Civil Procedure Outline (No. 3)

Personal Jurisdiction Summary Sheet

Minimum Contacts Test

Intl. Shoe For a state to subject not present defendants to in personam jurisdiction, due process requires that the defendants must have sufficient minimum contacts with the state such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

Factors:

1) Quality and Nature of Contacts

substantial activities?

2) Systematic and Continuous v. Casual & Irregular

quantity--# transactions

timing--

3) Did the cause of action "arise out of" contacts with state?

general v. specific jurisdiction;

if genl--so many contact w/state that state has jurisdiction over any matter

specific--have to show this cause of action was related to minimum contacts in state

4) Purposeful Availment

did initiate action? (Hanson v. Denckla — unilateral activity by 1 party is not enough)

voluntariness--did they deliberately reach out?

expectation of state upholding their interests? (reciprocity)

did they obtain benefits from state?

did spec. design goods for/market them in state? (Asahi)

5) Foreseeability

could they reasonably anticipate being haled into court? (WWVW)

stream of commerce (Asahi,WWVW)--expect jurisdiction where goods go

BUT still have to look at:

1) burden on Def. and 2) interest of state

ALSO--Fairness

Shaffer v. Heitner - qualitative (majority) v. quantitative (dissent) analysis

If take quantitative analysis--->done;

If take qualitative analysis--have to look at fairness

D

Look at relationship between defendant/forum/litigation

F L

Fairness factors to consider: (Burger King)

1) Burden on Def.

2) Burden on Plaintiff if no suit there

3) Forum state's interest in dispute

4) Interstate judicial system's interest in resolution of dispute

5) Shared interests of several states in furthering social policies

Notice (Mullane)

Rule: Have to give notice reasonably calculated to notify D under circumstances"

(w/in limits of practicality)--e.g.'s

mail to last address?

publication?

post notice?

Is notice sufficient?

1) have to show party tried to notify

2) are other methods more likely to work?

3) practical limits (is it reasonable)?

4) every case fact-specific

Authorization--fed. courts have no inherent right to exercise jurisdiction--must have authorization. FRCP 4(e) looks to state long arm statutes for authorization.

If no federal statute authorizing service/If no state long-arm statute no service of process

Subject Matter Jurisdiction Summary Sheet

SMJ not a right--cannot be waived: Rule 12--court can dismiss at any stage if it finds no SMJ: Can't raise SMJ on collateral attack.

Federal courts have limited jurisdiction. Can only hear if there is:

1) Federal question: district courts have orig. jurisd. of all civil actions arising under the Const., laws, or treaties of the U.S. (U.S.C. § 1331)

or

2) Diversity: district courts have original jurisdiction when matter in controversy exceeds $50,000 and is between citizens of different states (U.S.C. § 1332)

Federal Question

to "arise under" the Plaintiff's own complaint must comport with the Well-pleaded complaint rule: the essential part of the complaint must include a federal question, or no federal question jurisdiction (must appear on face of P's complaint).

Policy: why have rule? 1) limit claims--everything could potentially have fed. ques. defense; 2) can determine jurisdiction on 1st paper filed (complaint)--serves efficiency to decide early

not enough that claim will be raised as defense. Mottley

Declaratory Judgment Act (p. 202), still must look at what P's "well-pleaded complaint" would be absent DJA.

artful pleading exception--P's who have case turning only on fed. quest. may not defeat SMJ by failing to mention it in their complaint; court says look at what "real" issue is.

Theories of fed. jurisd.:

•Avco/"field" preemption--if federal law is so preemptive that it completely displaces state law, it must come under fed. jurisd.); rare--usu. not found (this case was Labor Relations Mgmt. Act).

•ingredient approach--if there's an ingredient of federal law, when does that result in fed. ques. jurisdiction?

-Holmes (Amer. Well Work): "A suit arises under the law that creates the cause of action . . ."

-Cardozo (Gully test): 1st--is fed. law an element of the claim? 2nd--is it an essential or substantial or necessary claim?

(in Willy, court said his elements weren't essential--his case still could have proceeded w/o fed. law)

Diversity Jurisdiction must exist for each claim (analyze separately).

1) Citizenship:

Measured at time action is commenced

Complete diversity req.--no P can be citizen of same state as any D (Strawbridge v. Curtiss)

Individuals

Domicile: Presence plus intent to remain indefinitely

domicile, once established, remains until new one established

consider car registration, drivers' license, "permanent address", etc.

"intent" aspect intensely manipulable--hard to judge; look at facts

Representative Parties--under 1332(c)(2) the legal rep. of estate/minor/incompetent is citizen of state of the decedent/minor/incompetent.

Except if any party collusively/improperly joined to invoke jurisdiction of court--no jurisdiction (1359)

Corporations

§1332 Corp is citizen in 1) Principal place of business

& 2) State of incorporation

but: old tests--nerve center/muscle test

Policy: avoid prejudice against outsider corps.

Partnership (unicorp.)--where every partner resides

Purposes of diversity:

a) prevent prejudice (hometowning)

b) protect creditor from state cts. pro debtor bias

c) federal judges are "better"

Criticisms of diversity:

a) clog already overburdened fed. system

b) fed cts. less qualified to apply state law

c) less worry about prejudice to out-of-staters

 2) Amount in Controversy

-Must be at least $50,000 in controversy

-Based on P's good faith claim at time action filed

Aggregating Claims

1 P and 1 D ====> P can aggregate all claims regardless of if claims are related

Policy: As long as just 2 indiv.'s--let them duke out everything now.

1 P and 2D's ===> P can aggregate if claims are related

2P's and 1 D ===> cannot aggregate if claims are regarded as separate and distinct

(e.g.--Mas' claims could not be aggregated because they were pers. inj.--separate and distinct); usu. applies if common claims--ownership of property, etc.--where lawsuit be brought w/o joining that party.

2P's and 2D's ==> if common undivided interest, value of total will be used to determine amount in controv.

Class action ===> each claim of each member has to be $50,000+ (Zahn)

Counterclaims ==> -if P meets amt. D's compulsory counterclaim may be heard regardless of amount

-Permissive counterclaim requires independent jurisdictional basis

1 P has $50,000, 2nd P doesn't, both against same D, 2nd P can sue but cannot join action--must sue in state court

if controversy is non-monetary, determine (1) value of remedy to P; (2) cost to Def. of complying; or (3) value or cost to party invoking jurisdiction.

Supplemental Jurisdiction

Gibbs Test:

1. Both claims must arise from a common nucleus of operative facts such that you would expect them to be tried together.

2. Discretionary analysis: court should consider judicial economy, convenience, and fairness. How close is the action? Is there hegemony of state claims over federal claims.

1) Does court have Jurisdiction over Federal issue?

