard, would the complaint be required to allege the following items
4. In PFEIL v. STATE STREET BANK AND TRUST CO., 671 F.3d 585 (6th Cir. 2012), participants in a pension plan alleged that defendant breached its fiduciary duty as pension administrator under the Employee Retirement Income Security Act by continuing to allow participants to invest in GM common stock
3. In 2006, securities litigation filings were forty-three percent lower than the ten-year historic average of one hundred and ninety-three since enactment of the PSLRA.See Bloomenthal & Wolff, Are Securities Fraud Class Actions Coming Back?, Securities and Federal Corporate Law § 16.3 (2012). In
2. In MATRIXX INITIATIVES, INC. v. SIRACUSANO, 563 U.S. ___, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011), the Court held that the Tellabsstandard can be satisfied even without“an allegation of statistical significance to establish a strong inference of scienter,” id. at ___, 131 S.Ct. at 1324, 179
1. In DURA PHARMACEUTICALS, INC. v. BROUDO, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), cited in Twombly, p. 571, supra, the Court held that a complaint under the Private Securities Law Reform Act will be dismissed unless plaintiff alleges that defendant’s misrepresentation caused
2. DENNY v. BARBER, 576 F.2d 465 (2d Cir.1978), was a case remarkably similar to Denny v. Carey. Both were brought by the same plaintiff, represented by the same counsel, and the same public accounting firm was one of the defendants in each case. The complaint alleged, inter alia, that defendants
1. Defendants in the principal case argued that applying a heightened pleading standard under Rule 9(b) would protect professional reputations and deter the filing of meritless cases aimed at a quick settlement. Why did the court reject their position? Is there a danger that too high a pleading
4. What is the effect of a motion for a more definite statement on the timing of a responsive pleading? See Rule 12(a)(4)(B).
3. Assume plaintiff in Garcia had not included any facts in the complaint indicating either a conditional or absolute privilege. How could defendant have raised these issues? See Federal Rule 8(c). Since privilege is obviously a matter of defense, why should it be significant whether plaintiff
2. Suppose the court had denied defendant’s Rule 12(e) motion. How else might defendant have learned the details of the alleged defamatory publication? What are the advantages of the Rule 12(e) motion compared to these other means?
1. In current practice, Rule 12(e) motions generally are disfavored and granted only when the pleading is so unintelligible as to make the opposing party unable to respond. To what extent could plaintiff in Garcia have phrased the complaint to avoid the granting of defendant’s motions? Could he
3. Plaintiffs in Erickson and Swanson, like Dioguardi, p. 559, supra, appeared pro se. The number of pro se federal litigants is estimated to be from about twenty-five to thirty-seven per cent of total cases filed. See Rhodes, The Battle Lines of Federal Rule of Civil Procedure 8(a)(2) and the
2. The majority in Swanson, Note 1, above, relied on Swierkiewicz, p. 565, supra, cited with approval in Twombly. Although not overruled, is Swiekiewiczinconsistent with the requirement of plausible pleading? Is it consistent with Form 11? Compare Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d
1. Can Erickson be reconciled with Twombly and Iqbal? The Seventh Circuit, reversing the District Court’s dismissal of a Fair Housing Act claim, has explained:* * * Critically, * * * none of the three recent decisions [Twombly, Iqbal, and Erickson] ** * cast any doubt on the validity of Rule 8 *
10. Can a court reject a pleading for including too much information? In some cases, the problem is not that of the complaint’s length but rather the inclusion of facts that constitute a defense to the claim and so “render success on the merits impossible.” Trudeau v. FTC, 456 F.3d 178, 193
9. Twombly and Iqbal provide a window into a profound disagreement among the Justices on the effectiveness of judicial case management, a topic that we will study in Chapter 11. The Twombly majority commented that “the success of judicial supervision in checking discovery abuse has been on the
8. Congress has held hearings on whether the plausible pleading standard imposes barriers to judicial access that are inconsistent with democratic values. See Has the Supreme Court Limited Americans’ Access to Courts?, Hearing Before the S. Comm. on the Judiciary, 111th Cong. (2009).591With this
7. State courts are not required to follow either the Federal Rules or federal judicial standards governing the sufficiency of a complaint. However, as Justice Stevens pointed out in his dissent, about half of the states did embrace the Conley “no set of facts” standard. State courts so far
6. By referring to the test for whether a complaint survives a motion to dismiss as a“context-specific task,” has Iqbal remained faithful to the principle of transsubstantivity, or does the pleading standard now depend on the category of the claim? What are the costs and benefits of having
5. For an allegation to be plausible must it be the best explanation, the most likely explanation, a reasonable explanation, a probable explanation, a possible explanation, or the only explanation of the conduct that is alleged to be illicit? See Cavanaugh,Making Sense of Twombly, 63 S.C. L. Rev.
