Agenda for 2nd Class

1. Agenda for 2nd Class • Misc. • Nameplates out • Use large black marker • Extra cardstock at front • Handouts • Slides • Pleading Handout • If you have extra handouts or markers, pass them to the front and give them back to me • Office hours: Mondays 2-3 • Lunch today, Rm 106, 12:15-1:15. We can walk over together • Model Answer -- on webpage, thru HoGo.com • Audio Recording -- on Blackboard • Blackboard Quiz -- Feedback & explanation • Service of Process & Due Process (cont.) • Service under FRCP • Complaint and Motion to Dismiss

2. Assignment for Next Class I • Review any questions from today’s assignment that we did not cover in class • Complaint and 12(b)(b) Motion • FRCP 2, 3 , 8(a),(d) & (e), 12(b)(6) • Yeazell, pp. 361-80 • 3 Blackboard questions on Complaints. • Questions on Complaint and 12(b)(6) (next two slides) (WG1-WG7). • Pleading Handout • Q1 (WG1), Q2 (WG2) ….. Q7 (WG7) • So everyone has 2 mandatory writing questions • And 12 optional writing questions • Optional. Glannon 471-75, 480-84, 613-45 • The last part includes a very helpful, annotated complaint

3. Questions on Haddle • WG1. Briefly summarize Haddle v. Garrison. • Your summary should include the parties, the key allegations of the complaint, the way each court which heard the case ruled, and why. • Try to keep your summary brief. The summary I drafted is 4 sentences and 92 words. Concision is a virtue! • WG2. As stated in Haddle v. Garrison, a "court must assume that all of the factual allegations of the complaint are true." Paragraph 21 of the complaint asserts that "Plaintiff has been injured in his person and property." Why wasn't this allegation sufficient to defeat the defendant's motion to dismiss? • WG3. The plaintiff in Haddle v. Garrison, won a great victory in the U.S. Supreme Court. Does that mean that the case is over and that the defendant must pay the plaintiff the compensatory and punitive damages requested in the complaint's Prayer for Relief? If not, what happens next?

4. Questions on Haddle II • Read 42 U.S.C. § 1985 carefully. There’s an excerpt on p. 369 of Yeazell, but here’s a fuller text that might be more helpful: • (2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified…. • (3) … in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. • WG4. What are the elements of a cause of action under that statute? That is, list all the things that the plaintiff will have to prove to prevail if the case goes to trial. Consider carefully which elements are linked with “or” and which with “and.”

5. Questions on Haddle III • WG5. For each element you listed, find the corresponding allegations in the complaint (pp. 366-68) • WG6. Suppose a plaintiff alleges that two or more persons conspired to deter him or her from testifying and that, on account of that conspiracy, s/he did NOT testify. In that situation, can you argue that s/he does NOT need to allege (or prove) that s/he was injured in person or property? In answering this question, consider whether there is a difference between “injury” and “deprivation” in the last clause of 1985(3). Do the courts that decided Haddle interpret the statute to require injury in person or property in such a situation? • WG7. Does the complaint allege that Haddle was deterred from attending or testifying? Or does it allege that Haddle was injured on account of having attended or testified? Or does it allege both? What do the court opinions assume or assert are the answers to those questions? Which is more plausible? Does it matter?

6. Last Class • Newspapers, Public Radio, Clerking • Mostly about reading a case carefully • Very important to understand • Who parties are • Who won at each stage of proceedings and why • Will help you in all classes, especially in Civil Procedure • Constitutionality of posting changes • Supreme Court ruled for tenants in their constitutional challenge to posting • In spite of 6th Circuit precedent and longstanding practice in states of allowing posting • Primarily because of changes in jurisprudence • Formalism to realism • Also perhaps because of changes in economy and society • Children more unruly? • Rural to urban, fewer adults at home during day

7. Greene v. Lindsey Questions (cont’) • 5) Did the Supreme Court reach the right decision? Why? • 6) Do you think tenants (including those not parties to Greene v. Lindsey) generally benefited from this decision? How might the decision help them? How might it hurt them? • 7) What is the rule of law ("the holding") established by this case? Try to state it in a single sentence. • 8) Suppose you rent a posh apartment in Beverly Hills. The building has a doorman, 24-hour security, and other amenities. The landlord wants to evict you and attempts to notify you by posting the summons on the door to your apartment. You don't see the summons, and the landlord evicts you. You bring suit in federal court arguing that service of process was unconstitutional. Are you likely to win? Be sure to think of arguments both for why you might win and for why you might lose. Which are more persuasive?

8. Greene v. Lindsey Questions (cont’) • 9) Suppose you park your car in unapproved spot on the USC campus. A USC Transportation Services employee tacks a notice on your car stating that you must move it within 24 hours or it will be towed. You don't see the notice in time, and USC tows your car. You file suit in federal court arguing that USC violated your Due Process rights. Are you likely to win? Be sure to think of arguments both for why you might win and for why you might lose. Which is more persuasive?