If yes====> apply Gibbs test to determine state claim should be included.

but if Federal jurisdiction based solely on diversity (1332), then can't join state claim if it requires additional parties that would destroy diversity. [1367(b)]

2) Reasons to not hear State claim:

novel or complex issue of State law

State claim predominates over Federal claim

Federal claims have all been dismissed

Other compelling reasons

If State claim is eventually dismissed, statute of limitations is tolled while claim is pending and for 30 days thereafter

Removal Jurisdiction

§1441-allows defendants to remove to Federal Court if case could have originally been brought there

-must have either federal question or diversity (apply tests for fed. quest. or diversity if necessary)

but if diversity, can't remove if any of D's are citizens of State in which action was brought.

D must remove within 30 days of original complaint, unless amended

if amendment includes federal claim, D can remove w/in 30 days of amendment

all D's must join removal petition

Procedure for Removal (§1446)

(1) D files petition with federal court

(2) D notifies all adverse parties

(3) D files copy of petition with state court

(4) must be within 30 days of initial or amended complaint

P can't appeal if removal granted, D can appeal if removal refused

P can avoid removal by —

1) amending to add non-diverse party or 2) dropping federal claim and just keep State claim

If an action is removed to federal ct. on diversity, P may attempt to bring it back to state ct. by adding a non-diverse party under

§ 1447 (e).

discretion of the ct.— deny joinder or permit joinder and remand to state ct. Venue Summary Sheet

If Jurisdiction, Suit can be brought:

Jurisdiction based on Diversity of Citizenship:

1) district where any defendant resides, if all D's reside in same state

2) district where substantial part of the events occurred or part of property is located

3) district where the defendants are subject to personal jurisdiction at the time the action is commenced (might not apply single D)

Jurisdiction based on Federal Question:

1) district where any defendant resides, if all D's reside in same state

2) district where substantial part of the events occurred or part of property is located

3) district where any defendant may be found, if no other venue available

Also:

Alien may be sued in any district

Corporation resides in any district where subject to personal jurisdiction

If D is agent of US, agency, or the US, the action may be brought in any district in which:

1) an defendant resides

2) substantial part of the events occurred or part of property is located

3) plaintiff resides if no real property is involved in the action

To Change Venue:

§1404 Venue Generally

For convenience of parties, witnesses, and in the interests of justice, a district court may transfer any civil action to any other district where it might have been brought.

§1406 Cure or Waiver of Defects

District Court shall dismiss or transfer to any district; dismiss wrong court cases the district filed venue requires justice which brought.

§1631 Transfer to Cure Want of Jurisdiction

If a court notices a want of jurisdiction, it may transfer the action to any such court in which the action could have been brought originally.

interpreted as allowing transfer to state courts, if in interests of justice.

Transferred case takes the law of the transferred state with it. (Van Dusen v. Barrack)

 The Erie Problem Summary Sheet

Rules for determining whether to apply state or federal law:

1) Does a federal rule cover the issue in question?

If yes--apply it. (Hanna - "The Safe Harbor"--If federal rule is constitutional, it controls (even if using state substantive law).

2) If no applicable federal rule, look at is it outcome determinative? (York)

If there is not an applicable federal rule, ordinarily apply state law, but federal law can be applied if:

(1) it will not result in forum shopping

or (2) it will not result in inequitable administration of the law,

or (3) it will not affect primary conduct that shapes the decisions people making in ordering their lives.

or (4) issue is bound up w/ state substantive rights and duties of parties.

e.g.

What law should federal court apply--state or federal?

State Tort claim in Federal Court based on Diversity Jurisdiction. State rules/regulations limit damages, require screening panels, etc. Must the Federal Court apply these State tort-reform rules and regulations?

Rule: If a Federal Rule covers the issue in question, and if that federal rule is constitutional (ie: comports with the Rules Enabling Act...) then the Federal Rule must be applied. (Safe Harbor concept of Hanna) If there is no applicable Federal Rule, we then must determine if the issue is outcome determinative. If the issue is "outcome determinative," then State law should be applied (York). However, Federal law can be applied if it will not result in forum shopping or inequitable administration of the law, or if it will not affect primary conduct that shapes the decisions people make in ordering their lives.

Issue turns on whether court gives narrow or broad reading to the FRCP.

Courts will not likely give a narrow reading unless there is an older case that gives precedence for a narrow reading, such as Ragan or Armco Steel (stare decisis). However new issues that haven't been looked at before by the court are more likely to get a broad Hanna or Burlington approach.

Broad Interpretation -- Hanna/Ricoh/Burlington RR

If interpret FRCP broadly, to include scope of state issue, then the FRCP/federal law controls.

Narrow Interpretation -- Ragan/Armco Steel

If interpret FRCP narrowly, then it won't conflict with state law, and state law may be used.

e.g.--Ragan - Court found that FRCP 3 (action commenced at time you file in federal court) was narrower than state rule stating action commenced when you served defendant, so state rule applied.

Walker v. Armco Steel reaffirmed Ragan--held that FRCP 3 doesn't apply. Requires state and federal laws to be in direct conflict.

 Pleading Summary Sheet

The Complaint

FRCP Rule 8 requires:

1) short and plain statement of grounds upon which court's jurisdiction depends,

2) short and plain statement of the claim showing that the pleader is entitled to relief

3) demand for judgment for relief pleader seeks

e.g.'s--Campbell v. Laurel - sex. harass. suit dismissed because P failed to give facts which were necessary to establish essential element of her claim (..When a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist); Rannels v. S.E. Nichols, Inc. - broken zipper/malicious prosecution claim upheld because there were facts which tended to show all of substantive elements were met.

Purpose of Rule 8--to give other party notice of what they're being sued for. Policy: benefits of Rule 8--quick & easy-can start lawsuit and then get into discovery; costs--big expenses, since people get in w/ almost no effort and draw others into mess.

Level of Specificity required--genly, don't have to be too specific, but be sure all of the essential elements are included.(diff. to judge)

Limitations on General Pleading Rules---Rule 11 & Rule 9

Rule 11 -requires attorney to make good faith inquiry into the facts and certify that pleading is valid; provides for sanctions for violations--which may include paying other party's expenses.

Rule 9 - Requires some areas to be pled more specifically

9(b)- circumstances constituting fraud shall be stated with particularity.

9(g) - must specifically state items of special damages

Courts have also imposed heightened requirements in other areas--civil RICO cases, sexual harassment, prisoner's claims, etc. Court wants to make it difficult to plead to discourage claims.

Allocating the Elements--who has to plead what?

Genly--if you have burden to plead issue--you have burden to prove it. Are exceptions, though.

3 burdens-

pleading--allocated by law

production--produce evidence (may switch back and forth)

persuasion--persuade fact finder/jury (never shifts--allocated by substantive law)

Factors to consider who has what burden:

1st--look at history/substantive law--how has law treated this type of complaint?

