Civil Procedure Class Notes

Civil Procedures Course Outline – I. Introduction to the course and overview of the value of procedure A. Introduction – 1. Intro to course – nothing 2. Intro to American Courts system – nothing 3. Art III of US Constitution – Section 1 Set up Supreme Court & Judge terms and allow for other courts a)Judicial power in US vested in Supreme Court b)Congress can ordain inferior courts c)Judges in any courts will hold office for life, assuming good behavior d)Judge pay can’t be decreased Section 2(1) - Judicial power extend to 9 types of controversies a)Matters in law or equity re: US Constitution, laws of USA and treaties made under such laws’ authority b)All cases affecting ambassadors, consuls & other public figures c)Cases affecting admiralty and maritime jurisdiction d)Controversies to which the USA is a party e)between two or more states f)between a state and citizens of another state g)between citizens of two different states h)between citizens of a same state claiming land under grants in different states i)between a state or citizens thereof and foreign entities Section 2(2) - Supreme Court jurisdiction on points above a)Regarding points 2, 5, 6 and 9 -Supreme Court has original jurisdiction b)Points 1, 3, 4, 7 and 8 -Supreme Court has appellate jurisdiction Section 2(3) - Criminal trial rules set forth a)Criminal trials are by jury (except impeachment). b)Such trials held in state where allegedly committed c)If not committed in a state, then Congress can decide Section 3(1) - Treason a)Treason defined as aiding and giving comfort to the enemy, or levying war against the USA. b)Can’t be convicted of treason unless two people witness same act or c)Accused confesses in Open Court. Section 3(2) - Punishment for Treason a)Congress can declare punishment for treason b)No attainder (punishment without trial) is allowed B. Goldberg v. Kelly – 1. The case – Facts – (Class action) NYC residents receiving welfare benefits under federally assisted AFDC and NYS general Home Relief program felt that the NYS and NYC offices administering these programs terminated, or were about to terminate, their aid without prior notice or a chance for a hearing, denying them due process of law guaranteed under the 14th amendment to the US Constitution. After the suits were brought, the State and City adopted measures to provide notice and post termination hearing. The P felt such measures were inadequate with regard to due process as the new procedures did not (a) allow for personal appearance before termination, (b) allow for oral presentation of evidence and (c) allow for cross examination of adversarial witnesses. Procedural History: The suit was first brought before the District Court for the Southern District of New York against the City and State of New York. The P/Ap’ee claimed they were denied the procedural due process, thereby violating the Due Process Clause of the 14th amendment. D contended that the new procedures sufficed for due process considerations. These procedures notified the welfare recipient via mail. Such notification also allowed the recipient to contest via mail. Additionally, recipient could ask for post-termination oral hearing. D also would allow for a

judicial review if the welfare recipient did not prevail at the post termination hearing. Finally, D also contended that pre-termination would not be cost beneficial. The District Court found for the P/Ap’ee, holding that only a pretermination hearing would satisfy the constitutional requirement under 14th amendment. D.C. also held that the cost benefit argument does not override the concerns of the individuals. The Commissioner of Social Services for NYC (Goldberg) appealed (State did not appeal). Issue – Was the District Court correct in holding that the City of New York needed to hold pre-termination evidentiary hearings with welfare recipients in order to satisfy the citizens’ 14th amendment rights to due process? Holding – Ct considers welfare $ = property to fall under 14th Amend. Must balance the nature of gvt interest and private interest, and here private interest of pp deserving welfare wrongfully terminated and reduced to starvation far (brutal need) outweighs
in gvt costs of providing preterm hearing as opposed to post term hearing. The fundamental requisite of due process is the opportunity to be heard (meaningfully). Written submissions are unfair to those w/ lacking education, credibility of witnesses never tested... Must have timely and informative notice. Must have pretermination hearing but it does not have to be a judicial proceeding-just has to have the opportunity to be heard in a meaningful manner (here, orally w/ counsel) w/ opportunity to confront and cross-examine State's witnesses. Must also have the ability to appeal. Ct worried about false-; but decision will
false+. (Ct weighs #1 + #3 of Matthews) Rule – resulting minimum due process requirements: 1)Some kind of NOTICE -statement of reasons and support for action being taken (w/o this responding would be meaningless) -appeal rights -TIMELY 2)Right to be HEARD -timely -ability to respond in a meaningful way (depending on sit, may be written or oral) -take account for biases of witnesses (credibility issue -rt to cross-examine) 3)Decision -impartial decision maker -inform in meaningful manner (reasons for decision so can appeal meaningfully) 4)Responding/Appeal -judicial review of some kind (must at least be potential to go to ct at end of line) Rationale – D argued two points. 1) The pre-termination written correspondence followed up by the option of a post-termination face-to-face meeting met the due process requirements. 2) The cost to the government, that is, to society, would outweigh the benefits provided to the recipients. To the first point, the S.C. held that pre-termination hearings are required in order to ensure that such citizens have the opportunity to continue to subsist on a daily basis until such time as they have exhausted all avenues afforded them under the 14th amendment. Due process includes the ability to cross-examine adverse witnesses (as ordained in the 6th amendment) (Greene v. McElroy). Given the fundamental needs that welfare provides, such opportunity should be provided before termination of benefits, not after. Specifically, a written notice does not allow the recipient the opportunity to discuss the issues, to determine what, exactly, the issues are. Moreover, the written process does not allow the recipient to question the City and ask what the nuances of the issues were that gave rise to the preliminary decision to terminate the rights. Finally, as a preliminary decision to terminate is made by a case worker, no one is available to be an advocate for the recipient at the time the decision is made. To the second point, the S.C. noted that such approach does not hinder the nation as a whole (as opposed to what effect it has on the individuals in question), but rather helps the nation as the continued benefits until due process is exhausted better ensures that those individuals who meet the requirements can continue receiving welfare, which program guards against the possibility that those less successful will give up on society and seek another means of surviving. The S.C. further did not agree with the D’s claim that such points, though salient, are overridden by the fact that the great majority of terminations are not

contested, that, therefore, this pre-termination process, would be costly to the government, and yield little change to the recipients at the end of that process. D’s contention in this regard is overridden by the D.C.’s points on societal advantage of the welfare program. The Supreme Court also noted that the need to determine what procedures are required to meet the due process requirements are a function of the governmental function and individual needs. The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer grievous loss” (Joint AntiFascist Refugee Committee v. McGrath -p27r). Cafeteria & Restaurant Workers Union v. McElroy echoes this sentiment. Dissent (Black) – 1) The cost to the government, to the people, would be onerous, would outweigh the benefits derived therefrom. 2) Some people who are on the rolls fraudulently would continue to receive such benefits while due process worked its way through the system. 3) He doesn’t think that the Constitution is the place to address such issues, but rather the House. He feels that carrying out new experiments in welfare s/n/b frozen into the constitutional structure, but rather left to the legislature. 4) Is afraid that this decision sets a dubious precedent, that the Supreme Court could begin to make regulatory policy decisions under the auspices of of DPC. He says that the judges sitting at any particular time could simply decide what s/b the law, citing the DPC. 5) In this case, the P is getting “minimum” due process. He fears that, by hypothesis, future Ps could ask for full judicial review on all cases, citing DP protection, and could therefore tie up the Court’s and various regulatory bodies’ time while people who deserve and require welfare don’t receive it as the administrators are too busy fighting term cases. 6) He also made an argument that welfare receipts for individuals who fraudulently accept such benefits do not deserve the protection accorded to property rights owners in the 14th amendment. 2. Michelman article – Value of Procedure: - Two ways to evaluate procedural system: a. Outcome oriented (if outcome good, then procedure good- Lawr Grandma) Does it could accuracy of results? Come up with hypo where outcome is not the issue. Housing question - should the lease person have a right to a hearing? Foster child question - find cases where outcome is not at stake. Then find what Michelman helps us do in terms of determining what procedures are required. b. Non outcome oriented ways in which to measure a procedural system: Four values of Michelman: a. Generally accepted reasons for litigating. He takes those reasons and thinks of them in terms of values (end, interests, purposes) that are furthered by allowing one to litigate. (His article in response to Sup Ct. decision to not allow certain people to be able to litigate (as filing fees would not allow them to do so). c. The four values: Dignity Values: concern for humiliation/loss of self-respect if denied opportunity to litigate; most clearly offended when person formally charged w/ wrongdoing and prevented from responding or forced to respond w/o help. Participation Values: As derived for 1st Amend "access" litigation is a way to participate in society Deterrence Values: means of effecting or modifying behavior. Effectuation Values: OUTCOME DRIVENRights only exist if there's a way to enforce them; litigation is that way. Hypo: Litigation deciding whether child in foster care should be returned to birth parents. Foster parents want to speak, but they have given all info to social services and their testimony will in no way change the outcome of the case, they will contribute nothing to the accuracy of the result. Should they be allowed to testify? 1)Dignity Values: foster parents might be humiliated if can't testify 2)Participation Values: Foster parent have an emotional interest, not an outcome

C.

effecting one 3)Effectuation values: OUTCOME driven; so since foster parents have nothing to add to the outcome, they can't use this to get judge to let them be heard. *So, on one side ct should let them speak to help them feel better. But on the other side their testimony wastes time and $ to no avail (no effect on outcome) and they should release their tension in another way (punching bag), the ct is not an outlet for their frustration. 3. Leff article – Litigation sim to game b/c of rules: relatively rigid, formal structure. But diff b/c it has impact beyond game itself. Says legal process is gamelike (formalistic structure, rules, rules that pre-exist the game - don’t change them as you go along) Not gamelike in that it has implications outside the boundries of the process (game). More profoundly, games are a means by which to make something conclusive, deterministic something that is not so in real life. (in games, there are always winners and losers, unlike life). Litigation plays that role in society. 4. Adversary system (HTF 32-40) – Articles: Hazard: The Adversary System and Hand, The Deficiencies of Trials to Reach the Heart of the Matter – nothing of note. 5. Goldberg complaint – nothing of note. Mathews v. Eldridge – 1. The case – Facts – Π filed case in fed ct under §1331 of a violation of 5th Amend due process rts (b/c disability benefits are fed, whereas welfare benefits of Goldberg are state). Not a class action, but applies to everyone because it went to Sup Ct. Issue – Does the Due Process Clause of the 5th Amendment require pre-termination evidentiary hearings to Social Security disability benefit payment recipients? Holding – In light of the mix of strong evidence and opportunities provided to beneficiaries to present their cases in the current process, low risk of erroneous deprivation of benefits and potentially significant administrative and cost burdens to the government and taxpayers for such hearings, the current procedures are sufficient in with respect to the beneficiaries’ 5th Amendment rights. Due process does not require a preterm evidentiary hearing here. Due process requires only that the procedures be tailored, in the light of the decision to be made, to the capacities and the circumstances of those who are to be heard to ensure that they are given a MEANINGFUL opportunity (outcome effecting!) to present their case! Procedures already existing satisfy due process here. Rule – TEST: 1)Private Interest -to get preterm, you must be either in as much need as a welfare recipient or in more need than a disability recipient 2)Risk of Error + Value of Additional Procedures to Reduce Error -accuracy of the process -subjective v. objective evidence makes a difference 3)Gvt Interest -avoiding paying unrecoverable benefits to judgment proop pp who were ineligible -minimize administrative costs (cost of
# of hearings) Rationale – Three pronged formula addressed in the opinion. The decision turns on the mix of private interest, risk of erroneous deprivation and public interest affected by the current and prospective procedures. Private interest - These benefits are not deemed as life sustaining as Goldberg. There are other means by which SS beneficiaries can subsist, including work and other governmental assistance programs. Also, the pretermination written evidence is much less subjective than in the Goldberg case. To wit, much of the weight in the preterm process is given to medical doctors’ reports. Such reports are more likely to reflect the accurate state of affairs as opposed to the Goldberg case. Moreover, a questionaire and subsequent written dialogue pretermination allows the SS beneficiary to frame her/his response to the State Agency.

Risk of erroneous deprivation - In this case, it appears that approximately 3 to 12% of the cases would be reversed, including 9% in the first two months. That yields only 3% that would be outstanding for a material amount of time, not a large enough percentage to creat probative evidence supporting a change in the process. Public interest - The potential costs to the public appear to be in excess of the benefits that would ascribe to the beneficiaries harmed by a holding in favor of the D. Given the strength and fairness of the pretermination process as well as the opportunity provided for a post term evidentiary hearing, the incremental burden to the public is not warranted. Lawrence – #1Goldberg: brutal need: Matthews: less need. Powell says that on a continuum, Goldberg is all alone in the brutal need thus it is a case where there is an overwhelming private interest. But Matthews is only unable to engage in substantial gainful activity, a far cry from starvation to compel a preterm hearing! Also, if its so bad for a Matthews (brutal need), he can always become a Goldberg and get a preterm hearing b/f cut off of all potential public assistance. Thus Powell makes a distinction b/t Goldberg and Matthews here. #2In both Goldberg and Matthews, Π gets access to all relevant info ∆ is relying on (witnesses, medical records), but the difference is that: Goldbergsubjective calling for preterm b/c there are credibility issues w/ adverse witnesses needing Π to crossexamine. Matthewsobjective thus no preterm b/c written medical records speak for themselves (but what if the docs have diff opinions; who do you go by; thus Matthews can be looked at as subjective too). #3Powell shows no diff b/t Goldberg and Matthews here. D arguments: -welfare benefits are not property -Π's interest is not brutal need, Goldberg doesn't apply -medical evidence is objective and not biased thus doesn't require cross-examination -
in gvt costs could take $ away from those deserving it P arguments: -welfare benefits are property (even if just statutorily created property) -Π's interest is underestimated -even medical evidence requires the subjective testimony on the doc, or conflicting docs -need to cross -gvt interest same as Goldberg, which involves society caring for poor and disabled Some kind of balancing will be implicit in any decision. Powell, in Mathews, makes this balancing explicit. Explicit balancing in Mathews and either implicit in Goldberg, or a limitless void in Goldberg (could lead to $300 billion extension for welfare in Goldberg). On that basis, could say that Mathews gets it right. Or we could say that the balancing test gets it wrong, because it deprives the due process clause of its strength, of keeping property as a hard figure, rather than a “property” type scenario, where we can decide what is and what isn’t property. Could use same argument with First amendment. Could also say this is slippery slope. Critique: Goldberg designed to expand due process, Mathews limits it to brutal needs (maybe only welfare benefits). Let’s assume it’s the right test. Does he get the test right? Courts that apply three prong test since Mathews, do so assuming they are separate and distinct. Argue for majority: First prong: Welfare not a program to alleviate poverty, it’s one to help people who can’t work. A connection, yes; but not a strict connection. Second prong: Medical evidence is more objective than that in Welfare case. Third prong: There are real costs to hearings and in providing benefits in all cases of false positives. We will, then, wind up (by paying benefits to false positives) create a bunch of false negatives (not those who don’t get hearings, but those who never get in due to limited resources). This

D.

