Civil Procedure I

29 September

• Writing assignment: Strategy for how to respond to a 12(b)(6) motion.
• Trial court: you might just say "good afternoon, your honor" instead of the more formal "may it please the court.
• Slow down in oral argument. :)
• A "cold bench:" no questions from the judges at oral argument.
• Very interesting oral argument demonstration.
• Tentative ruling: sometimes released before the hearing. It means changing that outcome is a long shot.
• Lagatree
  Where do the "facts" in this case come from? The complaint, one must assume. In general, we might not be able to tell whether this was litigated to completion, if there was summary judgment, or if this was a motion to dismiss. Each of these will have some different sources of fact.

  Rule 11 (coming next week): requirement not to file meritless cases. A minimalist complaint will not cover this up in the long run.

  Holding: termination for refusal to sign a pre-dispute arbitration clause is not a violation of public policy.

  Basically, in CA, it is legal to fire people who refuse to sign an arbitration clause.

  What's this "without leave to amend business?" It means that when we sustain a demurrer (or 12(b)(6) motion), that means there is no reasonable possibility that the defect in the complaint can be cured by amendment. Basically, there's nothing that can be added to the complaint that would make it a bona fide cause of action. This is different from "dismissed with prejudice" (although this was also dismissed with prejudice).

  Was there a factual dispute here? We don't yet know: the defendant hasn't taken a position on any of these facts.

• Be attentive to procedural details in other classes: it teaches us civ pro, but it also helps get a better understanding of what the court is considering.
• Bennet
  A case about pleading: sure the complaint could have been better, but they read it favorably to the plaintiff.

  "Intent can be averred generally." There are some things that have to be pleaded specially (fraud, e.g.). But you don't have to get really factually specific about intent: you can just be conclusory and general (e.g., "the defendant intended these acts.").

• Working backwards with Lagatree: we have a complaint and a brief.
• The complaint: The numbers on the left-hand margin are required in CA. Note that ¶ 3 and 4 can not both be true. You can make alternative or inconsistent allegations. Now every law firm is either a corporation or a partnership. So in the answer, they'll admit one and deny the other.

  Note also the use of "informed and believes." Signals that this is a thing we hope to be able to prove through discovery.

• Now, the brief: introduce with a sentence that captures attention and goes a long way towards summing things up. This is good in oral argument also. And an executive summary: 1 page or less (15-30 seconds) that sketch the main points for the listener/reader.

  Brief headings are sentences. If you made a TOC with all the headings in it, it would be an outline of the whole brief.

• Back with 12(b)(6): the five kinds of responses:
  (6) is the only one that is about the substance of the complaint-- is there a legal right that has been violated. (1)-(5) and (7) are procedural/technical.

  So what happens if the motion is denied in part (i.e., some cause of action remains)? Then the defendant has to file an answer. There's no right to appeal at this point, because there has been no final judgment. You only get to appeal when there's nothing left for the trial court to decide (i.e., there has been judgmnet).

• Leave to amend: Conley v. Gibson: a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no facts in support of his claim that would entitle him to relief.

  Basically, construe complaints liberally. We want to decide cases on their factual basis, not just argument.

  Leave to amend is simply permission to fix the complaint. It's generally granted if there's been an oversight, or an element is omitted, etc.

  If a motion to dismiss is granted with leave to amend, then you're back at square 1: first amended complaint gets issued, defendant can decide whether to 12(b) again, or file an answer.

• "Plaintiffs have suffered damages in excess of $75,000, the exact amount to be proven at trial."
• If you're a defendant, and your 12(b)(6) motion is denied, or is granted in part, you need to file an answer, usually in relatively short order.

1 October

• The complaint.
• Note that the jurisdiction statute cites multiple bases of jurisdiction. That's a good practice. As well as the substantive federal law giving rise to jurisdiction.
• And venue, as well: a bried explanation; just to be helpful to the law clerk.
• We want to think of each section as possibly being read separately-- so start the factual allegations with a strong summary statement. Someone might just read that and the causes of action. So we don't want to editorialize, but we want an entry point into the story that sets it up from the plaintiff's point of view.
• We also call attention to the point that the justification for deadly force was ended when Raheem was pulled off of Sal. ¶ 14 is really the hinge of the entire case.
• ¶¶ 18-20 are allegations that are sort of legal in nature. We want to provide a basis for holding all officers responsible, even though they didn't all do the same things.
• We include the damages in the facts section so we don't have to put them in each of the causes of action.
• In cause 1, we've draw the list of justifications for use of deadly force from the case law.
• In cause 2, the facts are pretty thin. That's part of the memo assignment.
• Tort law is state common law, of course. Under Federal law, there's no vicarious liability: that's why we need cause 2. Also, we're going to focus on the federal claims, really for the remainder of the course-- torts will cover the others, and we don't need to worry too much about them.
• Part of the strategy here is to have fall-back causes of action in case we lose one.
• So we ask for "injunctive relief" but we don't specify what that would be. Basically, we're just reserving the right to make a motion for an injunction later on.
• Consider also the facts omitted/spun: were those brass knuckles or jewelry?
• We were hand-served with the memo yesterday. That means we have 21 days to file our responding brief. Of course our memo will just barely be done. (see the local rules for E. District from WI).
• Consider listening to the Twombley oral argument (link to external resources in the online case file).
• Relationship between the facts of the case and the law that comes out of the case. The case is a burrito, and the facts are the messy filling. The holding is the legal rule that wraps up a bunch of facts: the tortilla. The rule always has facts implicit in it (e.g., officer can use deadly force on a suspect threatening someone else with serious bodily harm).
• IMPORTANT: One thing in a legal argument: how much stuff are you putting into the burrito? The more facts that we put into our description of a holding, the easier it will be to distinguish other cases. A more general characterization will favor one side, and a more specific one will favor the other. Characterizing the holding of a case is part of forming an argument.
• Distinguishing: this is a way to get out from under binding authority. A way of showing that we don't have to reach the same result in our case as the binding court above did.
• "Conclusory:" without factual support. Just a conclusion.
• Don't share written work.

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• Send assignments to the court address now, not WiscMail.
• Use "survive a 12(b)(6) motion" is better than "should the court dismiss."
• What we want in QP and BA: identify what the issue is, and what the conclusion is, and why. Be sure that you use enough facts to relate it.
• We will have 2 QsP and 2 BAs
• Synthesis: rule explanation. The composition of parts or elements to form a whole. Consideration of the relevant elements (not all will be).
• Don't make up standards: use the word "reasonable" when it's not present. When synthesizing, be disciplined about it.
• Discuss the facts of a case when the facts are necessary to explain the holding or when you want to compare the facts of your case to the other.