2nd--relative ease of access of proof--who has access to the evidence on the issue?

3rd--fairness

4th--improbability---more improbable occurrence is, more likely we'll require person asserting that it has occurred to have burden to plead, prove, and persuade.

NOT definite test--have to weigh factors; they can point in diff. directions.

Pre-Answer Motions - Rule 12

Time to File--20 days after service; gvmt. gets 60 days; 10 days to file answer if court denies motion.

6(a) governs computation of time--beginning day, what days excluded, etc.

5(d) requires you to file w/in reasonable time after service

Defenses 12(b)

1) lack of jurisdiction over subject matter

2) lack of jurisdiction over the person

3) improper venue

4) insufficiency of process

5) insufficiency of service of process

6) failure to state a claim upon which relief can be granted

7) failure to join a party

12(e) Motion for More Definite Statement--if motion too vague to frame response; hardly ever granted.

12(f)) Motion to Strike--redundant, offensive, immaterial parts--not granted often.

12(g) If you file a motion, you have to include all defenses, or you waive your rights to use as a defense.

--12(b) 2-5--waived if not presented in original as 12(b) motion or answer, if ans. is 1st thing filed;

--12(b) 6&7--can be raised anytime before trial

--12(b) 1 (SMJ)--can always be raised

When 12(b)(6) motion includes supporting documents, it is counted as a motion for summary judgment (Rule 56).

Answer

Rule 10--Respond ¶ by ¶ to the complaint--poss. responses:

admission

denial

not enough info.(treated as denial)

affirmative defense 8(c)

Rule 8(b)--permits general denials (but subject to Rule 11 sanctions)

8(d)--anything not denied is considered admitted

8(c)--affirmative defenses--even if alleged facts are true, I prevail because . . . (the list in 8(c) is not comprehensive--there are others and if you do not plead them promptly they are waived)

test of whether it should be an affirmative defense--whether Def. intends to rest his offense on some act not included in complaint (Layman v. Southwestern Bell Telephone Co.).

Reply

you can only reply to an answer

You have to reply if it's compulsive counterclaim situation--even if when the other side brought it in through a permissive counterclaim. If you make any allegations to that counterclaim, it's compulsive requirement for you to do it.

Don't reply unless you have to.

Amendments - Rule 15

15(a)--Pleading may be amended once as matter of course at any time before response is served (or w/in 20 days if no response required).

Otherwise, may be amended only by leave of court or by written consent of adverse party--shall be freely given.

Test--what does justice require? Look at undue delay, prejudice, bad faith. (largely discretionary measure of judge.)

15(b)--if in trial, issues that were not in pleadings are raised by consent of parties, they'll be treated as if they'd been raised in pleadings.

15(c) Relation Back of Amendments--where a pleading has been amended, if the claim or defenses 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, the amendment relates back to the date of the original pleading."

--if changing the names of the party, amendment allowed if:

-if party to be brought in has received notice and will not be prejudiced, and

-if party knew or should have known that, but for a mistake concerning the identity, the action would have been brought against the party

15(d)--supplemental pleadings may be allowed, if notice is given and it is just

 Discovery Summary Sheet

Party may obtain discovery of any matter not privileged which is relevant to the subject matter. FRCP 26(b)(1)

even if information would not be admissible in trial, it is discoverable if reasonably calculated to lead to discovery of admissible evidence. Rule 26 (b)(1).

Initial Disclosures. — Rule 26 (a)(1) — Provide the other parties with—

1) Name and address of every person w/ discoverable material

2) Copy of all relevant docs

3) Computation of damages

4) Insurance info

Pretrial Disclosures. Rule 26 (a)(2), (3)

Expert Testimony — 26 (a)(2) — expert witnesses and a written report of opinions to be expressed

Rule 26 (a)(3) — name and address of every witness; pertinent parts of deposition; pertinent docs

Interrogatories--Rule 33--can be served only on parties or parties' experts who will testify

Depositions--Rule 27--can be taken on non-parties (witnesses, etc)--only discovery tool that applies to non-parties

advantages: you can respond/interact/get spontaneous info.

--what if you need to depose someone who knows info., but don't know who to depose; Rule 30(b)(6) allows you get around this problem--it applies to corporation/gvmtl. entity, etc. BUT watch for companies who will abuse it--always ask person what other people know, etc. to make sure they gave you right person.

--Subpeona duces tecum --Rule 45-- documents from a non-party, --all deposition is for is to have them hand over documents.

Determining Relevance - if it goes to the element of cause

Broad -- Blank v. Sullivan & Cromwell - very broad reading of relevance (hiring info. from 1970-76)

Narrow -- Steffan v. Cheney - very narrow reading of relevance (gay acts)

Disparity example of how perception of policy (disfavored & favored claims) affects procedural rights.

--so theory you plead your complaint on will have tremendous impact on info. you get.

Determining Privilege

Trial Preparations - Materials (Work-Product Privilege)

26(b)(5) (previously (b)(3)) Documents and other tangible things prepared in anticipation of litigation or for trial by or for another party or for that other party's representatives (incl. attorney, consultant, surety, indemnitor, insurer, or agent) are discoverable only upon a showing of:

1) substantial need and

2) inability to obtain info. elsewhere w/o undue hardship

the court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories

Privilege only shields the communication. You can discover information for any other source--just can't get it in context of privileged information. (Common mistake.)

Qualified privilege—not absolute like other types of privileges; if they can make showing that they need it, they can get it.

Statements

26(b)(3) parties and non-parties can get own statement w/out required showing of need

Other Kinds of Privileges

accountant therapist clergy attorney/client

General trend of law is against privilege,

Physical/Mental Examinations -- Rule 35

if you request copy of examination done at other party's request, you waive your own dr./patient privilege, so those reports are now discoverable, if they relate to treatment of the same condition.

contempt of court not avail. sanction for failure to comply w/ medical exam.

have to show good cause; scope of examination

Procedures

Protective Orders 26(c) — if annoyance embarrassment, oppression, undue burden of expense

Compel Rule 37 —can be done on telephone--

Insurance Info - 26(b)(2)--Discoverable; party must disclose before trial — 26 (a)(1)(D)

Planning for Discovery — 26(f)

Meet together and discuss—

1) Timing, form, and requirements of discovery

2) Relevant subjects of discovery

Signing - 26(g)

--almost same as rule 11; guards against abuse of discovery

 Process Summary Sheet — New Rule 4

Rule 4 (c)(2) — Service may be effected by anyone over 18

At P's request, may be effected by U.S. marshall or ct. appointed person

Rule 4 (d) — Waiver of Service

1) D who waives does not waive any objection to venue or to personal juris.