last component of Powell’s argument should sound very familiar (like Black’s dissent). To what extent does Black’s dissent make a back-door re-emergence in Mathews? Argue against majority: First prong: Need for disability benefits is completely underestimated in majority’s opinion. These people we’re talking about have, at some point, been found to be disabled. Their reliance on these benefits is much higher than Powell makes it out to be. (aside) (one difference between majority & dissent) Justice Brennan: Deals with specific facts about Eldrige. Eldridge and his family, after the end of admin case, and benefits cut off, had all furniture repossed (except for one bed). Is this fact a relevant part of the lawsuit or not? Powell: NO Brennan: YES. Brennan, in Goldberg, said “this brings passion back into this abstract.....” He is saying we’re, again, losing that in this opinion. Second prong: Medical evidence is important. What are responses within a range of test results? These tests are being interpreted (not temperature on thermometer). Third prong: There are real costs and dollars here, but at the end of the day, is the govt interest here any different than it was in Goldberg? Does this test, as applied by Powell, miss a whole type of government interests (Michelman’s article - Participatory interests, dignity values, etc.) Miss these if we strictly look at Utilitarian values. Private Interest - life threatening? survivalist? Risk of erroneous deprivation(+ probability of improving accuracy)-not large in this case Public interest (Government burden) - given other two, is cost to public unduly large? Continuum Goldberg v. Kelly (Welfare benefits) -----------------------------------Mathews v. Eldridge (Disability benefits) Sniadach v. (garnishment of wages) Fuentes v. (replevin) Arnett v. (nonprobabtionary federal employee - jobs) Bell v. (driver’s license) (All below Goldberg do not require preterm evidentiary hearings.) 2. Posner article – Outcome Oriented: Posner - Economic Analysis - at the margin - i.e. risk/value of add’l process 1. Legal system involves costs even when it works perfectly 2. Were there no legal system then there would be different kinds of costs imposed on society - costs of all substantive rights that are not vindicated. Purpose of legal system = minimize these costs. 3. Ideally, cost of system < costs avoided by not having the system 4. Goal of law: improve economic efficiency, not compensate victims. 3. Mashaw article - Non-Outcome Oriented: Mashaw: closer to Goldberg analysis: evaluate procedures according to values of due process rather than formal techniques. Value = goals of procedural system, not strictly $ concerns. Eldridge is bad b/c it takes a utilitarian approach (weighing societal value & cost). Alternative theories: individual dignity, equality (of class treatment), tradition/evolution (Ct’s legitimacy and effect on future). Gilbert v. Homar – Facts – Res was security guard at East Stroudsburg Univ. (I.e., worked for state). Arrested for drugs, charges dropped. Suspended when arrested and even after charges dropped, while ESU continued investigation. Eventually told he’d be a gardner, and got back pay. Said suspension w/o notice and chance to be heard violated DP rights. th Issue – Does a State violate the DPC of 14 amendment if not provide notice and hearing before suspending a tenured public employee w/o pay? Holding – Here, Govt. likely not harm Matthews given the rationale below. Supreme Court did send back to lower court to have them determine if the suspension post-“charges being dropped” increased the risk of erroneous deprivation to a point where he should have received the hearing.

E. II.

Rule – The three part test from Mathews. Rationale – Private interest – Here, taking into account the lack of length and finality of the deprivation, not a strong argument for P. Govt interest – Is strong when one who public depends upon is arrested for drugs (even if not yet guilty). Risk of erroneous deprivation – Purpose of preterm hearings is to ensure reasonable grounds to support suspension. Here, the arrest for drug possession gives us the reasonable grounds. Lawrence Intro to FRCP and overview of development of lawsuit – n/a Pleadings: Claims and complaints, defenses and answers A. Elements of the Complaint and Answer – 1. Intro notes (HTF 557-558; 565; 612-613) – A statement of a “cause of action” (C/A) is the statement that certain events occurred in the out-of-court world which prima facie show that the complainant is entitled to a remedy. To determine if the complaint does “state a C/A”, it is necessary to make reference, first, to the applicable substantive law and, second, to the rules of pleading. ComplaintInitial pleading in a lawsuit, and is filed by the Π. Alleges sufficient facts that if true would entitle Π to legal relief. Π does not have to prove anything here. Must be stated clearly and specifically so that ∆ can answer meaningfully. Plays the role of NOTICE and 12(b)(6) tests the adequacy of that notice (vague complaints don't give adequate notice and may be dismissed under 12(b)(6)). Must allege facts to support a legal conclusion, not just assert a conclusion. Filing the complaint commences the lawsuit (exception: in §1332 cases, although filing the complaint commences the action, it doesn't satisfy or toll a SOL requiring actual service of process. (See Guaranty and Ragan) states the C/A: a statement that certain events occurred which the PFcase will show that the complaint is entitled to a remedy. AnswerThe ∆'s response to the Π's complaint. What ∆ doesn't deny is considered admitted. 2. Goldberg complaint (M 39-52) (nothing) 3. FRCP 7-10 – Cause of action: statement of certain events that, prima facie, entitle claimant to remedy. R.7 - Pleadings Allowed; Form of Motions - provides for complaint, answer, counterclaims, replies, etc. R.8 - General Rules of Pleading (a) claims for relief - state juris, claim showing entitlement to relief, and relief demanded (b) defenses/denials - admit, deny, or not enough info - subj. to R.11 (c) affirmative defenses - a defense which the ∆ has a burden to prove. Examples include res judicata, statute of frauds, statute of limitations, waiver. (d) failure to deny = admit (e) pleadings shall be concise, direct, consistent - subj. to R.11 R.9 - Pleading Special Matters R.10 - Form of Pleadings 4. FRCP 12 – 12(b) motions: ∆'s alternative to the answer-optional -∆ doesn't have to answer until motion decided -if ∆ wins on motion, ∆ never has to answer -can make 12(b) motion in answer also -motions based solely on the pleading (anything beyond that -affidavits, etc.would be R56) 12(b)(6)"failure to state a claim upon which relief can be granted." Is the “so what” motion. Even if all true, so what, alleges nothing upon which can take action and grant relief. Here, one needs to allege a set of facts that would back up a legal conclusion allowing the P to win. If all facts P avers are true, and if, on that basis, the P would win, then a 12(b)(6) motion has to fail. 12(b)(6) ∆ can admit everything, but say that nothing in complaint would allow a decision, as a matter of law, for the Π.

1st time a complaint can be dismissed on the merits! only ? here is whether the complaint itself states a legally sufficient claim This motion challenges the substantive merits of the complaint (unique). The ∆asserts that even if all the facts in the Π's complaint were true, Π still wouldn't be entitled to relief under any legal theory! "so what" dismissed w/ prejudice on the merits,can't be refiled(FATAL!)P has to appeal to go on Π will probably have the opportunity to amend the complaint b/c this is fatal to Π, ct gives every benefit to Π…complaint should not be dismissed unless it appears beyond doubt that the Π can prove no facts that could entitle him to relief. The court assumes that all allegations in Π's complaint are true to decided this motion. motion granted = case dismissed on merits motion denied = ∆ may answer complaint or suffer default judgment; ∆ may rely on same grounds for R56 b/f trial, R50 at close of evidence, JNOV after the adverse verdict ability to test a legal issue: get something dismissed in a lower ct w/ prejudice so that you can appeal to a higher ct and change some law. 12(c)counterpart to 12(b)(6); motion for judgment on the pleadings (if more than pleadings, then R56). If ∆‘s answer fails to raise any kind of defense, the Π files for the Π‘s rule 12 motion, 12(c) motion for judgment on pleadings. Asks the judge to look at the pleadings and dismiss the action with prejudice. 12(c) - if ∆ fails to answer the Π‘s motion, then judge can dismiss (even if everything the ∆ says is true, I win). But, at very least, the ∆ can deny (and usually does). Thus, usually, one can defeat the 12(c) on pleadings. Full R.12: (a) - must answer within 20 days; must reply to counterclaim within 20 days. (a)(3) - US gov’t has 60 days to answer a complaint or cross-claim (b)(1) - s/m/j (w/o prejudice…up to 12(b)(6). 12(b)(7) also w/o prejudice). (b)(2) - personal juris (b)(3) - improper venue (b)(4) - insufficiency of process (b)(5) - insufficiency of service of process - (see R.4) (b)(6) - failure to state a claim upon which relief can be granted (b)(7) - failure to join a party under R.19 (nec. joinder) 12(c) - judgment on the pleadings - (“ s 12(b)(6)”) -if matters outside pleadings are considered, treat it as SJ (R.56) 12(f) - m2s - within 20 days after pleading is filed, can be struck if redundant, immaterial impertinent, or scandalous 12(h)(2) - can make a 12(b)(6), 12(b)(7), objection of failure to make a legal defense to a claim can be made in any pleading or in a 12(c) motion or at trial. (can make outside of 20 days after complaint) 5. Molasky v. Garfinkle – (HTF 565) Facts – Π stockholders allege that they can't sell shares b/c of ∆'s fraudulent manipulation of the market and misrepresentation.Πs held stock of Ancorp National Services, Inc. for > 10 years. 3/15/73 trading of Ancorp halted on NYSE. 3/20/73 Ancorp filed a petition for arrangement under Chapter XI of Bankruptcy Act. Causes of Action: 1) against “other defendants” 10(b)(5) §1331 (easy one to understand). 2) against PMM, other defendants. 10(b)(5). 3) only PMM - gross negligence (state claim pendent jurisdiction - tort) §1367.D iversity as well (§1332). Fed claim in fed ct under §1331, and negligence claim under §1367. Fed Act states that Π must be a defrauded seller (Birnbaum rule), which Π is not, so ∆ moved for 12(b)(6) and ct granted thereby dismissing the fed claim w/ prejudice. Fed ct has POWER to hear negl claim (fed claim survived 12(b)(1) and CNOF), but ct dismisses negl claim as a matter of discretion under 12(b)(1) w/o prejudice. Π can refile state claim in state ct. (There is Art.III power for

§1367 J, but dismissed b/c none of the discretionary factors weigh in favor of keeping the state law claim. (might be an abuse of discretion for fed ct to adjudicate this claim.) (Gibbs)) Issue- Does the Π have cause of action against the accounting firm under the statute which allows it to file cause of action when it is a defrauded purchaser or seller of securities even though it has yet to sell such stock (because, as Π says, there no longer is a market for such stock). Rule – Holding – The complaint did not aver cause of action under the statute prohibiting manipulation in connection with the sale or purchase of stock, as the shareholders were not sellers or buyers of stock even though they alleged that the bankruptcy filing of the company precluded them from selling the stock; and that dismissal of that count against PMM also required dismissal of the related pendent count. Rationale – Court has power to hear PMM claim under pendant jurisdiction (federal claim survived 12(b)(1) and CNOF) but dismisses under discertionary part of Gibbs, probably cuz so early in litigation. No discovery yet, etc. Let ‘em all go to state court and go from there. Birnbaum states that a cause of action exists if one is a defrauded purchaser or seller of securities. Π attempted to show precedence in cases where the Πs were found to have cause of action. However, review of such cases showed us that in each case, save for the following, the Π had been a defrauded purchaser or seller. In one case, the ∆ talked about an individual who was defrauded of the opportunity to become a purchaser. In that case, however, the court ruled that reprehensible conduct does not mean that a federal remedy is warranted. The remedy is to be found in state courts. As such, the court dismissed count 2. Count 3, by itself did not have federal jurisdiction. Rather, the Π filed count 3 as a pendent jurisdiction claim, attached to count 2. As the court denied count 2, the Π no longer had a cause of action against which to attach count 3 (as the count 3 ∆ PMM was not listed on count 1). Therefore, count 3 was also dismissed. Lawrence - Two different ways of testing sufficiency of complaints. Test the legal sufficiency of the complaint. Test the factual sufficiency of the complaint. What’s the one thing that the Π did not allege (that they were not forced buyer or seller). So, just say that you are one! You’ll at leaste get past 12(b)(6) that way, and up the settlement anty. But, if you lie, then will lose license. If try to overrule Birnbaum, first you present 7th Circuit and 2nd Circuit decisions, and then argue why your way is better. When Weinfeld started p567 3rd ¶ with “While the continued” he is sharing with us his thoughts that Birnbaum is wrong. “Open letter” to court of appeals, begging Π to appeal. Why is a motion to dismiss 12(b)(6)“viewed with disfavor, and...rarely granted.”? We’d rather see flawed cases go to trial, knowing....settlement (see below). Fear of false negatives is so great, that they are willing to live with false positives. (false positives = people who get settlements who don’t deserve them). (Π - plaintiff who should win, wins) (negative - Π who shouldn’t win, wins) If not allow dismissals, create a false positive (subtly). Create incentive for defendants who should prevail to settle to avoid small chance of going to trial and losing big time. Looks like the decision to grant is a balancing of false negatives and positives. In this case, they view with disfavor, therefore, they would rather see people who are entitled to go to trial (thus, some people who don’t deserve to go to trial, will get to trial - this is the price for keeping false negatives down low). 6. Lone Star v. Horman – (M 87-92) Facts – P (Lone Star) deposited waste on Horman (and Williamson) property w/ permission of H&W. P had to pay $1 million in clean up and now wanted to sue H&W for contribution. P alleged certain equitable factors that would allow it to prevail under the federal statute. Among such factors, that Ds thought were increasing value of land by accepting dumping, and that H&W mixed other materials with their’s. P filed contribution claim and cost recovery claim under CERCLA and pendent state claim for contribution. D filed 12(b)(6) and prevailed. P appealed.