9. Service of Process under FRCP 4(c)(1). Summons and complaint served together 4(c)(2). Service by anyone 18 or older not a party 4(e). Service on individuals by (1) method allowed by state law, or (2) delivering copy personally or leaving copy at home with person of suitable age living there 4(h)(1) Service on corporations by (A) method allowed by state law, or (B) delivery to officer, managing or general agent, agent authorized to receive service Officer = very high ranking person, e.g. CEO, Secretary, Treasurer State law usually requires designation of someone to receive service Names and addresses on website: http://kepler.sos.ca.gov/ All methods must be constitutional Waiver procedure in 4(d) seldom used, because defendant gets 30 days to answer complaint, rather than ordinary 21 9

10. Other Relevant FRCP Provisions 1. Rules “construed … to secure the just, speedy, and inexpensive determination of every … proceeding” 12(b)(4). Motion to dismiss for “insufficient process” Defect in summons (rare) Plaintiff can refile (start over) 12(b)(5). Motion to dismiss for “insufficient service of process” Plaintiff can refile 55. Default judgment If defendant fails to respond to summons or otherwise defend the case, court may enter judgment against it. 60. Parties may receive relief from judgments (including default judgments) if there was a clerical mistake, for “mistake…. or excusable neglect,” or other reasons. Very unusual 10

11. Questions on Service of Process Under FRCP I • Prof. McCaffery sues Prof. Gross for giving him a hairy hand. Prof. McCaffery attempts to serve process but the process server he hired is unable to find Prof. Gross and her house is abandoned. So Prof. McCaffery publishes the summons in the Los Angeles Times. Is service of process valid? • Assume that the case was commenced in the federal district court for the Central District of California and that Prof. Gross resides in that district • Note that California statutes include the following provision: • Cal. Code Civ. Pro. 415.50. Service by publication • (a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article… • (b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served….

12. Questions on Service of Process Under FRCP II • It has been proposed that the Federal Rules of Civil Procedure should be amended to add a new FRCP (4)(e)(2)(D) that would read:  • (D) delivering a copy of each by electronic means at a location previously accessed by the individual within 60 days of delivery. • a) Is this proposed amendment constitutional? What factors are relevant to this question? • b) Is this amendment a good idea? If you were on the Rules Advisory Committee, would you recommend its adoption? • c) If it were your responsibility to draft a new rule relating to electronic service of process, would you propose different language? If so, draft the rule you would propose.  • How could one argue that service of process by electronic means is already allowed under the FRCP in some circumstances? If you need more information to answer this question, what information do you need? I do not encourage you to do research to find the information you would need. Rather, I hope you will read FRCP 4 carefully to see what provision or provisions of it could be construed under some circumstances to allow electronic service of process.

13. Introduction to Pleading • First major phase of lawsuit • Complaint, answer • Functions • Notice • Identify issues for discovery and trial • Weed out bad claims • Very hard for 1L students • because closely related to discovery and trial • because closely related to substantive law • Good complaint alleges facts relating to every element of cause of action • because law recently changed • Iqbal (2009)

14. Complaint in FRCP I • 3. Complaint filed with court • 4(c)(1). Complaint served on defendant with summons • 8(a). Complaint has 3 parts • Jurisdictional statement. See Haddle, p. 366 ¶ 5 • Subject matter jurisdiction (diversity or federal question) • NOT personal jurisdiction (location of court) • Short and plain statement of claim. See Haddle, pp. 366-68 ¶¶ 7-23 • Plaintiff usually must plead facts related to every element of a valid cause of action • Need not cite legal authority • Demand for relief. See Haddle, p. 368 last paragraph • How much money; what kind of injunction • 8(d). Can plead in alternative, even if both can’t be true • 8(e). Complaint interpreted “so as to do justice” • See also Rule 1. Rules construed “to secure just, speedy, and inexpensive determination” of cases

15. Complaint in FRCP II • 10. Formalities – caption, etc. • 11. Complaint must be truthful, e.g. supported by legal and factual research (more detail next week)

16. 12(b)(6) Motion to Dismiss • Defendant challenges complaint by making motion to dismiss for failure to state a claim upon which relief can be granted • Judge assumes all facts in complaint (but not legal conclusions) are true • Case dismissed, if law would not allow plaintiff to prevail • Motion granted if law does not support plaintiff’s claim • E.g. Prof. Klerman called on John in class, wherefore John prays $1,000,000 in damages. • If motion granted, plaintiff almost always has chance to amend • Core purpose – dismiss claims not supported by law • May require resolution of difficult, close, and/or new legal issues • Subject of next class • Newer purpose – dismiss claims with insufficient factual support • See Iqbal. very controversial, because plaintiff may need discovery to get factual support, but not discovery if case dismissed • Subject of class after next • Called “demurrer” in common law and in many state law systems