2) Any person or corp. that receives notice has a duty to avoid unnecessary cost of serving summons. P may notify D of the action and request D to waive service. Notice and request —

A) in writing and addressed to D or an officer of D corp.

B) be dispatched through first-class mail or other reliable means

C) accompanied by copy of complaint and identify the ct. where it was filed

D) inform the D of consequences of compliance and failure to comply

E) give the date when it was sent

F) shall allow at least 30 days to return the waiver, or 60 if D is outside U.S.

G) provide the D with an extra copy of the notice and request

If a D in the U.S. doesn't comply w/ the request for waiver made by P in U.S., ct. shall charge D for the cost of service unless D shows good cause.

3) A D who returns the waiver has 60 days to answer the complaint (90 if outside U.S.)

4) If waiver, no proof of service required and action proceed as if service was served

5) Cost for failure to comply include costs for service, any costs for motion to collect, and reasonable attn'y fee

Rule 4 (e) — Service in U.S. Service made according to —

1) law of the state in which the ct. is located, or

2) law of the state in which service is effected

(e)(2) — give to person or leave at house with someone capable of receiving process

Rule 4 (h) — Service upon Corporations. Deliver to an officer or agent

Rule 4 (k) — Territorial Limits of Service.

1) Service establishes personal jurisdiction over D—

A) who is subject to general jurisdiction in the state where the ct. is located

B) who is joined under 14 or 19 and is served within 100 miles of the ct.

D) when a statute authorizes

2) If exercise of jurisdiction is consistent with the Constitution and laws of the U.S., serving a summons or filing a waiver, with respect to a claim arising from federal law, is enough to establish personal jurisdiction over a D who is not subject to general jurisdiction in any state.

Rule 4 (m) — Time limit for service

Service must be effected within 120 days of filing in ct. or the action will be dismissed. If P can show good cause for failure the ct. may extend the time.

Rule 4 (n) — Seizure of Property

1) If a statute allows, the ct. may assert jurisdiction over property. Notice shall be sent according to Rule 4.

2) If personal juris. cannot be obtained in the district by any manner authorized by the rule, the ct. may assert jurisdiction over any of D's assets in the juris. by seizing them according to state law.

 Pleading Answer

12(b)(6) Motion to dismiss for failure to state a claim for which relief can be granted

Rule 8 requires:

1) short and plain statement of grounds upon which court's jurisdiction depends,

2) short and plain statement of the claim showing that the pleader is entitled to relief,

3) demand for judgment for relief pleader seeks.

Probable issues:

1) lack of factual specificity in Defendant's complaint

2) possible legal insufficiency of substantive complaint and/or prayer for damages

3) burden of pleading (affirmative defenses, etc)

4) amendments

Answer format:

1) Factual Specificity: Rule 8(a) merely requires a "short and plain statement of the claim showing that the pleader is entitled to relief."

D argue: a) must not merely state conclusion, must give some indication of factual background to show entitlement to relief

b) even though P doesn't have to plead facts to support every arcane element of her claim, when she omits facts that if existed would clearly dominate the case, it seems fair to assume they don't exist.

P counter: a) D is already aware of the facts, citation of the specific statute violated is sufficient to put D on notice of the claim

b) further factual development should be left to later stages

c) Code pleading required "facts sufficient to state a cause of action," but FRCP requires merely to "state" a claim and show you are "entitled" to relief.

d) "notice" pleading (FRCP) gets a lawsuit off to a more expeditious beginning, but creates possibilities for abuse of the legal process.

e) "fact" (Code) pleading may avert some abusive suits, but can tie the parties up with unnecessary wrangling over the "elements" of a "cause of action"

2) Legal Insufficiency: Possible Rules

Civil Rights Act § 1983--must prove 1) violation of constitutionally protected right, 2) has to be by a government employee and have to show custom, pattern, or practice (have to show that gvmt. officials knew about it and condoned it or did nothing) (Campbell v. Laurel)

--have to allege person had authority (to fire)

Civil Rights claims must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation (Fisher v. Flynn)

Fraud--P must state with particularity any circumstances constituting fraud (FRCP 9(b))

Malicious Prosecution-- P must show 1) she was found innocent, 2) no probable cause, 3) malice

Compare the requirements of the Statute/Rule to the facts of P's complaint***

determine if the legal sufficiency of the claim is doubtful

By plain terms the statute/rule only applies to . It is/is not clear that D's action is covered by the statute.

—arguments for coverage are:

—arguments against coverage are:

If Fraud claim:

P must state with particularity any circumstances constituting fraud, states of mind (malice, intent, knowledge, etc.) may be pled generally (FRCP 9(b))

Even though states of mind may be pleaded generally, the circumstances must be pleaded specifically--Fraud needs to claim who, what, when, where, how

Policy: for differentiating between fraud and regular complaint

—Fraud--claim for breach of contract--big, punitive damages (not just expectation damages)

—Fraud is easy to plead and hard to prove

immediate reaction after suffering loss is to feel someone has done you in

—Fraud requires stricter pleading--don't want fraud by hindsight

3) Burden of Pleading: Affirmative defenses must be pled specifically FRCP 8(c)

Factors:

1) history/substantive law

2) who has access to the evidence/ease of access of proof

3) fairness

4) probability that certain facts either exist or do not exist

5) value-free analysis??? (no?) - cts. will look at who should win in a close case Amendment Answer

Issue: (A) files 15(a) motion to amend its answer to deny something it previously admitted

(B) files motion to 1) add new claim and 2) add new parties

What motions should be granted and why?

Rule: Motions for 15(a) amendments will be freely granted as justice requires. Motions will be denied only if there is a showing of 1) bad faith delay and 2) prejudice to the opposing party.

If a claim is brought after the running of SoL, Rule 15(c) further limits the availability of amendment.

(A) D's motion to amend and deny

Is there bad faith delay on D's part in seeking the amendment, or will P be unduly burdened or suffer prejudice if the amendment is granted?

Delay: discuss delay--substantial?

even if substantial, is it bad faith?

What makes bad faith?

may have duty to ascertain facts prior to admitting them in answer--breach of this duty might be bad faith

but should D be held to its admission? Maybe not if:

—D relied on otherwise normally reasonably accurate information

—Brought matter up immediately upon realization

Prejudice: Prejudice requires a showing that the opposing party is somehow burdened. Prejudice is narrowly construed, and the fact that a party may have to defend a claim on the merits is not prejudice.

discuss what prejudice(s) would result to P if amendment is granted

— P may then be required to prove something it couldn't prove (D manuf. slide, probably impossible)

— also if SOL has run, amendment may cause P to lose his right to sue anyone

but Are prejudice arguments compelling?