Issue- Does the amended complaint aver enough to withstand a 12(b)(6) motion (even everything the P says is true, would the P win on the merits?)? Rule – (1) Motion under 12(b)(6) will only be granted if it appears beyond reasonable doubt that P can prove no set of facts in support of his claim which would entitle him to relief. (2) When ruling on 12(b)(6), we construe all allegations as true, and make all reasonable inferences therefrom in favor of the non moving party (P). Holding – Construing all of Lone Star’s allegations as true, as Rule 12 (b) (6) requires, and making all reasonable inferences therefrom in favor of Lone Star, there exist enough substantive points in the complaint that requires that the motion be dismissed. Rationale – When motions to dismiss are both challenging a court’s jurisidiction (12)(b)(1) and the existance of a federal cause of action (12) (b) (6), then the courts will view this as a direct attack on the merits of the Πs case (i.e., settle this as a 12 (b)(6) matter). Such motions are only dismissed if it is provable beyond a reasonable doubt that the Π can not prove his claim. From review of the case, the court decided that the Π had provided ample evidence to bar the ∆ from prevailing in its motion to dismiss. (p90). Both parties felt they were adding value for the past x years at no cost to them. They certainly were willing partners. Lawrence - 2 purposes of 12(b)(6): 1) screening device: weeds out legal conclusions and false +s before trial. 2) creates notice requirement (complaint): tests adequacy of complaint’s notice: if the complaint is simply a legal conclusion, the can’t answer back. Complaint must be timely, informative of stake and rights.False +: lenient complaint req ⇑ false +; claims that should NOT have gone to trial get there and may induce ∆ to settle when they shouldn't have; makes ∆ incur costs of trial when case should not have gone to ct. False -: strict complaint req ⇑ false -; claims dismissed which should have been tried; allows the party in the wrong not to have to go to trial; prevents party in the right from getting due damages. Court more worried about false- here b/c at beginning of trial, thus decide 12(b)(6) in light most favorable to Π. 7. Lone Star complaint – (M 93-97) – nothing of note. 8. Albany Welfare v. Schreck – (98-102) Facts – P alleges that D commissioner of Social Services refused to refer children to child st care center b/c of dislike for the Director. Said violated constitutional rights (DP, 1 and th 14 amendment. Also brought pendant claims for state law violations. Issue- Did the P state a claim upon which relief could be granted? Did the complaint state sufficient information upon which the D could reasonably reply, defend himself? Rule – Don’t need to prove at complaint stage, but need to allege. Need to allege, but not prove, a connection between the facts and the legal claim. Mere conclusory allegations are inadequate. Holding – The court granted motion b/c ∆'s complaint was conclusory and mere conclusory allegations are not enough to state a claim for relief. Π's complaint says that ∆ is retaliating for Π's political activity, and that this retaliation violated the 1st and 14th Amend. The complaint presents no facts to support the allegation that the refusal to refer children was in retaliation for Director's organizing activities. (need to allege some facts like ∆ was known in the community to hate Π's political affiliations, etc.) (only reference is that ∆ said thought that Π was not qualified, not anything about political activities.) Missing link of causality. Rationale – The complaint presented no facts to support the allegation that the refusal to refer children was in retaliation for P’s organizing leftist activities. Complaint even said that D told P that D thought P not qualified to run day care center. Statement that refusal to refer children to the day care center was a relatiatory measure designed to prevent P st from exersicing 1 amendment rights is conclusory. No facts alleged to provide any grounds for believing the refusal was politically motivated or would tend to believe that Ds want to retaliate v. P. Lawrence Π assertions ∆ response 1) ∆ could have placed kids agrees

2) no other centers around agrees 3) politically motivated disagree, Π not qualified re: 3) - this is a conclusion, not a fact. Conclusions are not legally sufficient. What facts does she allege to support this allegation? She shows no evidence of retaliation, but has shown sufficient info to support allegation for it . Dissent says all these reasons given by ∆ are smokescreen. Why does he want this to go to trial? (dissent requires less of the Π than the majority does). Why is dissent requiring less? There’s enough smoke here for the case to go to trial. Majority says no, look at it much narrower, and see no smoke. Dissent is willing to run a higher risk of false positives because he sees something circumstantial here that tells him it should go to trial. Why do we test complaints(if it doesn’t say enough)? Want to parse out false positives. Also, if complaint too bare, how do we argue the complaint, prove it or disprove it? Defendants right to due process is not met w/o the ability to answer effectively to complaints. We could all be defendants one day. Anyone could bring suit against us, frivilously, if the defendant has no rights. Why do we allow ∆ to go to court? Dignity and participation values. 12(b)(6) is measured on this scale. Where do we set the bar for 12(b)(6)? 1) We balance false positives and negatives and 2) We must have some level of specificity in a complaint in order to allow the ∆ to have a fair shot at defense (participation and dignity values). Motion to dismiss stronger here than in Lone Star because the link between the political connection and the “retaliatory” action need to be alleged! Don’t need to prove at complaint stage, but need to allege. Need to allege, but not prove, a connection between the facts and the legal claim. Mere conclusory allegations are inadequate. E.g., can’t just say “He discrimminated.” Must present facts to back up this legal conclusion, thus allowing D to defend himself. Look at complaints to see if they are either 12(b)(6) motions in terms of: sufficiency of law (legal sufficiency) - (Molasky - Birnbaum rule changed? Judge Weinfeld open letter to 2nd circuit to change law) (But, we could turn around to see if there are sufficient facts to see if enough facts to go to trial given current law). sufficiency of facts - Are there enough facts to make out claim? Judge can dismiss a 12(b)(6) w/o prejudice (which just says that they can file an amended complaint). That specific motion is dismissed w/ prejudice. But they can amend and resubmit (as if a new complaint). B. Burden of Production and Burden of Persuasion – Intro note – (HTF 571-577) – Lawrence - Burden of pleading is allocated based upon rights, weighing of false positives/negatives, etc. At pleading level, false negatives would be really bad, so we allocate burden in this fashion. We want to allow some false positives to get to trial (so we ensure we don’t have false negatives). 1. At trial level, the Π has opportunity to show proof, etc., so we can restrike the allocation of burden to change the mix of false positives and negatives. By time get to trial, still worried about false negatives, because Π now has chance to prove case. We don’t want a situation where Π‘s should win, but can’t. Burden of persuasion - tells us which party has the burden of proving that a certain thing did or did not happen. Most cases, this is the Π. Burden of proof - tells us what standard of persuasiveness the party must satisfy. In civil cases, preponderance of the evidence. In criminal cases, beyond a reasonable doubt. Fraud, “clear and convincing evidence.” Burden of production - tells us who has to produce the evidence. Should the Π produce evidence of ∆‘s good or bad faith, or should the ∆ produce such evidence. 2. Gomez v. Toledo – (HTF 577-580) Facts – Gomez (P) agent Puerto Rico P.D. P tells supervisors that 2 other agents falsifying evidence for crim. case. P transferred out of position into desk jockey position. Legal Division of P.D. investigates P charges, finds to be true. P testified in case arising out of evidence P alleged to be false. Was a defense witness (said that cops were bad). As a result of trial, crim. charges against P for illegally wire-tapping agents phones. P suspended, then discharged w/o hearing. D.C. of P.R. found no probable cause and

then P won on appeal as well. P sought review of discharge. After hearing, was ordered reinstated & back pay. P felt this process caused him anxiety, embarrassment and injury to reputation. Brings civil rights action under §1983. Issue- In an action brought under 42 U.S.C. § 1983 against a public official whose position might entitle him to immunity, must a plaintiff allege that the official has acted in bad faith in order to state a claim for relief or, alternatively, must the defendant plead good faith as an affirmative defense. Rule – In 1983 action, the P has to aver two items noted in statute. P does not have to allege (prove) bad faith on part of public official. The public official (D) must prove good faith via affirmative defense. Holding – In an action brought under 42 U.S.C. § 1983, the ∆ official must plead good faith as an affirmative defense in order to be in a position to be granted immunity. The Π does not have to produce evidence of the ∆‘s good or bad faith, but, rather, the ∆ must provide such evidence. Nor does the P have to raise the Q.I. defense issue, and bad faith requirement in his complaint at all. It is up to the D to raise the defense in his answer, and he also has the burden of production on that point. Rationale – As remedial legislation, § 1983 is construed generously to further its primary purpose. In limited situations, USSC has held that public officers are immune from §1983. This requires, though, a thorough review into the immunity historically given to the official at common law and the underlying intent. Two allegations are required to bring §1983 action. 1) Π must allege one deprived a right and 2) one did so under action of a statute. Π met both requirements [ 1) - violated rights to due process under 2) color of P.R. law]. Qualified immunity is a defense. As such, the burden of pleading it rests with the ∆. The ∆ must show his actions were lawful. The Π does not have the obligation to anticipate such a defense by saying that the ∆ was acting in bad faith. Whether immunity is established depends on facts within the knowledge and control of the defendant. The test includes determining if the official is acting sincerely and with a belief that he is doing right. There is no way that the Π could know this in advance. To impose the pleading burden on the Π would be unfair to the Π. Lawrence - §1983 requires one to allege: 1-Deprivation of rights - 14th amendment (state law). 2-Color of law (deprivation was under color of law). Affirmative defense - ∆ has to do something (∆ will show the judge why ∆ should win). ∆ has burden of proof in proving an affirmative defense. Did Π allege bad faith? No. Π says he didn’t have to. Why according to Π? Π says he only has to show points 1&2 above. He says ∆ has to show good faith. ∆ says, no, that Π has to show bad faith, as well as 1 & 2. Supreme Court says that Π‘s approach is correct. Why? How could Π know the ∆‘s intent. Also, statute says have to prove 1 and 2. What D says is affirmative defense, to be raised in answer to the P’s complaint. Supreme Court says qualified immunity is an affirmative defense. How does Supreme Court know that qualified immunity is an affirmative defense? Rule 8 says if affirmative defense, then the defense has to prove it. But, is q.i. an affirmative defense? To look for answer (in general), first look at statute. Second, look at precedent. If no precedent or statute, where do we look? All things in the unique possession of the defendant shall be in the ∆‘s case. All things not in the unique possession of the ∆ will be in the Π‘s case. The Supreme Court’s reason for this allocation of the burden of production was that the P s/n/b compelled to allege facts that are “peculiarly w/in the control of the D.” (Contrast this result w/ Times v. Sullivan, where Court took opposite approach cuz the right being discussed was a st constitutional right, the 1 amendment.) Gomez, by contrast, was a civil rights case under §1983. “concur” (Rehnquist): leaves open burden of persuasion re: defense of qualified immunity. Can use Gomez to argue that should have burden of persuasion - has knowledge & control of facts. B. of Pleading/Production under §1983: Π: 1) Const rt violated (here, 14th due process -no hearing or investigation)…thus 1+2 make Π's PF. 2) COL (here, police officers and public officials)……………………….case; if ∆

doesn't answer, Π can get default judgment. ∆: good faith (Under R 8c, ∆ has b. to plead affirmative defenses, so we look to the statute -§1983- to see if qualified immunity is an affirmative defense. The statute is silent, so we look to precedent and find the b. on ∆. So this Ct is really saying that since ∆'s good/bad faith info is peculiarly w/in the control of ∆, give ∆ the b. to plead it.). Court doesn't want to mess w/ Π's civil rts, so put b. to plead good faith on ∆.(not to persuade too). After this case, Π will arg that ∆ not only has b. to plead good faith, but also has the b. to persuade it. This won't be true, though. ∆ has the b. to produce good faith at the pleading stage, but Π has the ultimate b. to persuade const rt violated, COL, and ∆'s bad faith at trail. This is b/c we have now gone through discovery and Π should have the evidence he was looking for. Affirmative Defense: I acted in good faith. Defensive Defense: I didn’t act in bad faith. 3. Note on allocating elements of claim/defense – (M.103-104) Burden of good faith is on D in Gomez and bad faith is on P in Sullivan? Why? We want to favor party with the constitutional right on their side, especially First Amendment. In Times context, who is defending the constitutional right? ∆ is making a constitutional assertion, in Gomez, the Π is making the assertion. Public interest is served by free press. In Times, false positive is freedom of press; in false negative, people get defamed. This is balance, and it seems the public is better served by free press. Allocating burden = allocating error. NYTimes v. Sullivan (1964): US SU: Brennan Facts: ∆ NYT carried an ad that disparaged Π. Procedure: Π sued ∆ for libel (clear and convincing standard). ∆ moved for 12(b)(6) on grounds that the contents of the paper, even if a little inaccurate, are protected by the 1st Amend (free press). Holding: In libel suits, Π has b. to produce, to show malice by ∆ to state a claim sufficient for relief. If Π does not plead ∆'s malice, claim will be dismissed under 12(b)(6). Here, Ct prefers to err in favor of NYT b/c doesn’t want to chill 1st Amend rts. Court doesn't want to mess w/ ∆'s 1st Amend rts, so put malice b. on Π. ( to produce, or to persuade too?) See Anderson v. Liberty Lobby 4. Texas Dept. of Comm. v. Burdine – (M105-111) Previously, talked pleadings; here we’re talking trial!! Π always has the b. of persuasion in Title VII cases. Π's PFC for Title VII cases: (as established in McDonnell Douglas) 1)applied 2)qualified for position 3)didn't get position 4)position remained open 5)member of a protected group Texas Dept. Com. Affairs v. Burdine (1981): Facts: Π, Εmployee, claimed that ∆, public agency, refused to promote Π and then fired Π b/c Π was a woman. Procedure: Π sued ∆ under Title VII (Civil Rts Act of 1964) for employment discrimination. Holding: ∆ only has the b. to produce a non-discriminatory reason for firing Π after Π proves her PFC. The b. of persuasion stays w/ Π at all times. Thus only the b. of production switches to the ∆. Burden allocation in Title VII cases: Π: b. to PROVE PFC by a preponderance of the evidence. (This is the 5 items noted above). -(presumption that ∆ unlawfully discriminated, thus b. of production switches) ∆: b. of production shifts to D to show a legitimate, non-discrim reason for firing Π

-all ∆ has to do is produce some evidence of legit, nondiscrim reason (less than a preponderance) -if met b. of persuasion to Π Π: b. of persuasion by a preponderance of the evidence, either 1) indirectly or 2) directly: 1) ∆'s legit reason not true reason for D’s actions, but rather was a “pretext for discrimmination (unworthy of credence) (indirect) 2) ∆ intentionally discriminated (direct). So, if Π proves PFC and ∆ proffers a legit reason and the jury doesn't know who to believe, ∆ wins. Lawrence – Court of Appeals - Title VII ∆ has burden of proving preponderance of evidence existance of legit nondiscrim reasons. (this shifted burden of persuasion to ∆.) Supreme Court - Title VII ∆ has burden of production of “some legit, nondiscrim reason” Π then has burden of proving preponderance of evidence that reason offered by ∆ was not true reason, but rather a “pretext for discrimination.” If not show prima facie case, Rule 50(a) judgment as a matter of law to dismiss the case. Before 1991, called directed verdict. Since then, judgment as a matter of law. (because no rational jury could find for the Π). Trial version of 12(b)(6). At pleading stage; Π has to do what? Π brings a cause of action; alleges the five items noted in Title VII. If not carry burden of pleading (if everything true, can you win?), ∆ files 12 (b) (6) and wins. ∆ either denies or sets forth affirmative allegations. If ∆ not put forth sufficient answer, then Π wins on 12(c). At this point, “off to trial we go.” At trial stage; (now not alleging things, but producing evidence). If Π does not provide evidence to substantiate allegations, then ∆ files 50(a) and wins. If ∆ does not come forward, Π wins as a matter of law (50(a)). At this point, the trier of fact makes decision (jury or judge). (assuming no rebut byΠ). If jury believes prima facie case, and believes ∆ reasons, what result? Verdict for ∆. If rebuttal evidence is presented, then presumption disappears. Now, the jury is asked, are you more likely persuaded or not? If yes, then Π wins not as matter of law, but as matter of fact. If Π fails to prove elements of prima facie case, Π loses as matter of law. If ∆ fails to meet his burden of production, Π wins as a matter of law. 5. Price Waterhouse v. Hopkins – (M105-111) (1989): US SC: Brennan Facts: Π, female senior manager, denied promotion to partner. Procedure: Π sued under Title VII. Holding: ONLY A PLURALITY! (4 Justices), so use it to arg for Π but NOT LAW! Π: b. of proving PFC by a preponderance of the evidence -b. of persuasion switches to ∆ ∆: b. of persuasion of a legitimate reason -if satisfied, b. of persuasion switches to Π……..If ∆ can't satisfy this, Π wins. Π: b. of persuasion of ∆'s discriminatory act Brennan thinks this is in line w/ Burdine b/c he characterizes ∆ showing his legit reason as an affirmative defense. Thus its not about switching b.s b/c ∆ do have the b. to persuade affirmative defenses. O’Connor disagrees, says this is a switch in burden of persuasion, but says is justified in cases where P proves that employer knowingly gave substantial weight to an impermissible criterion (Lawrence calls this prima facie plus case. P has proven PFC plus adduced even more. Here, she showed by preponderance of evidence that discrim factors motivated employer’s decision, thus D should no longer be afforded presumption of good faith; thus appropriate to shift the burden and require employer to disprove the allegations. Lawrence - Court of Appeals - Once Π proves disrimination played any role in employment decision, ∆ may avoid liab only through proving by clear and convincing evidence (burden of proof higher than preponderance) it would have made the decision in absence of discrimination. Thus burden of persuasion had shifted to ∆. Supreme Court - Supreme Court agreed as to burden of persuasion, but not by

