February 3, 1999

Denial –

Issues are created when the defendant denies the allegations of a complaint

Effective denial

Ineffective denial can amount to conclusion by court that all allegations are deemed admitted.

Lawsuit for negligence

• defendant denies all allegations
• at trial after P has put forth his case (P has original burden of production – producing evidence)
• D then seeks to offer evidence of the P’s contributory negligence
• How would you respond to an offer of proof that the P was contributorily negligence?
• This would go to prove a fact not at issue – this was not raised in the original pleadings
• This is called "new matter" – an issue not raised by the pleadings

Something must be pleaded as an affirmative defense if it operates to destroy the cause of action.

Confession – if it destroys the P’s cause of action it need not be specially be pleaded

Avoidance - If it goes to avoid P’s cause of action it will need to be pleaded as an affirmative defense.

Burden of persuasion

Burden of …

NO burden of proof

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February 5, 1999

Rule 11

Eastway construction Corp. V. City of NY

Plaintiff was excluded from contracts in NY and was put out of businues sbecause of this. (city claimed bills and defaults)

Factors to consider in when determining if affirmative defense

1. Likelihood of behavior
2. Easier access to the information that would allow court to reach conclusion

Burden of proof is upon party that wants to upset the likelihood (prove that it is not so)

Burden on defendant because they have the easiest way of giving the info to the court

THERFORE it is an affirmative defense

Test of what we know so far:

Plot of land with several acres of timber, a river runs down one side of the property which separates the land form the neighbor. A crew enters land, strips the land of timber, and takes it on a barge down the river.

A v. B.

A says he is the owner, and B did not enter land and that B is guilty of trespass and conversion of the timber

Plaintiff has initial burden of production and proof

Defendant says that he is owner by doctrine of adverse possession – this is okay to do because it is a denial of the ownership factor (issue)

Allegations of breach of contract: I lent him money and he has failed to pay

Defendant denies it all. Defendant’s position would then destroy the P’s cause of action. He says it is a joint business venture.

• start with pleadings (allegations of P and denials of the D)
• alleged – contract for a loan, this has been denied
• if it has been denied, then isn’t the nature of the transaction at issue?? Seems to be yes, there is an issue about whether or not this denial was new matter or not.
• Whole thing has to do with due process and fairness
• This leaves a loop whole sort of for D to bring up a defense that the P had not thought of. But discovery process mostly gets rid of this loophole.

If the defendant offers the defense to contradict a plaintiff’s allegation then it is NOT new matter.

KNOW AFFIRMATIVE DEFENSES

• need to ask does it avoid or dsetroy the cause of action
• if it destroys it, then it is a denial
• if it avoids, it is an avoidance which must be affirmatively pleaded as an affirmative defense

Next class is rule 11 – device for deterring abuse of liberal pleading rules.

• needed in order to keep lawyers and parties honest
• what is better? Should people be allowed to come in on basis of what they reasonably believe to be true, or should their be an objective standard? This is what we will talk about in Rule 11.
• There was an intermediate drafting of rule 11, and a softening of the approach of rule 11 today.

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February 8, 1999

Review of Eastway Construction case

• all about Rule 11
• sanctions may be enforced against a lawyer who files a frivolous lawsuit or a lawsuit that is not properly researched
• what is the measure of sanctions? à is it based only on deterrence? Defendant has view that court has "abused discretion’s." Or is it to repay the outlay of the other side? Probably a balancing between these two.
• To what standard is a Rule 11 sanction question appealed?

Reasonable inquiry standard

• anyone who signs the complaint will be held responsible for it

Hard to know which standard to use: good faith/reasonable inquiry or ______ ?

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February 10, 1999

NO CLASS ON FRIDAY

Administrative Monday – will have Monday classes on Tuesday

21 day notice allows for the party that is faced with sanctions to withdraw complaint or correct errors.

Notice must be given that sanctions are going to be requested. Otherwise the safe harbor 21 day period will not be available to the other party.

Sue sponte – inherent power of court to do whatever they want to do (whatever they see as just)

Inherent power of the court – deals with people that have acted in bad faith (contempt)

Three mechanisms (is a sliding scale it seems):

Rule 11 – does not require bad faith

1927 – more power for the court

inherent power of the court: bad faith stuff

malpractice insurance costs:

Erie questions involved in Rule 11: mainly in diversity cases; under state law there are no sanctions available, but now defendant removes to federal court so that sanctions will be available. This seems to be a case of forum shopping.

Court has jurisdiction to determine if it has jurisdiction.

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February 16, 1999

Accretion – process of a river that moves gradually, then the boundary line remains with the river.

Avulsion – process of a river changing course rapidly. If so, then the boundary stays where it was before the change.

Res judicata – claim preclusion

Some courts say that it is res judicata if there was a chance to litigate the claim, and you did not avail yourself of that opportunity, then it is res judicata (waived). Subject matter jurisdiction is subject to res judicata.

• once final judgement is reached it is res judicata

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February 17, 1999

Relation back – (15c) – can raise an Erie question. What if state law does not allow relation back, but federal law does allow relation back?

Review of Schiavonne

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February 19, 1999

Exam is mainly multiple choice:

40 multiple choice questions, each worth 3 points, also one 40 point essay

QUESTION: may D1 join any other claims not related to original claim, against defendant 2?

Choose the best answer:

1. yes, 13g
2. yes 13g, 18a
3. yes 13g, 20a
4. no 13g, 18a
5. yes, 18a

B is the best answer because: you need 13g claims before you can join claims under 18a. Give the most COMPLETE answer – this is why b is better – it includes both possible answers.

For FRCP questions, stay within the scope of the rules (do not consider problems of jurisdiction)

No compulsion for P to sue all Ds in the same action.

15a – can amend complaints

14a, 15a, 20 – all can be used to join parties

Rule 19a –

1335 –

minimal diversity – is okay to have

1335 – must consider 3 statutes when dealing with this rule: Rule 4 (limited reach of federal court to that of a state in which it is sitting),

2361 – nationwide service of proper

1397 – venue is proper if the place of residence of any ONE of adverse plaintiffs

Venue:

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February 22, 1999

A enters in to a contract with B for the sale of an auto. A will pay $2000 to B for the sale of the auto which is due on April 1, 2000. A makes demand on B to fix car several months later. B refuses. A sues B seeking to recover cost of repairs in amount of $1200. Action was filed on January 1, 2000. Must B file claim for $2000 as a counterclaim?

1. yes
2. no
3. maybe
4. all of the above

NO – 13a says you must only file counterclaims for those issues that have matured "at the time of serving" – could not have sued until the breach.

Compulsory counterclaim – if second claim arises out of the same transaction as the first; also want economy of litigation, consistent judgments

13a – compulsory counterclaim if arises out of transaction or occurrence that is part of the opposing party’s claim. DON’T confuse with Rule 20. Rule 20 is more expansive than rule 13, does not cover rule 13.

13a – compulsory counterclaim – claims you have to file, or loose them

13b – permissive counterclaims – permit you to file a claim; if you don’t file it, there is no consequence

13g – allows filing of current and contingent claims – permit the filing of a claim you may have

should cross claims be made compulsory? – maybe to serve judicial economy (if D A has claim against D B, then might as well require it to be cross claimed)