—fact that the case will have to be tried on the true facts (merits) probably not too troubling

having to press claim "on the merits" isn't really prejudice

—even SOL may not be prejudice, since P may be able to substitute another D

and D should not be liable for an injury that it did not in fact cause just because P's SOL has run

Conclusion: Prob. could go either way. If court determines D's delay was unreasonable, or burden on P would be too great, it may refuse the amendment. On balance, I believe the court would/would not grant the amendment.

(B)(1) P's motion to add a claim Must be tested against the standards of 1) bad faith delay and 2) prejudice, and the additional test of relation back from 15(c)

Relation back A Rule 15 motion adding a new claim will "relate back" if it "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading (FRCP 15(c))

Test facts of new claim against claim in original pleading and see if same transaction or occurrence

—eg: Strict liability claim would relate back to negligence

—if claim meets the test, then it WILL relate back if it meets the 15(a) tests: 1) bad faith delay and 2) prejudice

Bad faith delay:

Arguments for bad faith:

—Did P's atty know of possibility of need for added claim?

what justifications for not adding claim originally?

would adequate work have prevented the need for amendment?

Arguments against bad faith:

—Was P personally responsible for failure to add claim?

—Should P be punished for attorney's failure to add all possible claims?

Prejudice: look at burdens placed on D

—D has spent time preparing to litigate original claim. Having to litigate the new claim might prejudice/unduly burden D

BUT if claim "relates back" isn't it similar enough to avoid undue burden

are primary issues still the same?

find facts to suggest amendment will/will not unduly burden D

Conclusion: Case could go both ways. If undue delay/no relation back/ etc, then the court may

(B)(2) P's motion to add parties

According to 15(c)(3), an amendment that changes the party name will relate back if

1) the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading [15(c)(2)]

and 2) within the period provided for service of summons (Rule 4(j)) the new party

a) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense against the merits

and b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Notice:

—Did proposed Defendant know of the action before the SOL ran?

Would D's knowledge indicate he would not be prejudiced in maintaining a defense on the merits?

—Did D know or should have known that he would have been brought but for a mistake?

Undue Delay:

—Was P guilty of undue delay?

P arguably had duty to ascertain proper D's, but was he misled by anyone or anything?

—Did P make motion to amend immediately upon learning new facts?

Prejudice:

Possible prejudices to new D:

a) lose benefit of SoL and be forced to litigate claim on merits?

b) having to litigate on merits is generally not prejudice

 Erie Answer

In vertical choice of law questions, what law should federal court apply--state or federal?

Rule: 1) If a Federal Rule covers the issue in question, and if that federal rule is constitutional (ie: comports with the Rules Enabling Act...) then the Federal Rule must be applied. (Safe Harbor concept of Hanna).

2) If there is no applicable Federal Rule, we then must determine if the issue is outcome determinative. If the issue is "outcome determinative," then State law should be applied (York).

3) But, Federal law can be applied if it will not result in forum shopping or inequitable administration of the law, or if it will not affect primary conduct that shapes the decisions people make in ordering their lives--is the issue is bound up w/ state substantive rights and duties of parties.

Therefore, the whole Issue turns on whether court gives narrow or broad reading to the FRCP.

Courts will not likely give a narrow reading unless there is an older case that gives precedence for a narrow reading, such as Ragan or Armco Steel (stare decisis). However new issues that haven't been looked at before by the court are more likely to get a broad Hanna or Burlington approach.

Application:

1) Does the Federal Rule govern?

The state rule requires

The federal rule requires

Arguments for Fed. rule to apply

—"notice" nature of FRCP pleadings; Rule 8 requires only a short and plain statement showing pleader is entitled to relief.

Arguments for state rule to apply

—rule is outside scope of fed. rule because

—more like "code" pleading--trying to restrict frivolous lawsuits

2) Outcome Determinative?

—is outcome determinative because

—is not outcome determinative because

3) Forum Shopping/Inequitable Admin. of Laws/Substantive Rights?

Forum Shopping -

If fed. rule is applied, will result differ--lead people to choose it?

Inequitable Admin. of Law

—it is discriminatory to a class of persons similarly situated?

Affect substantive state rights?

—right is/is not substantive right

—issue is/is not merely to procedural

 Removal Answer

§ 1441—D's can remove to Federal Court if case could have originally been brought there--case must meet either 1) federal ques. or 2) divers

if based on diversity, cannot remove if any D's are citizens of state in which action was brought

policy: Forum-shopping--D has no legitimate reason (i.e. inconvenience) to seek removal

D must remove within 30 days of original complaint, unless amended

—if amendment includes federal claim, D can remove w/in 30 days of amendment

—all D's must join removal petition

Under § 1447, P can move for remand to state court w/in 30 days

P can't appeal if remand refused; D can appeal if removal refused

P can avoid removal by

1) amending to add non-diverse party or

2) dropping federal claim and just keep State claim

If an action is already removed to federal ct. on diversity, P may attempt to bring it back to state ct. by adding a non-diverse party under § 1447 (e).

discretion of the ct.— deny joinder or permit joinder and remand to state ct.

Federal Question?

District courts have orig. jurisd. of all civil actions arising under the Const., laws, or treaties of the U.S. (U.S.C. § 1331)

—to "arise under" the Plaintiff's own complaint must comport with the Well-pleaded complaint rule: the essential part of the complaint must include a federal question, or no federal question jurisdiction (must appear on face of P's complaint).

Policy: why have rule? 1) limit claims--everything could potentially have fed. ques. defense; 2) can determine jurisdiction on 1st paper filed (complaint)--serves efficiency to decide early

not enough that claim will be raised as defense. Mottley

Declaratory Judgment Act, still must look at what P's "well-pleaded complaint" would be absent DJA.

artful pleading exception--P's who have case turning only on fed. quest. may not defeat SMJ by failing to mention it in their complaint; court says look at what "real" issue is.

Theories of fed. jurisd.:

•Avco/"field" preemption--if federal law is so preemptive that it completely displaces state law, it must come under fed. jurisd.); rare--usu. not found (this case was Labor Relations Mgmt. Act).

•ingredient approach--if there's an ingredient of federal law, when does that result in fed. ques. jurisdiction?

—Holmes (Amer. Well Work): "A suit arises under the law that creates the cause of action . . ."

—Cardozo (Gully test): 1st--is fed. law an element of the claim? 2nd--is it an essential or substantial or necessary claim? (in Willy, court said his elements weren't essential--his case still could have proceeded w/o fed. law)

Diversity?

District courts have original jur. when matter in controversy exceeds $50,000 and is between citizens of diff. states (§ 1332)

Jurisdiction must exist for each claim (analyze separately).

1) Citizenship:

—Measured at time action is commenced

—Complete diversity req.--no P can be citizen of same state as any D (Strawbridge v. Curtiss)

Individuals

Domicile: Presence plus intent to remain indefinitely

—domicile, once established, remains until new one established

—consider car registration, drivers' license, "permanent address", etc.