clear and convincing evidence, but by preponderance. Brennan and plurality said they followed Burdine: Said PW was matter of asserting affirmative defense. Thus, it had to prove its affirmative defense, but the Π still retained the ultimate burden of persuasion as to discrimination. O’Connor concur: Acknowledged PW was change in Burdine, justified by public policy needs of Title VII and precedent. Said burden of persuasion did shift. Kennedy dissent: Proof of discrim behavior not warrant departure from Burdine. ∆ has every incentive to present best case to avoid liability (to overcome prima facie case of liability) in Burdine, so no need to change. 6. St. Marys v. Hicks – (581-590) Facts – Π, black man, fired from prison guard job. Says ∆ discriminated on basis of Π's race. Brings action under Title VII. Issue- In a suit against an employer alleging intentional racial discrimination in violation of Title VII of the Civil Rights Act of 1964, does the trier of fact’s rejection of the employer’s asserted reasons for its actions mandate a finding for the plaintiff? Rule – Holding – The trier of fact’s rejection of the employer’s asserted reasons for its actions does not mandate a finding for the plaintiff as a matter of law. The burden of persuasion is on the plaintiff to prove that he was discriminated against, not on the defendant to prove that his alleged reasons for acting as he did were not discriminatory. (Specifically, the “indirect” prong of the McDonnell/Burdine process is eliminated as a matter of law.) Rationale – The Court of Appeals said that a discredited ∆ statement is as good as no statement at all and, therefore, as a matter of law, one must find for Π. The Court disagrees. By producing evidence, the ∆ does place itself in a better position. The determination that a ∆ has met his burden of production can involve no credibility assessment as the determination necessarily precedes the credibility assessment. Once the ∆ has produced evidence, the trier of fact proceeds to decide the ultimate question; whether Π has proven that the ∆ intentionally discriminated against him because of his race. When the trier of facts looks at the prima facie case and the ∆‘s response, he may decide to reject the ∆‘s explanations and find in favor of the Π. As such, the trier of fact may find in favor of the Π, but does not, as Court of Appeals held, have to find in favor of Π as such a rule shifts the burden of proof to the ∆, which is counter to the repeated admonition of the court that such burden stays with the Π. Effectively, the majority has done away with the “indirect” method of defeating the ∆‘s response to the prima facie case (see below). As such, if a ∆ does provide any admissable evidence in response to a presentation of a prima facie case, the burden of persuasion remains with the Π and he must prove that discriminatory reasoning more likely influenced the ∆‘s actions than did what the ∆ presented. Note that this places the burden of persuasion on the Π, similar to the NY Times situation. In that case, ∆ (NY Times) felt its constitutional rights would be infringed with an adverse result. In Gomez, the burden of persuasion was on the ∆. In that case, the Π felt his constitutional rights were being infringed. What’s the story in this case? Perhaps, the constitutional claim is a trump card. I.e., the rule is that burden of persuasion is on the Π unless the Π‘s constitutional rights are in question, in which the rule is the burden of persuasion is on the other party (party not claiming infringement). In this case, we could have false negatives moreso than false positives as people who should win might not win (Hicks, for example). Lawrence - At district court level:

Π produced prima facie case. ∆ produced evidence, which trier of fact did not believe. Π did not persuade that it was racial discrimination, so ∆ wins (defeats SJ motion). Court of Appeals: Reverses, as ∆ case disproven, as matter of law, the presumption still in case and Π must win. Supreme Court: Scalia reverses, and agrees with district court. Scalia says purpose of prima facie case is to screen out cases that shouldn’t go to trial. It tells you you can get to trial. Scalia follows the Title VII b. allocation created by McDonell Douglas: Pleadings: Π: allege PFC, if not12(b)(6) ∆: answer w/ legit reason, if reason taken as true can't overcome Π's PFC as a matter of law 12(c) (rare) Trial: Π: b. to prove PFC by a preponderance, if not R50 -this produces the presumption that ∆ discriminated; thus b. of production switches to Π to rebut this presumption -jury may find for Π if it believes that PFC proves discrimination by a preponderance, if not ∆ wins ∆: b. of production of evidence of a legit reason ( no proof needed) -even if reason is wrong, ∆ satisfies b. if reason, as believed by jury, would be legit -this is to rebut the presumption -if notR50 Π: b. of persuasion always w/ Π (even if ∆'s reason is false) to prove that ∆ intentionally discriminated against Π; just showing that ∆'s reason is a lie is NOT enough! -If Π convincingly rebuts ∆'s proffered reason, jury is permitted to infer discrimination, but not compelled to. Π still has to prove discrimination. *Π will use a motion for judgment on the pleadings, 12(c) when the complaint states a good claim that the ∆'s answer confesses an affirmative defense, when such defense is insufficient as a matter of law. Dissent: use as Π arg to win if ∆'s reason is a lie! Says under Scalia, D has incentive to lie! Π: b. to prove PFC; presumption of ∆'s discrimination ∆: b. to produce legit reason Π: b. of persuasion may be met by either: 1)directly persuading that discriminatory reason motivated ∆ more likely than not 2)indirectly persuade by showing ∆'s proffered reason is unworthy -here, ct must find for Π if Π proves PFC and ∆ lied. Scalia v. Souter on Hicks: Souter wants Hicks to win on a directed verdict without allowing the matter to go to jury under assumption that there can only be one verdict. Scalia wants the matter to go to jury. As such, it would, on the surface, not seem to be a big deal, as one would expect that 99 of 100 times the jury would rule in favor of Hicks (assuming that all that’s given is prima facie case, plus then the ∆‘s production of evidence). However, this is a big deal as this then allows the appeals court, assuming jury sided w/ Π, to construe Hicks to say they are allowed to overturn as “not enough evidence to convict” if all that is presented at trial is the prima facie, production of defense evidence, plus then Π rebuttal of ∆, w/o bringing new evidence to light. Some circuits today are saying that they have the right to overturn, others are saying they don’t. There will need to be a Hicks Jr. to resolve this at the Supreme Court level.

In a prima facie case, if ∆ overcomes presumption by meeting his burden of production, Π can still win even though the presumption is out the window. The Π can still win on the overall merits of the case, as decided by the jury. 7. Wrap-up: Burdens - Pleading and Trial burden of persuasion: prove it happened burden of proof: measured by std - i.e. preponderance, clear and convincing BURDENS AT PLEADING STAGE Π must ALLEGE PFC: sufficient allegations, if proven true allow Π to win! Allegations must detail facts to support a legal conclusion; can’t simply be legally conclusory statements ⇓ ⇓ -If yes, Π meets b. -If no, Π doesn't meet b. -∆: answers; makes allegations -∆ moves for 12(b)(6) + denials and Aff. Def (R8(c)). -case ends here on merits! / \ (judge can dismiss 12(b)(6) / \ w/o prejudice to allow for amnd. comp.) / \ ⇓ ⇓ -If yes, ∆ sufficient -If no, ∆ does not allege sufficient denial of facts allegations + denials -Π mover for 12(c) (∆ can use 12(c) too) if proven at trial allow -case ends here ∆ to win. -If ∆ does not answer, Π can move for default judgment! -case goes forward BURDENS AT TRIAL STAGE Π's production b. is to PROVE a PFC (in order for judge to send case to jury) ⇓ ⇓ -If yes, Π meets b. -If no, Π doesn't prove PFC -∆ has b. of production refutes Π's evidence and offers -∆ moves to dismiss under R50 new evidence (In Title VII- ∆ gives legit reason) (trial equivalent of 12(b)(6); | means that given what Π has | proven, no rational jury could | find for P). ⇓ -If ∆ doesn't produce anything, Π still has the ultimate b. of persuasion. -Legally, ∆ can still win; but in the real world, if ∆ doesn't produce anything, the judge will instruct that Π has the b. to persuade by preponderance (more likely than not ->50%), and jury would probably find for Π. -Always in ∆'s best interest to produce something! If neither party has proven anything to the jury's satisfaction, the party carrying the b. of persuasion loses! (usually Π). C. Pleadings under the Federal Rules and Rules of Professional responsibility – 1. Rule 11 – 1. Rule 11 - generally has to be well founded in fact (b3) and law. a. Rule 11 requires: a. Signature - address and phone number b. Representations to Court - Pleading, written motion,

2.

3.

4.

or other paper is : 1. not presented for improper purposes 2. supported by law or a nonfrivolous extension of existing law. 3. supported by evidence or likely will be. 4. , if denials, supported based on evidence or reasonably based on lack of information. c. Sanctions - If b. violated, court can sanction any attorney or firm. Court can also chose to award court costs and attorney fees to prevailing party. 1. Initiated by: a. Motion or b. Court initiative. 2. Nature of sanctions, limitations - Meant to be harsh enough to deter behavior. a. Monetary sanctions can’t be awarded against represented party for violating (b)(2). b. Monetary sanctions not awarded on court initiative unless court orders show of cause before voluntary dismissal or settlement of claims. 3. Order - Court describe bad conduct and its logic d. Inapplicability to discovery - Rule does not apply to discovery and other issues covered in rules 26&37. Rule 11 - 1983 & 1993 amendments 1938 1983 1993 a. Pleadings Pleadings, motions, Same + safe other papers harbor b. attorney attorney & party atty, party, responsible responsible firm rspnsble c. subjective objective std: legal/factual standard reasonable atty basis,imprpr purpose may sanction shall sanction may sanction discvry motions-yes discvry mts-no d. no atty fees atty fees if snctnd fees for deter reason, fee to court Readings of advisory committee notes, 1983 & 1993 a. 1983 - 1938 Rule was not harsh enough to deter bad behavior. Also was confusion as to what was required, so courts were reluctant to impose sanctions. Now needed to do some prefiling inquiry into facts and law. b. 1993 - Revision broadens scope of obligation to act properly, but places constraints on sanctions. No sanctions if, after party finds out that position false, party no longer advances that position (up to other party to discover it is no longer relevant). Rule was equalized upon Πs and ∆s. So made it tougher for ∆s to “frivilously” file this motion. Court can strike papers, issue admonitions or reprimands or censures, require attend seminars,fines or further disciplinary actins. Rule 11 fines should deter, not compensate so fines usually pd. to court,not other party. “Safe Harbor” created as motion for sanction follows Rule 11 motion. This allows other party to withdraw, etc., before sanctions are opined upon by judge. Rule 11 1993 amendments -changes v. 1983-casebook a. Safe Harbor - after filing of Rule 11 motion, movee has 21 days

to withdraw the offending representation. b. Continuing duty - If find out later representation no good, can no longer advocate it. c. Seek supporting evidence - Can file complaint even if you only expect to find corroborative evidence later (must be likely). d. Possibly less severe sanctions - previously awarded costs to other party, now only have to sanction to point to deter bad activity. e. Firms liable for sanctions (only change to expand Rule 11). f. Inapplicable to discovery -covered in Rules 26&37. g. may sanction as opposed to shall sanction h. fee to court, not to atty (usually) 5. 1993 was to reduce explosion of litigation (Judicial economy). Attempt by rule to return to lawyerly civility. 6. Lawrence -lawyer must sign complaint!!! -applies to pleadings, motions, and other papers. -does NOT apply to Discovery! -At least in fed suits, it is the lawyer's job to make sure that a pleading, etc. is not frivolous, and not issued to harass or delay or ⇑ lit costs for the adversary. R11 imposes this req, and provides that a lawyer who fails in this duty may be fined or otherwise sanctioned. -Also, all allegations in the pleading, etc. have evidentiary support, or are likely to have evidentiary support after a reasonable opportunity for discovery--and these are specifically identified as such. -PURPOSE: to deter lawyers for Πs from asserting claims that have no basis in law or fact (frivolous) -Rule 11 1993 changes : Will create less Rule 11 motions (could create more false negatives as some who wish to file, won’t). 1) “Good faith argument for changing current law” became “may impose sanctions.” 2) Firms can be held liable. 3) “shall impose sanctions” became “may impose sanctions” 4) Other party not guaranteed legal fees. 5) Both parties could be fined (party bringing suit could also be fined). R11 requires: 1)FACTUAL BASIS: -objective standardwhat lawyer should have known after an inquiry reasonable under the circumstances (subj/ pure ♥ empty head "god faith" standard not enough anymore) -reasonable inquiry lawyer MUST do this differ from case to case: if the claim is one that should logically be supported by evidence already available to Π, lawyer must at least ? client about it; if the only likely evidence supporting the claim lies w/ the ∆, Π's lawyer can probably sign complaint w/o detailed inquiry on theory that lawyer can get the evidence during discovery (have to "specifically identify" these allegations that you can't prove yet, but will in the future). -make sure you don't help client misrepresent the facts! -bad faith not required to violate R11, just failing the objective standard is enough!

-if no factual basisviolation 2) LEGAL BASIS: -b. on the lawyer to make a legal inquiry (lawyers belief not enough anymore) -the claim must be warranted by existing law or by nonfrivolous arg for the extension, modification, or reversal of existing law or the establishment of new law -if no legal basisviolation 3) IMPROPER PURPOSE: -lawyer must do an objective evaluation of what lawyer's purpose is (what lawyer thinks to be the purpose not enough anymore) -purpose CANNOT be to harass or cause unnecessary delay or ⇑ lit costs unnecessarily *Safe Harborcan escape sanction by withdrawing the allegation, etc. W/in 21 days of being served w/ the R11 motion (then sanction can't be given no matter what!) *Sanctions-limited to what is sufficient to deter repetition by that lawyer or other lawyers similarly situated; not intended to compensate! -monetary: fine, probably paid to ct (thus less initiative for ∆ to move for R11 b/c gets no $) (only paid to other party is necessary for deterrence) -non-monetary: censuring the offending lawyer; striking the offending pleading -discretionary: if ct finds a R11 violation, it MAY impose sanctions -law firms also liable for sanctions -signing party may be liable for sanction, except for frivolous legal args *Continuing DutyIn situations where the lawyer does a reasonable inquiry b/f filing, but later learns that the pleading is not meritorious, the lawyer CANNOT present or advocate it in ct…if lawyer does = violation, even though it was ok b/f. *Even if ct didn't have SMJ, or Π voluntarily dismissed the complaint, the court can still levy R11 sanctions! Ct has power from ArtIII that transcends SMJ, etc. *Frivolous complaints violate R11. A frivolous complaint is one not grounded in fact and law. If there is no factual basis, but there is a legal basis and a proper purposeR11 violation. If there is no legal basis, but there is a factual basis and a proper purposeR11 violation. If there is both a factual and legal basis (thus non-frivolous), but an improper purpose, NO R11 violation. *Filing a nonfrivolous complaint (legal and factual) will not warrant a R11 violation even if it is partially filed for an improper purpose. 1993 What is key in 1993 re: factual basis? Requirements qualified. Explicit division between allegations and denials - 11(b)(3) and (4). What if find something out during life of suit? (client’s brakes not working well at the time) Don’t have to amend pleading, but can no longer continue with that allegation in court. Factual Basis Legal Basis