4. Consider again the requirement that allegations be “plausible.” In light of the religious and ethnic background of those who took responsibility for destroying the World Trade Center, why was it not plausible to infer that the government adopted a policy aimed at members of this religious
3. Even before Twombly and Iqbal, some courts imposed heightened pleading standards in civil rights and complex cases. See p. 569, supra. Does the new standard raise the bar by requiring the pleading of particularized facts? See Clermont & Yeazell, Inventing Tests, Destabilizing Systems, 95 Iowa L.
2. Does Iqbal retreat from the traditional rule of presuming the truth of plaintiff’s allegations? Consider the fact that plaintiff alleged in his complaint that defendants “knew of, condoned, and willfully and maliciously agreed to subject him to harsh confinement as a matter of policy solely
1. Does Iqbal clarify when a complaint is sufficient? Does it change the test announced in Twombly? Does the requirement that a pleading contain “sufficient facts” differ from the requirement that the allegations be “plausible”? See Reinert, Pleading as Information-Forcing, 75 Law &
2. Prior to Swierkiewicz, the Court in LEATHERMAN v. TARRANT COUNTY NARCOTICS INTELLIGENCE & COORDINATION UNIT, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), unanimously held that Rule 8 did not impose a heightened pleading standard on civil rights complaints. However, the Court
1. Would a complaint alleging a violation of Title VII, the statute at issue in Swierkiewicz, be sufficient if it stated, “I was denied employment because of my gender”? See Sparrow v.United Air Lines, Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000). What additional facts did Swierkiewicz include in
4. Consider which, if any, of the following pleadings would be sufficient to state a claim under Federal Rule 8(a)(2). Does Form 11 provide a benchmark for judging any of these?Which are too vague? Which are too specific?(a) D is legally liable to P for damages.(b) D negligently caused P’s
3. What are the implications of requiring plaintiff to plead a detailed statement of facts, rather than simply notice of his claim? According to the Seventh Circuit Court of Appeals,“[T]he number of factual details potentially relevant to any case is astronomical, and requiring a plaintiff to
2. Examples of the simplicity of pleading under Rule 8(a) are found in the Appendix of Forms, which are set out in the Supplement following the Federal Rules of Civil Procedure;in particular see Forms 11 and 15. Note that in 1946, Rule 84 was amended to clarify that the Forms were not mere guides
1. The Conley litigation was brought by a group of African-American workers alleging that their union had discriminated against them in violation of the duty of fair representation under the federal Railway Labor Act. See Sherwin, The Story of Conley: Precedent by Accident, in Civil Procedures
2. Pleading standards differ in other countries. Generally, courts abroad require a plaintiff to allege facts supporting her claim with reasonable particularity.See Sherman, Transnational Perspectives Regarding the Federal Rules of Civil Procedure, 56 J. Legal Educ. 510, 515 (2006). The Principles
1. “Quite commonly an allegation has been held bad as a statement of law only. The stating of evidence, while subject to criticism, is not so often held to render the pleading bad, since the court itself will draw the ultimate conclusion where it is the one necessarily following from the
3. Plaintiff was given leave to amend the complaint after the Gillispie decision. Suppose that plaintiff’s amended complaint also is deficient. Will she be given leave to amend again?How should the right to amend affect the question of whether or not a pleading is or is not satisfactory?