—"intent" aspect intensely manipulable--hard to judge; look at facts

Representative Parties--under 1332(c)(2) the legal rep. of estate/minor/incompetent is citizen of state of the decedent/minor/incompetent.

—Except if any party collusively/improperly joined to invoke jurisdiction of court--no jurisdiction (1359)

Corporations

§1332 Corp is citizen in 1) Principal place of business & 2) State of incorporation

but: old tests--nerve center/muscle test

Policy: avoid prejudice against outsider corps.

Partnership (unicorp.)--where every partner resides

Purposes of diversity:

a) prevent prejudice (hometowning)

b) protect creditor from state cts. pro debtor bias

c) federal judges are "better"

Criticisms of diversity:

a) clog already overburdened fed. system

b) fed cts. less qualified to apply state law

c) less worry about prejudice to out-of-stater Supplemental Jurisdiction (Gibbs/1367) Answer

Standing alone, the Federal court would not have jurisdiction over P's claim.

The claim is a state claim which does not "arise under ..." so there is no Federal Question Jurisdiction under §1331

There is no Diversity, because .

Still, P's att'y should argue that the federal court does have jurisdiction over this claim pursuant to §1367.

Supplemental Jurisdiction

A District court which has original jurisdiction will also have supplemental jurisdiction over all other claims that are so related that they form part of the same case or controversy under Article III of the Constitution--including claims that involve the joinder or intervention of additional parties (§ 1367(a)) --unless it would destroy diversity in a §1332 diversity case § 1367(b)

Power:

1) Does court have Jurisdiction over Federal issue?

If yes====> apply Gibbs test to determine state claim should be included.

Gibbs Test:

2) Both claims must arise from a common nucleus of operative facts such that you would expect them to be tried together.

Discretion:

Even if the court has power, it still may choose whether or not to hear the case

1) Discretionary analysis: court should consider judicial economy, convenience, and fairness. How close is the action? Is there hegemony of state claims over federal claims.

Policy: Supp. Jur is Good, multiplicity of lawsuits, duplication of discovery, witnesses

2) Reasons to not hear State claim: § 1367(c)

—novel or complex issue of State law

—State claim predominates over Federal claim

—Federal claims have all been dismissed

—Other compelling reasons

If State claim is eventually dismissed, statute of limitations is tolled while claim is pending and for 30 days thereafter

 Sample Pleading Question - 1

After reading in "Money Magazine" that the Provo-Orem area was the "best place to live in the United States," Patsy Salazar decided to leave East Los Angeles and move to Utah. Patsy, a hispanic American, is a single mother with two small children. Upon arrival in Orem, Patsy immediately obtained employment and began searching for day-care services. A woman in Patsy's apartment building, Debra Dumbwit, tended children for one other tenant. Patsy asked Debra to tend her two children, but Debra politely declined. Two hour later, Tess Trueheart, who also lives in the apartment building, offered to tend Patsy's children and Patsy accepted the offer. Several days later, Tess told patsy that Debra had refused because Debra did not want her kids associating with "spicks".

Applicable Legal Rules:

(1) Section 41 of the Orem City Code provides that "all residents of Orem" are entitled to "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

(2) The Utah Supreme Court has repeatedly stated since 1970 that Utah follows the legal principles established by the RS 2d Torts. Section 46 of the Restatement provides that "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." An earlier Utah case that has never been reversed, however, provides that damages for emotional distress are not recoverable "unless the plaintiff was physically harmed." Rule v. Reason

Question:

Patsy seeks legal council who drafts the following complaint:

1. This Court has jurisdiction pursuant to Utah Code Ann. 78-3-4

2. Debra Dumbwit has violated Orem City Code Section 51.

3. Wherefore, Patsy Salazar prays for $10,000 in damages, plus costs and attorney's fees.

Debra, upon receipt of the complaint, files a motion under Rules 12(b)(6) seeking to dismiss the complaint for failure to state a claim for which relief can be granted.

What arguments should Debra make in support of her motion? How should Patsy respond? (Ignore any issues going to jurisdiction)

Answer: Two primary difficulties:

(1) the lack of any factual specificity in Patsy's complaint, and

(2) the possible legal insufficiency of both her substantive complaint and her prayer for damages.

(1) Factual Specificity: Rule 8(a) merely requires a "short and plain statement of the claim showing that the pleader is entitled to relief." While Rule 8(a) doesn't require much, this complaint is almost certainly deficient: it states the conclusion that Section 51 has been violated, but does not show that Patsy is entitled to relief. Some indication of the factual background of the case, however brief, should have been given in the complaint.

In response, Patsy might argue that Debra is well aware of the facts surrounding the case and citation of the specific statute Debra violated is sufficient to put her on "notice" of the claim against her. Patsy might argue that further factual development should be left to later stages in the case.

(2) Legal Sufficiency: There are two primary difficulties with the complaint. First, it is not entirely clear that §51 covers the conduct implicated by the facts. Second, Patsy's legal entitlement to her claimed damages is quite uncertain.

1) Section 51: By its plain terms, the statute only applies to "business establishments." It is not clear that Debra's babysitting activities are covered by the statute. Various arguments could be made for coverage (Debra's activities are not "commerce" in strict sense, she provides a "service" within the strict meaning of the statute, the purpose of §51 is to eliminate private discriminatory conduct, etc.) and against coverage (Debra is not a "commercial" provider of babysitting services, services are provided on a private and invited basis in a personal residence, etc.). The most important point is that the legal sufficiency of the complaint is doubtful.

2) Damages: Patsy has sought $10,000 in damages without specifying the basis for the claim. One could argue that the claim is factually flimsy because Patsy obtained alternative babysitting services two hours after being turned down by Debra. The more important point, however, is the conflict between the RS (which would seem to sustain the legal sufficiency of the damages claim) and Rule v. Reason (which would not). Arguments in favor of the RS position would emphasize policy and "modern thinking," while arguments in favor of Rule v. Reason would emphasize the role of precedent and stare decisis. Again as with §51 the legal sufficiency of the claim is doubtful.

Other Relevant Points:

1) Compare and contrast Code pleading (facts sufficient to state a cause of action) vs. FR pleading (merely state a "claim" and show you are "entitled" to relief.

2) The facts of the question make it possible to discuss the advantages and disadvantages of "notice" pleading with "fact" pleading. (ie. "notice" pleading gets a lawsuit off to a more expeditious beginning, but creates possibilities for abuse of legal process; "fact" pleading may avert some abusive suits, but can tie the parties up with unnecessary wrangling over the "elements" of a "cause of action").