1938 Good faith/ subjective

1983 Reasonable inquiry objective Reasonable basis or good faith basis for modification/reversal of existing law (1)

1993 11(b)(3) - Allegation 11(b)(4) - denials Still objective

Proper Purpose (1)-hypo, Molasky 1983, we all know that Birnbaum is law, therefore no legal basis, therefore 11 can hold. Answer: society changes, law has to change, therefore we need to have the ability to file suit to change the law. We want parties to look at allegations of the other side, your job is to find problems on the other side. If they find a problem, they have no affirmative obligation to do your work. How would world look if parties not forced to do their own work in a lawsuit. Inquisitorial system - Europe - asks court to get evidence. Ours has two parties do this work. What would we want to know about 2nd circuit practice to defend a Rule 11 motion in a case where Molasky is affirmed by 2-1 rule. Now someone wants to file a new case in the 2nd circuit. How defend rule 11 motion against that complaint and what do we need to know about the circuit’s practices? What if a panel of 3 can overrule another panel of 3 and only an en banc makes it non-overturnable? Then I could ask for change as our precedent was en banc. how Rule 11 moved from 1983 to 1993 Basis Legal basis believed law to be to should have known law to be Factual basis knew to should have known Proper purpose subjective (what was atty’s intent) to objective (what’s on complaint) Legal and factual basis is measured on reasonable lawyer. Why not the same by purpose? What was good about safe harbor? Judicial economy. What was bad about safe harbor? People might not fight to change law. Made sanctions harder to get, so increased number of frivilous suits (as have 21 days to withdraw). 1993 rule: Reduce collateral litigation and deter frivilous pleadings, motions, from making it through court, even if the non-moving party (innocent party) is going to have to make motion on their own and never get compensated for it. 1983 goal Force party to internalize costs and make other party whole. 1993 goal Get pleading out of the case; secondary - party to internalize costs and, as final fallback, designed to make party whole (latter of which was primary goal of 1983 safe harbor, shall v. may, costs to atty v. costs to court). 2. Sussman v. Bank of Israel – (M 117-127) Facts – Πs founders, etc., of NAB, Israeli bank. NAB folded after years of fraud, embezzlement, mismanagement by sr. mgmt. BOI paid depositors and obtained appointment of Receiver of the state of Israel to liquidate NAB’s assets. xxxxxxx Πs hire Washington lawyer Lewin to look into suits. Lewin drafted complaint to be filed in NY naming BOI, Ministry, BOI officials & NY Israeli bank. To be filed complaint asserted same as cross-complaint in Israel. Also alleged BOI’s filing of suit was defensive measure to force Πs to bear NAB costs of BOI’s failure to rectify fraud. Sought $17 million. Lewin sent draft complaint to many, including state of Israel asking to talk and head off suits. Letter said, “if not talk w/in 10 days, will file suit in NY. Let’s not give bad publicity to state of Israel, let’s not damage foreign investment in Israel.” Israel not willing to settle. Lewin filed complaint in NY. BOI, in lieu of answer, moved to dismiss on many grounds, including forum non conveniens. D.C. dismissed on fnc w/o prejudice (not address other issues). BOI then moved for award of sanctions pursuant to Rule 11, arguing (a) lawsuit instituted for improper reason and (b) complaint had numerous arguments lacking factual and legal basis. D.C. granted motion, citing that the complaint had, in part, been filed for an improper purpose. Finded Π $50k. This based

solely on argument (a). D.C. said Lewin letters were extortion letters (negative publicity). Said filing of complaint in doubtful venue for express purpose of asking for compromise is stark example of improper and oppresive litigation. D.C. said amount was not to compensate ∆s for expenses, but to deter similar filings. Lewin appealed Rule 11 ruling. Issue- Is a Π‘s subjective intent sanctionable under Rule 11 if the objective intent as manifest in the complaint is well grounded in law and fact? Rule – (1) In order to warrant an award of Rule 11 sanctions on the basis that a complaint isn’t well grounded in fact or law, it must be patently clear that a claim has absolutely no chance of success. (2) Rule 11 sanctions may be imposed only for an abusive pleading, motion or other paper. Prelitigatoin letters don’t fall within the scope of the Rule. (3) If a reasonably clear legal justification can be shown for the filing of the paper in question, no improper purpose can be found and sanctions are inappropriate. Holding – The Π‘s filing was objectively adequately grounded in fact and law to obviate a sanction under Rule 11. The subjective intent of a party, whether or not improper, has no bearing on Rule 11. From Westlaw: Held that (1) complaint was not frivolous, (2) award of sanctions could not be sustained on ground that directors had selected forum inconvenient to Israeli bank and agencies, (3) directors could not be sanctioned for having filed nonfrivolous complaint, based upon allegedly improper purpose of compelling settlement of parallel action being brought in Israel, (4) filing of lawsuit to compel settlement was not an improper purpose, (5) sanctions could not be based upon court’s inherent power, and (6) court had properly decided sanctions could not be based on vexatious multiplication of litigation. Rationale – Well grounded in fact and law (i.e., nonfrivilous) When viewing the complaint objectively, as required with post 1982 Rule 11, it must be patently clear that a claim has absolutely no chance of success. The D.C. declined to find that the complaints were not well grounded. Moreover the D.C. took steps that indicated it expected the Π to pursue such allegations in the Israeli action (dismissing w/o prejudice and asking the ∆s to ensure Π would not be detained in Israel). Thus, claim deemed nonfrivilous. Motion can’t be sustained on challenge that choice of venue was selected in order to be inconvenient to ∆. The D.C. did find that the choice was “highly doubtful” but did not say it was “improper.” Moreover, the Π did allege that ∆ used a NY branch of Israeli bank in its manipulations. Improper Purpose as Sanctionable To the issue of whether a court can impose sanctions when it finds that the complaint had been filed, in part, for an improper purpose: If a reasonably clear legal justification can be shown for the filing of the paper in question, no improper purpose can be found and sanctions are inappropirate. The court is not to delve into the attorney’s subjective intent to decide on this issue. Subjective evidence of the signer’s purpose is to be disregarded. Precedent tells us that complaints are not filed for an improper purpose if they are regarded as nonfrivilous. The court not only did not find the claims to be objectively unreasonable but imposed restrictions on defendants in order to allow Πs to have their claims adjudicated on the merits. A party shouldn’t be penalized or deterred from seeking and obtaining relief simply because one of his multiple reasons may have been improper. Was finding as improper correct? Rule 11 is not meant to safeguard ∆s from public criticism that may result from the assertion of nonfrivilous claims. Warnings by a party of its intent to assert nonfrivolous claims are not improper. Court also found that D.C.’s use of prelitigation papers was not appropriate. Not unusual for Πs to try to settle before suing. This letter was used for such purpose. Such letters do not suffice to show an improper purpose if nonfrivilous litigation is eventually commenced. Lawrence - Appellate Review: abuse of discretion standard (if based on an erroneous view of the law or facts). Dist ct decision was based on an erroneous view of the law and facts, thus App Ct reversedNO R11 violation. Since complaint had both a factual and

legal basis, it was Not frivolous; and just b/c one of its purposes may have been improper doesn't mean there was a R11 violation. (but may be a violation of the ABA rules or the Code for Professional Conduct!) *So, Π arg that improper purpose is not an independent prong so that Π not guilty of R11 violation. *And, ∆ arg that improper purpose is an independent prong so that Π is guilty of R11 violation even though Π had factual and legal basis for filing complaint. *If you had factual and legal basis, could a completely improper purpose alone = R11 violation??? This is not case about constitutional authority, but about statutory authority. (Diff between that which is constitutionally mandated and that which is constitutionally authorized - from early day notes). About whether or not executive branch can act w/o legislative authority in an area where legislative authority could have been granted. What is the relief the govt wants? equitable relief (want to make sure the patients are treated fairly. Probably means enforecement power to some fed govt. body to go into MD once in a while to audit, ensure people treated well, maybe even get some fed people in to run the place). Want court of equity relief of injunction. Exceptions to statutory requirement which allow suits (2-5 are just like private individual): 1) - If the public interest is in imminent danger. 2) - Govt. property (govt. as property owner can sue just as a private concern can). 3) - Native Americans (right as a guardian to sue on behalf of it’s guardee) 4) - power over interstate commerce 5) - Can sue for breach of contract Why not sue under Native Americans (extending to all guardians)? Slippery slope. Would probably go beyond constitutional authority. Obviate people’s rights of privacy. Whenever we read 2-5 broadly, we must realize we’re outside bounds of statutory authority and have to tread lightly. Wouldn’t just expand govt’s rights to act, but also executive branch’s rights to act. Let’s group into 3. 1) statutory 2) 3,4,5 - Govt perceived as priate individual. 3) Public interest 3. Note on Rule 11 – (HTF 656-660) n/a 4. ABA Model Rules of Pro.Conduct & ABA Code of Pro. Resp. (R 3.1-3.3; DR7-101,102) Lawyer Rules: -Cannon 7: Rule 7-102: Code of Professional Conduct -SUBJECTIVE standard -lawyer cannot file suit when knows it is malicious -lawyer has the responsibility to find out client's intentions; cannot bring suit merely to harass or maliciously injure another (no proper purpose) -ABA model rules -OBJECTIVE standard -can't bring claim when primary purpose is to harass -came after Cannon 7thus moving from subjective to objective -here, the objective = reasonableness standard (harder standard than the pure ♥ empty head) Even if not sanctioned under Rule 11, c/b sanctioned here. D. The Government as a Plaintiff – 1. In re Debs (M 128-132) Facts – The US Gvt bringing suit for injunctive relief against ∆,Debs-union leader, in an effort to compel him to end rail strike which is preventing mail service and crippling the economy.

Issue- (1) Does the Federal Government’s relationship to interstate commerce and the transportation of the mail authorize it to directly interfere with one’s desire to obstruct such commerce or mail? (2) If such authority exists, as such authority implies both power and duty, does a court of equity have jurisdiction to issue an injunction in the aid of the government’s performance of such duty? Rule – 1) public interest at large (Here - public interest in mail; national emergency) 2) within “ambit of federal authority” - from enumerated powers - limited but sovereign (Here, interstate commerce). Holding – Even w/o statutory authorization, the US Gvt is authorized to relieve any obstruction of interstate commerce and the transportation of the mails. The Federal government does have power and duty to ensure that interstate commerce and the mail system are protected from inappropriate hinderances. While the government does have right to forcibly remove such hindrances, the government also has the right to invoke the powers of the courts to remove or restrain such hindrances. Debs says you have to have (1) constitutional authority (in this case, commerce clause) and (2) expansive effect. Rationale – Issue 1: The Federal government has the duty of direction, supervision, control and management of the interstate commerce and mails systems, as noted in Article I §8 (3) of the Constitution. The government has the duty to ensure such systems are free from unlawful obstructions. The government has the right to enforce actions against unlawful obstructions via force or action in courts (latter granted under Article III §2 (3). Issue 2: For matter of public policy, the nation is better served if such disputes can be resolved in the courts rather than by force. We should not cause individuals to have to be in danger of harm (citizens of members of militia, who are, of course, also citizens) unless necessary. Thus, the right of force does not exclude the right to use of courts. Equity only interferes with the protection of property. The Government has a property interest in the mails. As such, the Government can bring action in equity to guard such rights. The carriage of mail is considered carriage of property under Articles V and XIV. Interests don’t have to be pecuniary in order to apply for rights to judicial process, but, rather, the rights can be considered the obligation to promote the interest of all. Lawrence - Cts reasoning is that the fed gvt has authority over interstate commerce under ArtI,§8, thus the US Gvt has the power to enforce the const (ArtI,§8) by force (bring in the nat'l armed forces); so US Gvt should also be able to use the ct system as a more civilized means to the same ends (instead of unleashing nat'l forces). Here, US Gvt had standing to sue b/c this was a National Emergency, and ∆ was: -violating a constitutional provision (Art.I,§8); and -hurting the public at large by obstructing interstate commerce and the mail So, in Debs, 1)Const gives fed gvt authority (Art.I,§8) 2)Congress is silent (has not given or denied fed'l gvt authority) 3)Thus, Exec can go forward b/c in the absence of Congressional denial, the exec has authority under Const. 2. USA v. Brand Jewelers (M 133-138) Facts – Brand would grant credit to people not worthy thereof and then sell them jewelry People would default and Brand would sue them, but not serve them with notice Brand would be granted default judgment and be granted the opportunity to goagainst their assets, garnish wages, etc. USA brought suit to enjoin Brand from this practice. ∆ moved for 12(b)(6) dismissal. Issue- Does the USA have authority to bring this action against the ∆? Rule – US can sue if a) acting as a private party, b) statutory authority or, failing those, then the Debs factors (constitutional authority and widespread public harm). Holding – Due to the character and extent of alleged wrongdoings, as well as the burden upon interstate commerce, the USA does have authority to bring this action. Moreover, this authority is granted as the USA has the right to bring an action to protect citizens’ rights against the denial of property without due process under the 14th amendment.

Rationale – To the ∆‘s arguments on direct v. indirect and physical v. non-physical danger, the court said the gist of Debs was not the above, but rather an obstruction of broad impact, sufficient in its dimensions to be thought public rather than private. Also, to defeat that argument, says that times change and the operations of Constitutional provisions must be flexible enough to move with the times. Court says govt not take too much power, especially as it is peaceably submitting to the “whims” of the court. Lawrence - The ct expands the holding in Debs and allows US Gvt to sue! 2 factors ct gives that allow US to sue are: 1)interference w/ interstate commerce (not real reason; use it to fall under Debs directly). 2) widespread deprivations of a const rt -loss of property w/o due process (14th) -real reason US can sue here (stretch: numerous private injuries = public injury) So, here, there is no statutory authority and US is not acting as a private person, so the court must use Debs to allow US to sue. Ct reads Debs v-expansively and comes up w/: th 1)const authority14th Amend (denied property w/o due process) (but, 14 says nothing about fed authority; Congress has the rt to grant power here but hasn't…ct really stretched Debs to find fed authority where there's none) 2)public injurywidespread deprivation of property through fraud (whereas Debs sees public injury as a nat'l emergency) 3. USA v. Solomon (M 139-147) Facts – Rosewood State Hospital in MD treatment and care to metally retarded persons. Many involuntarily confined. USA brought suit as above. ∆ filed for dismissal on grounds that US lacked authority and standing to bring suit. D.C. granted motion. Issue- Does the USA or the Attorney General have the authority to sue to redress the alleged deprivations of the patients’ 8th, 13th and 14th amendment rights. Rule – (1) The USA can bring suit on a contract to which it was a party of to protect or vindicate a right to property which it owns, even without benefit of statute. (2) The USA can also bring suit to protect the public, as distinguished from its own property interests or those of the persons for which it was guardian. Holding – No statutory authority; US not acting as a private party; thus US must rely on precedent to try and find standing (Debs, Brand Jewelers). Ct could use Brand Jewelers to support giving US authority to sue on grounds that the mental patient's might not be taken care of otherwise (just like poor pp wouldn't bring suit otherwise b/c no $); but ct doesn't buy into this and won’t let US sue w/o statutory authority. Rationale – This potentially requires a two step process: 1) Does the USA explicitly have such rights within the statues the govt. states in its complaint? 2) If not, does the judicially created doctrine which allows the USA to sue despite statutory authority in certain areas in which the USA has an interest? 1) The USA points to no statute which explicitly authorizes the bringing of this suit. Closest it comes is the Developmentally Disabled Assistance and Bill of Rights Act. But that act provides grants to states if they have in place a system to protect the patients. Once the grant is given, it is up to the state to watch over the patients, not the federal government. Thus, the act does not give the USA a right to institute a suit. 2) In cases where the USA has no statutory right to sue, it must fall back on its rights as a “citizen,” that is, on its property, contract rights, as well as guardian of American Indians. The U.S. has a contract of sorts with the state of MD and could conceivably sue against that contract. However, it chose not to. This also does not seem to meet the property right requirement of the common law. The American Indian issue, of course, is out of the picture. This leaves us with the public interest at large issue. On this score, the requirement is two-fold, as per Debs: 1) The wrong must be within constitutional grant of power to federal government. This is a civil rights case. In four civil rights cases cited by the court, the holdings were that the

government lacks nonstatutory authority to sue. There is no factor of interstate commerce here. 2) Expansive effect (national emergency). More problems proving this. As bad as poor treatment of these people is, such treatment doesn’t create a national emergency. The court talked about Brand, which expanded Debs. But, the court felt that to follow Debs would mean that we would be violating the separation of horizontal powers as the Executive branch would be making laws, in violation of our Constitution. The court was not willing to make that leap and thus found for the ∆. Lawrence – Ct args: -to protect separation of powers (won’t give exec power where Congress declined to do so) -allowing suit could upset fed/state relations (if fed gvt able to bring suit, BIG power against regular pp, thus a lot at stake) Concerns of US suing: -presumed powersbig power against little pp -resources -expertise -sues on behalf of all (like class action), but its the leg job to determine the interests of "all"…that's why US needs statutory authority here! What happens if gov’t can’t sue in these cases? Solomon & Brand Jewelries: class action is a possible soln, but these s have no $ Debs: railroads can sue union. Court’s other concern in Solomon: If gov’t sues: 1) presumed prestige and disinterested interest in justice 2) has more resources that potential s in the three cases 3) expertise more efficient 4) class action more efficient than individual suit, and gov’t is largest possible class action! Debs Commerce Clause positive grant of power Article I