2. To what extent might the court in Gillispie have been motivated by the notion that a detailed account of the facts might well show that plaintiff did not have a valid claim for relief? Is it significant that at the time of the Gillispie decision North Carolina did not have a provision for
1. Is the court in Gillispie legitimately concerned with the inability of defendants to ascertain the claims against them in order that they might answer and prepare their defenses? Can it be said that the pleading in Gillispie is unsatisfactory because the trial judge will not know what evidence
4. By contrast to the Federal Rules, the writ system was claim-specific, not transsubstantive, so court procedure differed depending on the injury alleged and the relief sought. Sir Henry Maine famously stated that the common law developed “in the interstices of Procedure” as courts adapted the
3. If defendant entered a plea, plaintiff had three choices. First, he could demur on the ground that the plea did not state a valid defense. For example, if plaintiff had alleged a breach of contract and defendant had pleaded that he was a minor at the time the contract was entered into, the
2. A substantive response to a claim, other than an expression of total agreement, would require defendant to demur or to plead. A demurrer would challenge the legal sufficiency of the plaintiff’s declaration. If defendant did not demur, he responded to the declaration in a plea. Pleas were of
1. At common law, plaintiff’s claim was set forth in the declaration. Stripped of much verbiage, and stated in modern English, it might have said: “Defendant promised to deliver a horse to plaintiff and plaintiff promised to pay 100 dollars for it, but defendant has refused to deliver the
4. In a contract action, may a claim for money had and received based upon a conversion be brought as a counterclaim under a statute that provides that “in an action on contract, any other cause of action on contract” may be brought as a counterclaim? See Manhattan Egg Co. v. Seaboard Terminal
3. Governments generally are immune from suit except as their immunity has been expressly waived by statute. Suits in contract are more commonly consented to than suits in tort. See 3 Davis, Administrative Law Treatise § 25.01 (1958). Under a statute consenting to suit in contract only, should a
2. Why did the court hold that the action was in contract for purposes of the statute of limitations but in tort for purposes of deciding whether the Board was liable for the Regents’action?
1. Is Garrity, in either its statute-of-limitations aspect or its liability aspect, concerned with the theory of the pleading? In what way, if any, is the problem in Garrity different?
3. A demand of the relief, to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.
2. A statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended;
2. Although the division between law and equity in the federal courts never took the form of separate courts or judges of law and equity, the two were separately administered in the federal system until 1938. From the beginning, procedure at law was conformed to that of the state in which the court
1. What differences do you find between procedure at common law and procedure in equity as it is described by Bowen? What are the differences in pleading, the manner of receiving evidence, the attitude toward singleness of issue, and the determination of questions of fact?The rules of evidence,
2. Plaintiff leased a farm with cattle to Y for one year. After a few months, Y sold the cattle to defendant and absconded. What theory might be used to allow plaintiff to bring trover against defendant? See Swift v. Moseley, 10 Vt. 208 (1838).
1. Plaintiff pawned a jeweled hatband to X for 25 pounds with no certain time fixed for redemption. X delivered it to defendant, and then died. Plaintiff tendered 25 pounds to the executrix, who refused it, and then demanded the hatband of defendant. Would trover lie?See Ratcliff v. Davies, Croke
2. If defendant so negligently kept twenty barrels of plaintiff’s butter that “they were become of little value,” would trover lie? See Walgrave v. Ogden, 1 Leon. 224, 74 Eng. Rep.205 (K.B.1590).
1. Plaintiff’s goods were delivered by a ship’s captain to defendant wharfingers to be held for plaintiff. The goods were then lost or stolen from defendants. Could defendants be said to have converted them? In ROSS v. JOHNSON, 5 Burrow 2825, 98 Eng. Rep. 483 (K.B.1772), Lord Mansfield said
2. That there was no conversion in the defendant. The plaintiff by laying his goods where they obstructed the defendant from going to his chest, was in that respect a wrong-doer. The defendant had a right to remove the goods, so that thus far he was in no fault. Then as to the not returning the
1. That the plaintiff having made satisfaction to A for the goods, had thereby acquired a sufficient property in them to maintain trover.
2. Trials ordinarily were held at common law before a single judge and a jury. After verdict, if the losing party wanted the judgment of the entire court on a question of law that was involved in the case, that party asked for a rule nisi. A hearing before the court en bancwas then held, and if
1. In what ways does Justice Blackstone differ from Chief Justice De Grey? From Justice Nares? On what facts might Chief Justice De Grey and Justice Nares reach a different result?Chief Justice De Grey and Justice Gould? Since Justice Blackstone believes an action in case would lie against
3. In England’s American colonies, the distinctions between the forms of action, although recognized, were not enforced with the rigor that characterized the procedure of the mother country. For example, there are instances of the use of both trespass and case for the specific recovery of
2. Maitland’s conclusions that trespass grew out of the appeal of felony and that case drew its authority from the Statute of Westminster II are debatable. Others have found the root of trespass in the assize of novel disseisin, in the proceedings of local courts, and in queralae

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Civil Procedure Cases And Materials 11th Edition Jack Friedenthal, Arthur Miller, John Sexton, Helen Hershkoff - Solutions

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