3) The 12(b)(6) objection to Section 51, if successful, may avert the entire lawsuit. The objection to the damages issue, however, will probably not avert trial but merely result in Patsy seeking an alternative form of relief.

4) Intangible issue: limits of judicial redress. Damages is almost certainly a poor proxy for whatever wrong has been done to Patsy. But, whole money may be a "poor" remedy, it seems to be the only remedy that the law can provide on the present facts -- it is quite unlikely that Patsy could get (or would want) an injunction forcing Debra to tend her children. Sample Pleading Question - 2

Penny Purdine is a secretary at the Texas Department of Community Strife. her boss (and director of TCDS), Archibald Leer, has repeatedly requested Purdine to accompany him to a bar after work "for drinks." Purdine has consistently refused because of a "feeling" that Leer "might try something funny."

On May 1, 1991, TDCS announced the creation of the new position of Associate Director. The Associate Director was to be hired by, and would work directly under, Leer. Purdine applied for the job, but was not hired. Instead, Manny Male received the position. Leer wrote Purdine a letter on June 1, 1991, in which he congratulated Purdine for her "superior work in the agency," expressed his hope that she "would continue to do a fine job as in the past," but stated that Male was hired "because of his extensive past administrative experience."

Purdine contacts a lawyer who files a Title VII sex discrimination suit against TDCS and Leer in Federal District Court. The complaint, in its entirety, provides as follows:

1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

2. The defendants, Texas Dept. of Comm. Strife and Archibald Leer, have violated Title VII of the Civil Rights Act of 1964.

3. Plaintiff Penny Purdine is entitled to an injunction requiring TDCS to hire her as Associate Director, an aware of back pay and attorneys' fees, and all other appropriate relief.

A. Is Purdine's complaint sufficient to withstand a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6)? Can it withstand a motion for a more definite statement under Rule 12(e), FRCP?

B. In response to Purdine's complaint, counsel for TDCS and Leer file a complaint in which they "deny each and every allegation of the complaint." TDCS and Leer, however, do not set forth any affirmative defense pursuant to Rule 9(c), FRCP. Purdine thereupon files a motion for judgment on the pleadings under Rule 12(c), FRCP, asserting that she is entitled to judgment as a matter of law. What arguments can be made in support of and in opposition to Purdine's motion? How should the court rule?

Answer - 2

The question probes the respective pleading burdens of a plaintiff and defendant in a Title VII sex discrimination suit. See Texas Dept. of Comm. Affairs v. Burdine in the casebook.

A. Purdine's Complaint: The Rule 12(b)(6) and 12(e) motions examine, respectively, the substantive legal sufficiency of the complaint and its technical compliance with Rule 8(a).

Legal sufficiency: On its fact, the complaint appears to be legally insufficient. Burdine establishes the elements of a prima facie Title VII case. And, while the elements of a prima facie case are not "burdensome," Purdine does not appear to have alleged a prima facie case here. According to Burdine, a Title VII claimant must allege:

1. That she applied for an available position;

2. For which she was qualified;

3. But was rejected under circumstances which give rise to an inference of unlawful discrimination.

The above elements are not set out in Purdine's complaint. However, despite the formal lack of these elements, the court should not dismiss the complaint. As Judge Posner points out in Amer. Nurses Assn. v. Illinois (p. 101), a complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove nos et of facts in support of his claim which would entitle him to relief." It appears the defects in the complaint here can be rectified by complying with Rule 8(a).

Technical compliance with Rule 8: Rule 8(a) requires (1) a jurisdictional allegation, (2) a demand for judgment setting forth the relief the pleader seeks, and (3) a "short and plain statement of the claim showing that the pleader is entitled to relief.' The complaint here adequately deals with the jurisdictional allegation and the prayer for relief, but probably does not set forth an adequate basis for Purdine's claim that she "is entitled to relief."

The facts set out in the question give enough detail to draft a more definite complaint that will comply with the prima facie case requirements of Burdine. Purdine could easily allege that a position was open, that she was qualified (because of Leer's letter commending her for her excellent work in the past), and that she was not hired in circumstances raising an inference of discrimination. (Leer had requested her to go to the ar, Purdine refused, and this provides at least a "basis" for suggesting that the failure to hire was sexually motivated retaliation.)

B. TDCS's and Leer's Answer: The Rule 12(c) motion tests the legal sufficiency of TDCS's and Leer's answer. Rule 8(c) requires the answer to set forth all affirmative defenses. Their answer contains NO affirmative defenses. However, unless TDCS and Leer "articulate some legitimate, nondiscriminatory reason" for Purdine's rejection, Purdine is entitled to judgment as a matter of law. Burdine at 77. This, of course, is the basis for Purdine's Rule 12(c) motion: as the pleadings now stand, she is entitled to judgment as a matter of law. (If, in response to the concerns addressed in subpart A, Purdine amends her complaint to comply with Rule 8(a), she will have stated a prima facie case. This raises a presumption of discrimination that, unless rebutted by TDCS and Leer, supports a judgment in her favor. TDCS and Leer have not pleaded a rebuttal. Therefore, Purdine is entitled to judgment as a matter of law).

Purdine, however, probably will NOT prevail on her motion. Rule 15(a) provides that pleadings (including answers) may be freely amended "when justice so requires." Justice would seem to require permitting TDCS and Leer to amend their answer to assert their affirmative defense. They have a basis for claiming that their personnel action was justified: according to Leer's letter Male had extensive administrative experience. The court should permit the amendment sot hat the propriety of Purdine's claim of discrimination can be decide on the merits by a judge or jury.

(Note: This last point, involving 15(a), will escape all students . . . .The disadvantages of permitting cases to be decided on the basis of the pleadings, however, has been addressed in class and students may well discuss this point in general terms of "fairness". Sample Amendment Question - 3

AquaWonder manufactures residential swimming pool water slides. On May 1, 1985, Peter Poole (a resident of the State of Bliss) injured his back after sliding down what he thought was an AquaWonder slide. He brought an action in Bliss state court against AquaWonder, alleging negligent manufacture of the slide. Poole's attorney, Dewey Cheatum, considered adding a count alleging that AquaWonder was strictly liable for Poole's injury because it had manufactured and distributed a defective consumer product. (Strict liability, unlike negligence theory, does not require a showing of fault; the plaintiff need only demonstrate that a product was defective.) Cheatum did not include a strict liability count based on his "gut feeling" that the Bliss Supreme Court "would not buy" strict liability. Had Cheatum undertaken even "would not buy" strict liability. Had Cheatum undertaken even minor research, however, he would have found that the Bliss Supreme Court had adopted strict liability in Progress v. The Dark Ages.