Brand Due Process (negative power)..how back in? §5 of 14 amend. §5 would allow the fed to operate here, so we will allow it. (used state courts)

Public interest

National strike

Issues of national import (How Frankel deal with fact that only a “few” are actually affected?) Public not directly, but if a harm is constitutionally driven, that satisfies public interest. Collapses two prongs...major extension of Debs.

Other options

Army

§1983 Fraud (but in real world, amount would be small, so no attorney would probably take this)

Fed authority

Debs - ambit of fed authority & public interest Brand - expanded other than commerce clause (SS 5, 14) and how big (how many people) and what is nature (public v. private). Since Frankel says due process issue, govt can sue on behalf of private individuals. Solomon - not down that road due to separation of powers.

Govt. v. private party 1) Prestige and power - Why better for govt. than private party sue? Prestige and power govt. brings to bear in a lawsuit. Why is this? A presumed neutrality that the govt. brings to a case. Private party has interest for winning, but govt. has interest that “equity” prevails, what’s best for the country. This gives govt. a substantial leg up v. a private party, who is arguing simply for its own private interest. 2) Resources - Also, sheer resources. 1) number of attorneys, etc. 2) govt. not have to do same kind of bottom line analysis that a private party has to do. (not interest of the private lawyer to bring a suit for 1/3 of a small amount; whereas the govt. can do this as a matter of public policy/interest). 3) Expertise - Difference of expertise. (Tax cases, environmental cases) Govt. has a lot of expertise and experience on this. False positive issue - since govt. likely to win, once govt. in suit, makes more sense for party to settle than to go through. (If believe that govt. always true, always on the good side, then have a big problem of false positives). This assumes govt. is on the side of the plaintiffs.

III.

Final rule on govt. as a P – When government can sue: How government can sue when there is no statute: when it is a direct party in 1) property 2) contract 3) guardian of Native Americans and also in cases of 4) national emergency (not a direct party). Government can also sue when there is a well-defined statutory interest of the public at large to be protected (not the case here.) (expansion from Debs) Summary Judgment A. The Mechanics of Summary Judgment – 1. FRCP 56 – *If one party can show that there is no genuine issue of material fact in the lawsuit, and that he is entitled to judgment as a matter of law, he can win the case w/o going to trial. *Takes place at the last part of the pleadings and the beginning of trial. In deciding the motion for SJ the ct goes beyond the pleadings. Even if it appears from the pleadings that the parties are in dispute on some material issue of fact, the SJ motion may be granted if the movant can show that the disputed factual issue presented by the pleadings are illusory. *Like 12(b)(6), the NMP bears the benefit of the doubt. The matter up for SJ must be construed most favorably to the NMP! *SJ has elements of pleadings and trial: Like pleadingspaper, no testimony (but SJ decision usually not made until after discovery) no attempt to resolve factual disputes no credibility assessments (makes Liberty Lobby difficult to understand) looking to test the factual sufficiency of case (are there sufficient facts in dispute to require a trial?…are there sufficient facts NOT in dispute to render judgment as a matter of law?) Like trialeach side marshals ACTUAL evidence (not just allegations) to support allegation made in pleadingsPROOF, but never actually have to prove anything! powerful (can be fatal); permits ∆ from having to go to trial 12(b)(6)-----------------------------------------------------------------------------------------56 -only allegations DISCOVERY! -proof Issues of SJ: 1)What is the b. allocation at the SJ stage? 2)Who has to do what to get SJ or beat SJ? 3)What are the implications of the b.s?

4)If you carry the b., do you win or does b. shift to the other side? The movant can show that there is no genuine issue of material fact by: 1)affidavitsthese affidavits must recite only matters as to which the affiant has personal knowledge must state only matters which would be admissible at trial must show affirmatively that the affiant is competent to testify to the matters stated therein 2)discovery materialsdepositions, interrogatory answers, etc….no mater which side they were obtained from Affirmative SJ∆ can show something affirmatively against Π's case thus that there is no genuine issue of material fact. (ex: if Π's case is claiming there was a conspiracy, ∆'d affirmative SJ motion would be that ∆ can show that there was no conspiracy) ∆ saying he can actually win at trial. ∆ taking on a b. he would never have at trial (∆ would never have to show he will win). (If Π says X, ∆ says Y not X). ∆ entitled to SJ unless Π earns the right to go to trial! Movant (usually D) says “I can win at trial!” Defensive SJ∆ saying that Π can't prove her case (ex: w/ the evidence in the record, Π can't show that there was a conspiracy). ∆ saying that Π wil never fulfill Π's b. at trial. (If Π says X, ∆ says not X). Π entitled to go to trial unless ∆ earns the right to get a SJ! Movant (usually D) says “You can’t win at trial!”

Affirmative Summary Judgment (“I will win!”)

Defensive Summary Judgment (“You can’t win!”)

Movant has trial burden (Π Π) (Π Π brings SJ mtn) Br & Rhen agree Π - show PF case ∆ - produce show genuine issue exists

Respondent has trial burden (Π Π) (∆ ∆ brings SJ motion) Br & Rhen agree ∆ - show PF case that will win (enough to sustain jury verdict has burden of persuasion) Π - Must put on PF case that would get to jury

agree - this would never happen (Because the Π always has to say “I will win” not “You can’t win” cuz Π has burden at trial.)

don’t agree (all action here) Rehn - 56=50(a) ∆ - “points out” Π can’t win Π - shows PF case Brennan 56<50(a) ∆ - must affirmatively show Π won’t be able to win Π - shows PF case

False +/-’s - Brennan more concerned about False -s, let the trial sort out the facts, and if there isn’t enough evidence to go to jury, use directed verdict. Rehnquist is more concerned about False +s, goal is settlement, let’s keep costs down. SJ may be for Π or ∆, but we talked about ∆ b/c Π's SJ or both parties simultaneous SJ b/c they are straightforward: -Π's SJsufficient facts NOT in dispute to allow Π to win at trial; must offer supporting evidence that would meet the directed verdict standard (reasonable jury could only find for Π) not controverted by evidence of ∆ in opposition to SJ. Π as movant has same b. as trial.

-simultaneous Π + ∆ SJ motionsparties stipulate to the facts and what the legal ramifications determined Big issue: what happens when ∆, the party who won't have the b. of persuasion at trial, moves for SJ? What is the b. allocation at SJ! ∆ as MP: 1) show that the Π/NMP will be unable to prove a critical fact at trial by pointing out that there is no evidence. Π/NMP has to show that there is such evidence to avoid SJ. (This is defensive SJ as required by Celotex maj -most expanded view)…easy for ∆/MP OR 2) can offer evidence that negates an issue as to which the Π/NMP has the b. of proving at trial. If Π/NMP offers evidence that contradicts, then NO SJ. (This is affirmative SJ as required by Adickes) Restricted View of Summary Judgment (from Adickes) held: moving party has burden of production at SJ stage to show that there is no genuine issue of material fact. the court must view the motion in the light most favorable to the nonmoving party. = s p.f. case - enough to get to jury/ s verdict (see aff/def) moving party must address facts that could be used by jury to infer circumstances favorable to the non-moving party. (i.e. policeman - conspiracy) - must foreclose possibility of conspiracy = large burden on s nonmoving party must respond to moving party’s issues (not others) Most Expanded View of Adickes - “plain language” of 56(c) (Celotex) Although the burden shifts to the defendant when defendant moves for summary judgment, plaintiff still has final burden. Defendant does not have to make an affirmative evidentiary showing - can rely solely on pleadings and discovery. only has to show no issue of fact, not negate s claim. does not have to show enough for a s verdict. reas: get rid of factually unsupported claims Defendant has a burden of production - “pointing out” holes in the plaintiff’s case. summary judgment more favored - only defensive summary judgment now. Dis (Brennan): Restricted View claims to be dissenting on facts only moving party has burden of persuasion. - “must affirmatively show” both affirmative and defensive summary judgment allowed B. Application and Interpretation of Summary Judgment – 1. Adickes v. S.H. Kress & Co. (HTF 1031-38) (Harlan – USSC 1970) Facts – White Adickes took black kids into restaurant. Restaurant wouldn’t serve Adickes (did serve blacks). Adickes and kids left restaurant. Policeman who had allegedly been in restaurant arrested her for vagrancy. ∆ argues that since Π did not profer evidence supporting her claim after ∆ filed the 56 motion, that ∆ s/b granted summary judgment as a matter of law. Π argues that ∆ did not meet its initial burden as it did not, in its motion, show that no genuine facts of a material nature exist. Π says ∆ failed to dispute the allegation to the effect that there was a policeman in the store, which then would allow a jury to infer that, possibly, there was a conspiracy. ∆ says that Π not have direct knowledge of conspiracy, but uses circumstantial evidence. Issue- Did the movant meet its burden of showing an absence of a genuine issue concerning any material fact? Rule – (1) The moving party has the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party. (2) Rule 56(e) places upon the NMP the burden of producing evidence of conspiracy he alleged only after movant conclusively showed that the facts upon which the NMP relied to support his allegation were not

susceptible of the interpretation which the NMP sought to give them. (the movant did not meet this initial burden in this case). (The above quote from First National Bank of Ariz. v. Cities Service). Holding – As Kress did not meet its burden of establishing the absence of a policeman in the store, petitioner here was not required to come forward with suitable opposing affadavits. Rationale – Two elements are necessary for recovery under a §1983 claim. (1) Π must prove that the ∆ has deprived him of a right secured by the Constitution and laws of the USA. (2) Π must show that the ∆ deprived him of this constitutional right under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory. Though this suit is against a private person, the Π can prevail if she can show that the police were involved in the conspiracy. A private person can also be liable under §1983 if working in concert with a state official. If a policeman were present, it would be open to a jury, in light of sequences that followed, to infer from the circumstance that the policeman and a Kress employee had a “meeting of the minds” and thus reached an understanding that petitioner should be refused service. On summary judgment the inferences drawn from the underlying facts contained in the moving party’s materials must be viewed in the light most favorable to the party opposing the motion. Lawrence - ∆/MP produced deposition store manager, affidavit of certain cops and deposition of P (saying no personal knowledge that cop in store). P relied on contrary allegations from her complaint and unsworn testimony from employee in store. ∆ arg: ∆ has not foreclosed possibility of cop in store, but ∆ has made out "PFC" thus b. should switch to Π to show genuine issue of material fact; and since Π can't, ∆ should get SJ. Π arg: ∆ has the b. of an Affirmative SJ = ∆ must foreclose the possibility of cop in store. Supreme Court decides: ∆/MP must show that there is no genuine issue of material fact! Affirmative SJ: ∆ has to prove no cop in store. ∆ didn't meet this b. (didn't get affidavit from cop saying that he wasn't there). Defensive SJ: The circumstances of this case (constitutional value against granting SJ) raise an inference that Π was discriminated against; thus the b. switches to ∆ and since ∆ didn't foreclose the possibility to his inferential case, NO SJ! (Thus, ∆ can’t win on defensive here) Ultimately, regardless of affirmative or defensive SJ, b/c ∆/MP did not meet his initial b. of establishing the absence of the police in the store (even though it would be Π b. to prove conspiracy at trial), Π/NMP was NOT required to do more than rely on contrary allegations in Π's complaint. Had ∆ met this b., Π would have to go beyond pleadings (court notes: Π should have gotten affidavits anyway b/c perilous not to) Therefore, The possibility of cop in store is enough to raise an inference of conspiracy at trial. W/ this inference, Π could arg to jury either successfully or unsuccessfully. If Π doesn't prove conspiracy at trial, ∆ will get R50 (DV), but on the same evidence ∆ will not get a R56 (so here 56≠ ≠ 50) (i.e., burden of 56 is less on Π than is 50). 2. Celotex v. Catrett (HTF 1038-1048) (USSC 1986 – Rehnquist (Brennan dissent)) Facts – Π claims asbestos from 15 corps proximately caused decedent husband’s cancer. ∆ filed for SJ and prevailed at D.C. (no showing that the Π was exposed to the ∆‘s product). C.of A. reversed (∆‘s failure to support its motion with evidence tending to negate such exposure precluded S.J. in its favor. “made no effort to adduce any evidence, in the form of affidavits or otherwise, to support its motion, simply pointed to Π and said can’t win (defensive)”). ∆ claims Π failed to produce evidence that ∆ product was proximate cause of injuries alleged w/in jurisdictional limits of the [District] Court. Π produced three documents that claimed “genuine material factual dispute.” (transcript of deposition of decedent, letter from an official of decedent’s former employers whom Π planned to call to stand, letter from insurance co. to Π attorney, all tending to establish

decedent had been exposed to ∆‘s asbestos.) ∆ argued these are inadmissible hearsay and thus can’t be considered in opp. to S.J.m. Π argues 56(e) places on NMP burden of rebuttal only in response to motion for S.J. “made and supported as provided in this rule.” Since ∆ didn’t “support” its motion with affidavits, S.J. not appropriate. Issue- Can a moving party prevail in a motion for S.J. by stating that the nonmoving party can not meet its burden of proof at trial from the evidentiary material presented to date, or does the moving party have to adduce affirmative evidence of its own? Rule – (1) Where the NMP will bear the burden of proof at trial on a dispositive issue, a SJ motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories and admissions on file. If so made, the NMP must go beyond the pleadings and by her own evidentiary materials (see 56(c)) show that a genuine issue for trial exists. (2) (If the MP is the ∆) If the burden of persuasion at trial would be on the NMP, the MP may satisfy its requirements under 56 in one of two ways. First, the MP may submit affirmative evidence that negates an essential element of the NMP’s claim. Second, the MP may demonstrate to the Court that the NMP’s evidence is insufficient to establish an essential element of the NMP’s claim. (3) MP always has the burden of persuasion. Procedurally, 1) - MP burden of production that no genuine issues exist, a PFC. (this is where Kress lost in Addickes) 2) - NMP burden of production that one does exist. If NMP can’t make out a case, it loses (Anderson v. Liberty). Holding – The burden on the MP may be discharged by “showing” that there is an absence of evidence to support the NMP’s case, as Celotex did in this case. Once discharged, the NMP must adduce evidence other than pleadings to back up its assertion that a genuine issue of material fact exists, which Π did not accomplish. The ∆ can prevail by defensive SJ (can point out); doesn’t have to use affirmative SJ. Rationale – ∆/MP does not have to negate Π/NMP claim (negate = affirmative). ∆/MP bears the initial b. of production of identifying (pointing out) the portions of Π/NMP pleadings, affidavits, depos, etc., which demonstrate that there is an absence of a genuine issue of material fact, and those facts are Π/NMP b. to persuade at trial. This b. may be discharged by ∆/MP relying only on pleadings!!! (∆/MP doesn't need supporting affidavits, etc.) But Π/NMP must go beyond the pleadings and make a sufficient showing of specific facts showing that there is a genuine issue of material fact for trial. Π/NMP cannot rest on the pleadings (like∆ ∆/MP can)! *So, when the Π/NMP bears the b. of persuading an issue at trial, ∆/MP can sustain a SJ by pointing out that Π/NMP won't be able to prove that issue at trial based on the evidence in the record alone. And, if Π/NMP doesn't come forward w/ evidence beyond the pleadings, or if Π/NMP evidence is lacking, ∆/MP will get SJ! Dissent (Brennan)(restricted view) - If MP will have the b. of persuasion at trial, then must support motion for SJ w/ evidence (beyond pleadings). If NMP will have the b. of persuasion at trial, then MP must have affirmative evidence that negates NMP's claim or may show that NMP's evidence is insufficient to establish its claimto do this, MP must do more than maj version of POINTING OUT (pointing out is no b. at all)…MP must attack all the record -affidavits, etc.- of NMP to satisfy MP's b. of production…MP can't just make a conclusory statement! As opposed to Rehnquist, says that defendant must use affirmative SJ. (he thus “restricts” use of SJ, as opposed to Rehnquist) Deny SJ b/c Π has enough to survive SJ even though Π doesn't have enough yet to survive R50. (He says 56≠ ≠50, as opposed to majority, which says 56=50). Under Brennan, Burdens for SJ: MV: b. of production -if MP will have b. of persuasion at trial, MP must make affirmative showing by producing evidence that would give MP DV (R.50) if not controverted at trial; if done, b. of production shifts -NMP b. of production: produce evidence showing genuine issue of material fact

-if NMP has b. of persuasion at trial: 1) MP proffer affirmative evidence negating essential element of NMP's claim OR 2) MP demonstrate to ct that NMP's evidence is insufficient to establish essential element of NMP's claimbut MP must affirmatively show the absence of evidence in the record by reviewing for the ct the admissions, interrogations, etc in the record; Can't just POINT OUT! MUST AFFIRMATIVELY SHOW!; if done, b. of production shifts to NMP -NMP may call ct's attention to other evidence in record that MP didn't show that supports a genuine issue of material fact. Lawrence – Comparing the restricted view with the most expanded view: (Both think they followed Adickes). Expanded view: Celotex Maj (Rehnquist) - easiest to get SJ -∆/MP: -Defensive SJ only (b/c b. so light that you wouldn't go for Affirmative) -b. to POINT OUT that no genuine issue of material fact exists -doesn't have to negate Π/NMP's claim (no Affirmative needed) -may be done SOLELY on the pleadings! -if ∆/MP carries this V-LIGHT b., then b. switches to Π/NMP -Π/NMP: -PFC; has to reveal almost all of case (thus even if no SJ, will be more vulnerable) -b. to GO BEYOND THE PLEADINGS and make a sufficient showing of the essential fact that Π/NMP has b. to prove at trial -Π/NMP must show beyond the pleadings that there is a genuine issue of material fact -V-HEAVY b. on Π/NMP -If Π/NMP carries this b. -easier to get SJ -leads to fewer trials and concern that Πs who should have won, lose -56=50 Restricted view: Celotex Dissent (Brennan) - harder to get SJ -∆/MP has 2 options: <"PFC" 1)Affirmative SJ: ∆/MP submits evidence beyond pleadings that negates an essential element of Π/NMP's claim 2)Defensive SJ: ∆/MP shows that Π/NMP evidence is lacking by attacking record and reviewing for the ct the entire record (more than conclusory statement of pointing out) -b. is higher -If ∆/MP meets its b., then shift to Π/NMP: Π/NMP: -
-Info in possession of MP (D) -Info equally hard to get -quality/credibility of info (cop might -quality/credibility (less chance of lies) be lying) -Evidence (stronger reason why hard -Evidence (not as hard to get) to get than Celotex (kids are not likely to talk, especially before trial) -MP
b. b/c a lot is at stake w/ a -MPb. b/c mere tort claim w/ a civil rts claim (has to affirm show no cop in store) Thus, restricted view makes it harder to get SJ as can’t just point out. Under either, could use affirmative or defensive but wouldn’t under expanded as burden is so light can get away with defensive. Restricted “restricts” the granting of SJ motions, thus more cases go to trial than the latter. Restricted 56<50, expanded 56-50. Restricted more worried about false negatives; expanded, false positives. Anderson v. Liberty Lobby (M. 148-162) Facts – Π, public figure, sues ∆, newspaper, in a libel suit. Thus Π has the b. to show that in publishing the defamatory statement, the ∆ acted in actual malice. Π must prove this by clear and convincing evidence. After discovery, ∆/MP moved for SJ on grounds that Π can't satisfy c + c evidence of ∆'s malice. ∆/MP proffered affidavit of writer to support motion saying story is truthful and no malice. Issue is whether Issue- Does the evidentiary req of c + c that applies to proof of malice in a public figure case apply at SJ stage? Rule – (1) The inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. (56=50 or expanded view, expanded view in terms of allowing motions for SJ to be granted) Holding – In following Celotex mst expanded (maj), in a case where the NYT v. Sullivan c + c evidentiary standard applies, that c + c standard must be used in ruling on SJ motion b/c 56 = 50. So, all ∆/MP has to do is point out that there is no genuine issue of material fact based solely on the pleadings; and if the Π/NMP doesn't come forward w/ evidence beyond the pleadings of a genuine issue of material fact, then SJ granted. Rationale – at the summary judgment stage the judge’s function is not to weigh the evidence and determine the truth of the matter himself, but to determine whether there is a genuine issue for trial. “Issue for trial” is defined as sufficent evidence favoring the NMP (usually the Π) for a jury to return a verdict for that party. The inquiry implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. Thus, in a run of the mill civil action, the judge’s inquiry asks if a reasonable jury could find by a preponderance of the evidence if the Π can prevail. In this case, though, we don’t have a run of the mill case, but one in which to win at trial, the burden of proof is clear and convincing. Here, NMP (P) not show enough to allow for a judgment under the c + c standard. Dissent (Brennan) – If Π made out a prima facie case, then the ∆ should lose regardless of the burden of proof the Π must meet. Whether the evidence is “clear and convincing” or “preponderance” is for the trier of fact to determine. Credibility issues are for the jury. Afraid decision will erode role of jury. Not supposed to weigh evidence. Dissent (Rehnquist) - Also says, “as long as credibility is the exclusive province of the jury, some pretty ridiculous claims could go to jury.” Since credibility is a jury question, then what is difference between varying burdens of proof. Also says there is no analog to the criminal context. (Crim to trial is not reasonable doubt, but probable cause). Thus criminal case, pre-trial and trial burdens are different. This changes 56 from purely a matter of law process to also one of fact. Will cause courts to be sporadic in application cuz creates a new standard w/o hinting as to how to accomplish this. Lawrence - Dissent (Brennan and Rehnquist): c + c standard means you are making a credibility assessment, and you are not supposed to do that at the SJ stage. Thus, apply

preponderance (of law) at SJ stage, and c + c (? Of fact) at the jury stage. At summary judgment we assume true. Credibility for jury. Dissent says that if we need to know clear & convincing v. preponderance at summary judgment, then every summary judgment motion goes to jury. Will have plenty of cases where Π will not survive S.J. (false negatives). The libel Π is going into the constitutional rights of the ∆. Thus we are willing to tolerate false negatives. False positives are not just about Πs who should win, winning, but also about other things, such as first amendment. 56 is promise for proof; 50(a) is about proof. IV. Remedies A. Traditional Remedies 1. Introduction – 2. Plenary or “Complete” Judicial Remedies – a. Damages – 1. Note – DAMAGES… What do you get when you win? Damages Monetary compensation that the laws award to one who has been injured buy the action of another. Actual DamagesLosses that can be readily proven to have been sustained, and for which the injured party should be compensated for as a matter of right. Nominal DamagesA trivial sum awarded as recognition that a legal injury was sustained, though slight. Nominal damages will be awarded where no recoverable loss can be established. Non-punitive. (Carey v. Piphus) Compensatory DamagesThe usual form of $ damages which attempt to make the Π whole from the damage Π has suffered as the result of ∆'s wrongdoing. Punitive DamagesCompensation greater than the actual damages that is a form of punishment to the wrongdoer and reparation to the injured. Awarded in rare instances of malicious and willful misconduct. Purpose of these damages is to deter. Wrongdoer must have intended to commit the harm. Declaratory JudgmentA judgment of the ct to establish the rights of the parties or express the opinion of the ct on a question of law, w/o ordering anything to be done or granting a remedy (NO $). 2. Carey v. Piphus – (M. 163-172) Facts – Π, student, suspended from school w/o a hearing. Π sued ∆, school, under th §1983 for a violation of his 14th Amend due process rights (no hearing) (14 DP right; COL school = state) Seeking actual and punitive (must be intentional; malicious) damages. Issue – In an action under §1983 for deprivation of DP, must a P prove that he actually was injured by the deprivation before he may recover substantial “nonpunitive” damages? Rule – The compensation principle – Damages are available under §1983 for actions found to have been violative of constitutional rights and to have caused compensable injuries. Holding – Π wins!! The basic purpose of §1983 damage award is to compensate persons for injuries caused by the deprivation of Cont rt. Procedural due process is meant to protect pp from mistaken or unjustified deprivation of life, liberty or property. If ∆ shows that the suspension was JUSTIFIABLE, Π can't recover damages for the suspension b/c it wasn't an injury! Π can recover, however, for the violation of Π's Const rt, regardless of whether the suspension was justifiable or not. Rationale – See Holding above. Lawrence – Purpose of $1 damages by courts is to give notice to future schools that this is wrong. Purposeful misconduct (compared to negligent conduct) is intent to do wrong (as opposed to intent to do something cool that has bad side effects). After Carey v. Piphus, then school boards had notice. If they would have still not given hearing, it would have been willful. But, what if future high school principals don’t know Carey v. Piphus? Probably still willful (should have known....which sounds like

negligence). Punitive for intentional conduct. Compensatory for negligent conduct. *So, Π gets: -compensatory damages: nominal damages ($1) for violation of due process rts; here (non-outcome oriented values -strong symbolic values), Π gets no damages from injury cause by deprivation of const rt b/c the suspension was justifiable, thus Π sustained no injury; under §1983, Π would get damages for an injury sustained by the deprivation of that const rt if Π prove the injurysuch as it the suspension was wrongful, Π's injury would have been missing school and Π could have been compensated for the days lost (Π doesn't get benefit of presumption of an injury when const rt violated; Π must prove that injury) -no punitive damages b/c ∆ had no bad intent. -declaratory judgment that Π's const rts were violated (this lays the groundwork for future cases b/c if ∆ does this again, it will be intentional and there will be punitive damages) Was this case worth the $1?: depends on the non-monetary value of winning to Π! 3. BMW v. Gore – (M. 173 – 181) Facts – Π bought a new BMW and ∆ did not tell him that it had been repainted, a procedure ok in other states. The repaint lessened the value of the car at purchase by $4,000. Π sued ∆ for failing to disclose that the car had been repainted, and wants big $ in compensatory and punitive damages. Lower ct awarded Π $2mil. So ? on appeal is whether $2mil exceeds the const limit for punitive damages thereby violating ∆'s due process (due process is about fair notice to ∆ that can be held liable for such and amount). Issue – Does the $2 million punitive award for the purchaser of a car exceed the constitutional limit? Rule – (1) Punitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition. (2) Only when an award can fairly be categorized as “grossly excessive” in relation to the State’s interests to punish and deter future negative conduct does it enter the zone of th arbitrariness that violated the DPC of 14 amendment. (3) Exemplary damages imposed on a D should reflect the “enormity” of his offense. (4) 3 factor test! Holding – B/c ∆ had not received fair notice of this extent of liability (state statues don’t exceed $2,000, and ∆'s conduct wouldn't violate many states), ∆ should not have to pay such an excessive damage award (500x the actual damage to Π). Thus, the grossly excessive $2mil exceeds the const due process limits for punitive damages. Also, punitive $ can't deter if ∆ had no notice of it! Rationale – Court weighs 3 factors to determine whether the ∆ had fair notice (and thus due process), and to determine whether the punitive damage award is grossly excessive, and thus unconstitutional: 1) Degree of Reprehensibilitypunitive $ can't be out of proportion w/ the degree of reprehensibility of ∆'s conduct. If done intentionally,
reprehensibility. Here, it was only economic harm! 2) Ratiopunitive $ should have a reasonable relationship to the actual harm inflicted on Π. Here, Π only injured by $4,000 and ct awarded $2mil! 3) Sanctions for Comparable MisconductComparing the punitive award w/ the civil or criminal penalties that could be imposed for comparable misconduct. Here, ∆ would have been liable under Alabama statute for up to $2,000, whereas the punitive award was $2mil (NO NOTICE of this excessive liability!) Since the 3 factors weigh in favor of ∆, the punitive award was grossly excessive and in violation of ∆ const due process rights! Lawrence - On remand, Alabama Supreme Court reduced to $50,000. Thought: The 14th amendment right that BMW was worried about was the $4 million damage, which

BMW never had a right to have “due process” on. (Say this as they did have due process on the substantiveaction). b. Injunctions – Injunctions v. Damages: No Bright Line Distinction; Damages v. Inj is highly contextually based! 1)Nature of Relief: -Damages$ (but, inj to pay $) -Injconduct (but, often costs $) 2)Timing of Relief: -Damagesafter offending conduct (but, con get $ for a continuing injury) -Injb/f or during offending conduct (but, can get inj after offending conduct too) 3)Nature of Harm: -Damagescompensable (legal construct) -Injirreparable (no adequate remedy at law) Declaratory Judgment: -pure injits w/in the exclusive reach of the cts to declare the rights of the parties a ct order that directs certain action; a violation of it is contempt ($/jail) ex: -quiet title -interpleader: lets ct distribute damages , declare rts of what belongs to whom -R57sounds like damages: no req to show irreparable harm or inadequate remedy at law and can have a jury trial (as opposed to pure equitable relief) -only law, not facts, can be declared (distinctions b/t facts and law not always clear) -need actual case and controversy (not one not yet ripe for consideration) -cts do NOT issue Advisory Opinions, but will declare legal issues to actual cases in dispute! -There are mandatory (you have to get a permit)and prohibitory (stop until you get a permit) injunctions. A c&d order is an example of the latter. 1. FRCP 65(d) – (FRCP 116) – Every order granting an injunction and restraining order shall: 1) Set forth reasons therefor 2) Be specific in its terms 3) Describe in reasonable detail the act or acts sought to be restrained 4) Be binding only to parties to the action, officers, agents, employees, etc. R. 65(d) - Form and Scope of Injunction or Restraining Order reasons for issuance; specific terms; detailed description of acts to be restrained; binding only upon e’yees, etc. and persons in active concert who receive personal notice Judge, not jury, for equitable relief types: 1) mandatory (do this) (have to get permit). Easier to get 2) prohibitory (harder to get & enforce) (stop until you get a permit) 3) declaratory relief: can only declare law, not facts. Like both injunction (court order) and damages [see r. 57, 28 U.S.C. § 2201] (no adequate remedy at law, can have jury trial) appropriate in interpleader actions 4) structural 2. History – nada 3. Weinberger v. Romero-Barcelo – (HTF 82-89) Facts – Π suing to enjoin ∆ Navy from weapons training and to get permit b/c ∆ has been dropping bombs in the water in violation of the FWPCA w/o permit from the EPA. D.C. granted mandatory inj (∆ to go get permit), but did not grant a prohibitory inj (cease & desist bombings until ∆ gets permit) b/c stopping the bombing may have public consequences (lack of military training). App. Ct vacated D.C. order and granted both mandatory and prohibitory inj b/c D.C. doesn't have discretion not to issue prohibitory inj (statutory obligation).