The action against AquaWonder was filed July 1, 1985. In its answer, AquaWonder admitted that it had manufactured the slide. But, despite the admission, the slide had not been built by AquaWonder. It was, in fact, a product of the AquaScum corporation. Manny Sleaze, president of Aquascum, had sold the slide to Poole by orally representing to Poole that the slide was an AquaWonder product. Manny clipped a local newspaper article reporting the Poole lawsuit and had his secretary place it in Aquascum files, telling her that Aquascum had "pulled a fast one on AquaWonder."

The case did not move rapidly. The matter was finally set for trial on July 1, 1991--three months after the statute of limitations had run. On June 1, 1991, the President of AquaWonder came to Poole's home to inspect the slide. After glancing at the slide, he shouted in shock, "Why, we didn't manufacture this slide! It was built by that disreputable Aquascum!"

Thereafter, the following motions were filed:

(A) AquaWonder filed a motion under Rule 15(a) to amend its answer to deny that it had built the slide.

(B) Poole filed a motion to (1) add a count alleging strict consumer products liability, and (2) add AquaScum and Manny Sleaze as defendants.

Poole, AquaScum, and Sleaze oppose Aquawonder's motion. AquaWonder, AquaScum, and Sleaze oppose Poole's motion.

Which motions (if any) should be granted and why?

Answer/Issue List

Question #3 explores Rule 15(a) in a "relation back" context. Generally, amendments under 15(a) are granted if they will serve the interests of "justice." "Justice" is broadly construed. Motions will be denied ONLY if there is a showing of (1) bad faith delay and (2) prejudice to the opposing party. Unlike "justice," however, "prejudice" is narrowly construed. The fact that a party may have to defend a claim on the merits is not prejudice. Prejudice requires a showing that the opposing party is somehow "burdened." See Matarazzo case in the casebook. If a claim or party is sought to be added after the running of a statute of limitations, Rule 15(c) is applicable and further limits the availability of amendment.

A. Aquawonder's motion: Is there bad faith delay in seeking this amendment, or will Poole be unduly "burdened" or suffer "prejudice" if the amendment is granted?

--Delay: There has undoubtedly been substantial delay. Whether it is bad faith delay or not, however, is unclear. AquaWonder waited six years to investigate whether it had actually manufactured the slide. Does the company have some duty to ascertain the facts prior to admitting facts in its answer? It may, and the company's belated discovery one month prior to trial that it had not manufactured the slide could indeed be "bad faith."

But, on the other hand, one could argue that AquaWonder should not be held to its admission. There was delay, but the first moment that the company knew it had not manufactured the slide, it brought the matter to the attention of the court.

--Prejudice: The most obvious prejudice seems to be that Poole would not have to prove (which he probably could not do) that AquaWonder did manufacture the slide. In addition, the statute of limitations has run, and if the amendment is permitted, Poole may lose is right to sue anyone.

On the other hand, however, it appears that neither of the prejudice arguments are terribly compelling. The fact that the case will be decided on the true facts (that is, on the "merits") rather than on formal pleadings is not really troublesome. If the amendment is granted, Poole is not really "prejudiced" in a legally cognizable way; he simply has to press his claim "on the merits." Moreover, the fact that the statute of limitations has run may not constitute "prejudice" because, as noted below, it MAY be possible to substitute another defendant. And, in any event, Aquawonder should not be held liable for an injury that it did not in fact cause just because the statute of limitations has run against the plaintiff.

--Conclusion: This case could go either way. IF the trial court concludes that AquaWonder did unreasonably delay in determining that it did not manufacture the slide, the court may refuse to permit the amendment. On balance, however, I believe that the court would most likely permit the amendment.

B. Poole's Motions: Poole's motions are again tested against the standards of (1) bad faith delay and (2) prejudice. However, in addition to the general rules of 15(a), we add the requirements of 15(c) (relation back). This is so because Poole seeks to add a new claim and a new party AFTER the running of the statute of limitations.

Motion adding a new claim: A Rule 15 motion adding a new claim will "relate back" IF it "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Rule 15(c). The new claim here, strict product liability, meets that test. Therefore, the claim WILL relate back if it also meets the standards of 15(a) (i.e., if Poole is not guilty of bad faith delay and the amendment will not prejudice existing parties.)

--Bad faith delay: The argument that there HAS been bad faith delay would focus upon the fact that Cheatum was aware of the possibility of adding a strict liability claim, but failed to do so based upon an unsupported "hunch." Had he done adequate research, moreover, he would have found that the claim was indeed valid. In these circumstances, a strong argument can be made that the claim is "undue."

Whether the delay is in "bad faith," however, is a little less clear. Poole himself is not responsible for the failure of Cheatum to add the claim, and it is questionable whether a client should be punished for his attorney's failure to include all possible claims.

--Prejudice: The primary prejudice here arises from the fact that AquaWonder has spent six years litigating a negligence case and now is asked to litigate a strict liability case. This will undoubtedly impose substantial additional burdens on the defendant.

IN opposition to the above arguments, Poole can point out that the addition of the new theory does not fundamentally change the case; the primary issue still is whether the manufacturer should be liable for harm done to the consumer. Moreover, the new theory merely requires AquaWonder (and, if the motion to add a new party is granted, Manny and AquaScum) to adhere to established notions of public policy (the State of Bliss has imposed strict liability on manufacturers of defective products and AquaWonder should not escape that legal burden).

--Conclusion: This case seems to be arguable both ways. If the court concluded that Poole had indeed been guilty of undue delay in presenting a theory he should have included at the time he filed his complaint, this last-minute amendment may not be allowed. But, on balance, I again think that the motion would probably be granted and Poole would be permitted to amend.

Motion to add AquaScum and Manny Sleaze: This motion will relate back IF it meets the general requirements of 15(a) AND (a) the amended pleading arose out of the transactio involved in the original complaint and (b) "within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but or a mistake concerning the identity of the proper party, the action would have been brought against the party." Rule 15(c). The Rule 15(c) requirements seem to be met because Manny read and clipped a newspaper article about the suit prior to the running of the statute of limitations AND evidencing his belief that he and AquaScum were the proper parties by commenting that the had "put one over" on AquaWonder. The Rule 15(a) requirement seems to be plainly met.

--Undue delay: Poole is almost certainly NOT guilty of any undue delay in bringing this motion to amend. Although one could argue that Poole had a duty to ascertain who actually manufactured hi slide, he had been affirmatively misled on that point by Manny (who told him that he slide was an AquaWonder product). Moreover, he brought the motion to amend at the first possible moment he could after learning that AquaWonder was not the proper defendant.

--Prejudice: The only prejudice here is that Manny and AquaScum will lose the benefit of the statute of limitations and will be forced to litigate Poole's claim on its merits. Litigation of a claim on the merits is generally not considered "prejudice." This result is particularly appropriate here, since Manny was responsible for Poole's filing against the wrong parties in the first place.