Issue – If the Federal Water Pollution Control Act (FWPCA) requires a D.C. to enjoin immediately all pollution that doesn’t comply with the Act’s permit requirements or if the D.C. retains discertion to order other relief to achieve compliance. Rule – (1)Unless Congress specifically commands a particular form of relief, the question of remedy remains subject to a court’s equitable discretion. (2) Because Congress not foreclose discretion, the proper standard for appellate review is if D.C. abused its discertion in denying the requested relief. Holding – Dist Ct had discretion, but remand to App Ct to determine if Dist Ct abused its discretion (so App ct might come out same way). Best remedy for Π here is both mandatory and prohibitory injs. Damages would be too speculative, and would not adequately compensate Π. Getting an inj is never a matter of rt for the Π. Standard of review: Abuse of Discretion (always w/ inj??)! Injunctions are equitable remedies and should only be given if : Qualifications for equitable relief: 1)No Adequate Remedy At Law 2)Irreparable Harm (only req for prelim inj ???) 3)Speculative Damages (hard to prove) 4)Balance of Hardships (since both public, Π v. ∆ interests) 5)Public Interest (weighed even when public not a party) 6)Statute Requires Injunction Rationale – An injunction allowable where intervention of court of equity is essential in order to effectually protect property rights against injuries otherwise irremeidable. In exercising discertion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Congress has the power to foreclose the exercise of discertion possessed by courts of equity. If Congress is silent on foreclosure, it did not intend to obviate courts of equity’s normal discertionary rights. Here, no such mandate in FWCPA, thus courts have discertion. Lawrence - *How to decide which kind of inj to grant: mandatory or prohibitory or both?: -use discretion -set remedy to "fit" problem: use least harsh inj that will get ∆ to comply so as to minimize risk of false outcomes. Remand is about discretion (how to make the inj "fit"): -Maj gives Dist Ct maximum discretion as a default position b/c statute is silent -Dissent says statute "channels" Dist Ct's discretion in favor of granting prohibitory inj 4. Note 3. Provisional Remedies: Prelim Injunctions and TROs – Provisional remedyA remedy provided pursuant to a proceeding incidental to and in connection w/ a regular action, invoked while the primary action is pending, to assure that the claimant's rights will be preserved or that he will not suffer irreparable injury. Its connection w/ the primary action is termed collateral. Ex: TRO, preliminary inj, attachment. Preliminary Inj: sought b/f trial; temporary Permnt Inj: sought at trial; get when win -no adequate remedy at law -no adequate remedy at law -irreparable harm (immediacy of harm) -irrparable harm(continual/long run hrm) -likelihood of success on the merits (L/S) -SUCCESS on the merits -public interest -public interest -balancing of hardships (Π + ∆) -need to maintain status quo -Easiest factor for prelim is L/S b/c -toughest factor is success on the merits you don't actually have to win on the b/c all other factors fold into P winning, merits, just have to show its likely you'll win P must win to get a perm injunction. Despite last points above, c/b harder to get a preliminary inj that a permanent inj: -You are asking a judge to decide to give an inj when he doesn't know the "right result" yet; this is b/c only need to have L/S to get a prelim, instead of the actual WIN to get a perm.

-One of the easiest facts for a perm may be the hardest fact for the prelim. For perm, you must arg that there is a continual violation. But, for prelim, if the violation was continual then you could have brought an action a long time ago. Thus, the harm must not be so immediate as to require a preliminary injunction. Obviously since it’s waited this long, it can wait until after trial to see if Π wins and then grant a perm inj! Ex: Could Romero-Barceloharm v-diff b/t prelim and perm -harm suffered and continuously suffering: bombing in water for a long time -prelim: immediacy of harmthis fact is hurts chances for a prelim b/c since its been going on for so long, must not be so immediate as to require a prelim; wait until after trial and get perm. -perm: harm in the long runthis fact helps chances for perm b/c shows continuous injury, but also hurts getting perm b/c since its been going so long a perm will only prevent a marginal
in harm, and if the harm is so bad why didn't you get a prelim. Attorney advice: Motion for prelim injunction immediately in suit b/c the longer you wait, the less immediate your injury appears. a. FRCP 65(a)-(d) – (FRCP 115-116) “Injunctions” a) Prelim; b) TROs; c) security; d)
. th b. Lawson Products v. Avnet – (HTF 112-122) 7 Circuit Facts – Π motioned for a prelim inj to against ∆ competitor from luring sales people and customers away in a tortious manner, and from using the confidential info. Avnet says no prelim b/c can quantify the harm, thus there is an adequate remedy at law. Dist Ct denied prelim. Issue – Rule – Holding – App Ct affirmed. Goal in injunction is to fit remedy to get a FAIR result, thus have to take public interest into account. Injunction have much greater potential of hurting the public than damages do. -there was an adequate remedy at law (damages-president came up w/ figure) - no irreparable harm that needs immediate attention (Π still conducting business normally) - unlikely that Π will have success on the merits based on the affidavits - Public Interest tipped to not granting prelim inj (ct doesn't want to get involved w/ free enterprise unless ct really has to…could have big impact on public) Rationale – See Holding. Lawrence – 7th Circuit testto get preliminary inj: 1)no adequate remedy at law 2)irreparable harm (IH needing immediate attention) 3)likelihood of success on the merits 4)balancing of hardships (b/t Π and ∆) 5)public interest 7th Circuit Formula: P(HΠ ) > (1-P)(H∆) (probability Π will)(magnitude of Π's harm) > (probability ∆ will)(magnitude of ∆'s win at trial if denied inj win at trial harm if inj grntd) -thus the more likely Π will win, the less Π's harm must be; and the less likely Π will win, the more harm Π must suffer to get prelim inj. -If harm sufficiently skewed to Π, Π would still get prelim inj even if P < (1-P)! Thus, allows lower judge to say Π has weak case, but should get prelim inj anyway b/c Π could potentially suffer great harm! -Harm to is very hard to measure as it’s irreparable! It is subjective, and doesn’t tell you what injunction should look like.

c.

nd

Buckingham Corp. v. Karp – (M 182-189) 2 Circuit Facts – ∆, former officer of Π's corp, took confidential documents from Π's offices to do business w/ Π's suppliers for a different corp. Π seeks a permanent inj and moved for a prelim inj to enjoin ∆ from doing any business w/ Π's suppliers and from divulging Π's confidential info and to return all documents. Dist Ct granted prelim inj on grounds that Π had L/S, IH and no adequate remedy at law. Issue – Rule – See rationale (two prong test) Holding – App Ct vacated the prelim inj (NO prelim inj) on grounds that the harm from ∆ soliciting Π's supplier and from ∆ taking Π's documents and confidential info is insufficient for granting a prelim inj. Rationale – To get a prelim inj, Π must establish: 1) the threat of IH in the absence of an inj; and 2) either: a) L/S (likelihood of success) b) sufficiently serious grounds for litigation and a balance of hardships tipping decidedly in Π's favor Loss of suppliers is not an ongoing injury, thus any harm from their loss is insufficient for prelim. Since an inj can't remedy a past injury (suppliers won't go back to Π), ct won't enjoin ∆ from doing business w/ them. Also, for lost profits (including lost profits stemming from loss of suppliers), damages are the appropriate remedy. So Π only gets an inj to enjoin ∆ from using the documents and to get ∆ to return them (b/c this is an ongoing harm needing immediate inj (prelim), rather than a past harm that an inj is useless for). Lawrence - preliminary injunction - show 1) irreparable harm (between now and trial), 2) either a) success on the merits OR b) balance of hardship tipping decidedly in its favor AND serious grounds for litigation 2) a) looks very similar 7th Cir’s weighing formula (indirectly addresses ’s probability of success and harm) 2) b) lower standard than a) but more than irreparable harm + 12(b)(6) or R. 56 (not a good comparison) take ’s hardships into account because can’t show likelihood of success on the merits and has a lower burden under 2) b). 7th and 2nd cir: basically the same analysis. 2nd Circuit test to get prelim inj2 ways! 1) -irreparable harm (immediacy of harm NOW) -likelihood of success on the merits 2) serious grounds -irreparable harm (immediacy) balance of hardships tipped decidedly to you *So, w/ test #1 Π can get a prelim inj w/o looking at the harm to ∆; and w/ test #2 Π can get a prelim inj w/o looking at the L/S (focuses more on fairness than correct formula, and allows broader discretion in deciding what prelim is worth to Π, etc.) *Test #2 similar to 7th Circuit FORMULA (test #2 more explicit though). *Serious Grounds -May just mean surviving 12(b)(6). -May mean diff things in diff contexts: -By nature of the caseex: civil rts: easier to show serious grounds -Context Specific method for granting prelim inj: -arg for: natural extension of granting lower judges discretion to decide what is fair -arg against: lower ct power may completely run amuck b/c this is largely

unreviewable (abuse of discretion standard) *What's the standard of review for inj? Abuse of discretion? Is that only for prelim inj b/c perm Π already won? Temporary Restraining Order (TRO)An order granted w/o notice or hearing (ex parte), demanding the preservation of the status quo until a hearing can be held to determine the propriety of the injunctive relief, temporary of permanent. A restraining order is always temporary, since it is granted pending a hearing. -Depending on state, TRO can't be longer than 7 days, and can only be extended for 7 days (then it becomes a prelim). -Unlike prelim, TRO is not repealable. B. The cost of the remedy: Attorney’s fees and court costs 1. Background to Fees and CostsAmerican Rule: -requires each party to bear its own expenses -generally, winner may recover court costs but not atty fees! (Ct costs: user costs of the judicial system; ex: filing fees) -atty fees are usually the biggest part of $ -Π weighs factors and brings a suit if: E(j) + VΠ > FeesΠ (probability of) x (amount of) + (non-$ value to Π) > Π's fees winning judgment of bringing case -non-$ values: value of participating in the system, dignity gained in seeking to vindicate a perceived violation of one's rights, etc. -+/- of American Rule: 1) -: Π risks to pay big atty fees b/c ∆ won't have to pay; thus Π who should go to ct don't 2)+: all parties have an incentive to use legal system efficiently (b/c no atty fee shift) 3) -: problem for ∆∆s who ought to win cannot do any better than be out atty fees; thus perverse incentive for some ∆s to settle even though they should have won b/c of these problems, Americans use contingency fee arrangement: -Contingency FeesAtty agrees to accept as his fee some proportion of the amount recovered in a lawsuit. And, if they don’t win the atty gets no $!!! This transfers the risk from the private litigant to the atty. Here, the atty decides whether or not to take the case by considering the expected $. -The atty weighs these factors to decide whether to take the case: [E(j)] [Contingency Fee %] + Vatty > "fees" -Vatty: non-$ value of the case to the atty -"fees": atty's opportunity cost in taking the case Modified American Rule: -American Rule modified by R11 -each side bears it's own costs unless the lawsuit was FRIVOLOUS! (R11 violation) -R11 allows the ct to shift atty fees if the client of atty does sanctionable conduct under R11 (frivolous) -So, if Π found to have brought frivolous lawsuit, Π will have to pay Π + ∆ atty fees! -Π brings case if: E(j) + VΠ > FeesΠ + (Probability suit is Frivolous) (Fees∆) Civil Rights Cases: -§1988: a prevailing Π in a civil rts case may receive atty fees from ∆; only if the complaint is deemed frivolous (R11 violation) may a prevailing ∆ receive atty fees. -If Π wins, ∆ generally pays Π's atty fees. -Big implications in cases like Carey v. Piphus; Πs win $1, but ∆ has to pay all Π's atty fees. Since the case went all the way to the US SC, that $1

went a LONG WAY in a civil rts case! (nominal damages aren't so nominal after all!) -If ∆ wins and Π did not violate R11, ∆ pay own atty fees. -If ∆ wins and Π did violate R11, Π pays ∆'s atty fees. -So, a civil rts Π will sue if: E(j) + VΠ > (%Losing)(FeesΠ) + (%Frivolous)(Fees∆) -And, a civil rts Π's atty will agree to handle the case if: (%Winning)("fees") + Vatty > (%Losing)("fees") -Thus under §1988, civil rts Πs won't be deterred from bringing suit b/c of fear of paying ∆'s atty fees (unless R11 violation). ∆s say this is unfair b/c ∆'s loss > Π's loss (but when you weigh that against civil rts, Πs win!). Here, civil rts cases will be brought that would not have been brought under the American Rule (b/c Πs had no $ to pay own atty fees). British Rule: -winner takes all!!!: the losing party must pay the winning party's atty fees! -thus, if Π wins ∆ pays Π's atty fees; and if ∆ wins Π pays ∆'s atty fees. -Π will bring a suit if: E(j) + VΠ > E(j') -E(j'): probability of losing)(feesΠ + fees∆) -advantages: -prevailing party will not be denied any $ of judgment of recovery b/c he doesn't have to pay his own atty fees (no recovery $ will have to be spent on fees). -protects ∆s who wee wrongly sued but were forced to defend themselves -disadvantages: -deter Πs who should win from bringing suit b/c of fear of losing and having to pay ∆'s atty fees on top of their own atty fee…this is even worse b/c one side has NO CONTROL over the other side's atty fees (could be big $), and there is an incentive to for the other side to drive up the atty fee costs! -this rule is good for pp w/ lots of $$ -higher stakes than the American Rule