Professors David Levine & Morris Ratner 1

I. Practice Midterm Exam Civil Procedure I - Section 3 (Two Small Sections) On October 5, 2012, Professors Levine and Ratner jointly gave an ungraded practice midterm to students enrolled in Civil Procedure I, Section 3. A copy of the practice midterm is provided along with this discussion and presentation of sample answers, as a separate PDF. Professors Levine and Ratner will discuss the practice exam and these sample answers at a special bonus (i.e., extra, optional) joint session of both Section 3 small sections on Wednesday October 17, 2012, at 3:30 p.m., in Room H. II. Characteristics of Good Answers Section III, below, provides edited excerpts of student answers. These answers are examples of strong answers, i.e., answers that, though imperfect, would have placed well on a curve. Relatively open-ended essay questions can be answered using a variety of successful writing styles and approaches. The best exam answers had the following general characteristics in common: 1. They spotted the key issues. 2. They precisely used the doctrinal language of civil procedure. 3. They correctly identified relevant rules and decisions. 4. They applied the rules and case law to the unique facts presented by the hypothetical. 5. They acknowledged and confronted potential counter-arguments. 6. Where appropriate, they appealed to the policies or values underlying the doctrine. The sample answers presented herein may contain errors, and do not represent the only approaches that could have been taken to each question. Instead, they are presented as examples of exams that stood out as being relatively nicely executed. For each Question, we have selected one answer from Professor Levine s small section and one answer from Professor Ratner s small section; Professors Levine and Ratner have emphasized distinct facets of the underlying course material, and have each given a slightly different spin to the material, something you should bear in mind when reviewing the sample answers. Professors David Levine & Morris Ratner 1

III. Sample Answers Question 1 Sample Answer A (Excerpted and Adapted from Student Answer (Levine Small Section)) P filed a complaint in federal court alleging she slipped and fell on Vessel and fractured her ankle after a night of drinking. First count alleges negligence bc stairway was not properly maintained. Second count alleges negligence bc D served her alcohol after she was intoxicated. She then seeks damages for person injury, physical and mental pain, and medical expenses of 75,000. Question Presented: Can the defense file a motion to challenge allegations of the complaint, and will such a motion be likely granted? Short Answer: While there are several motions that could potentially be brought, it is unlikely any of them would be granted bc the complaint likely satisfies the rules set out in FRCP. Analysis: Failure to State a Claim: Did the P sufficiently state a claim? In federal court, (notice pleading jurisdiction), the P must provide a short and plain statement showing he is entitled to relief (FRCP 8(a)(2)). Traditionally, this requirement has been interpreted as requiring only notice to the D and (court and public) of the proceeding and what counts the P alleges. The Supreme Court held in Swierkiewicz that the "ping pong game" where allegations are alleged and denied by the parties back and forth does not need to be played at the pleadings stage. Additional information of what exactly happened is unlikely to be required by the court, unlike in a Fact Pleading jurisdiction (Gillespie case). Here, the P states she slipped and fell in both counts. She does not provide specific details of what exactly happened as a detailed narrative because she merely states that she fell due to negligence of D. However, she provides a short and plain statement and likely shows she is entitled to relief because she states she was injured as a result of negligence on behalf of D, explaining that the D's negligence in maintaining the stairway (count 1) and negligence through over-service of alcohol (count 2) led to her damages. While this would not likely be enough in a fact pleading jurisdiction due to lack of details, this complaint likely satisfies FRCP 8(a)(2) by providing notice. However, the D can argue that FRCP 8(a)(2) is not fully satisfied, under the new Iqbal/Twombly standard because it does not plausibly state a claim. In Iqbal, the court held that the P must show an allegation of a government conspiracy must be shown to be plausible, not merely possible. Here, unlike Iqbal, there is no case against high level government officials, and it is not a case involving a governmental conspiracy because there is only allegation of negligence against a cruise company. Additionally, the complaint is likely to be deemed plausible as it is, because it is of an event that likely often occurs (slip and fall). Thus, the court is unlikely to require additional information to consider the complaint plausible under Iqbal. Professors David Levine & Morris Ratner 2

If we were to decide that there is a chance the court will consider R8(a)(2) not satisfied, the motion that should be filed is 12(b)(6). FRCP 12(b)(6) provides that a motion for failure to state a claim upon which relief can be granted can be filed prior to filing the answer. While we can use this motion to challenge the sufficiency of the stated claim in the complaint, it is unlikely to be granted for reasons above. Consistency: Can the complaint be challenged because of inconsistent causes of action? FRCP 8(d)(3) states a party may state as many claims it has, regardless of consistency. In McCormick the court held that a P may file inconsistent causes of action as long as she does not know the truth of what actually happens, and is acting in good faith. It then becomes the job of the court (jury) to determine what truly happened, and return verdicts on the separate causes of action that are consistent with each other. Here, the P alleges in count 1 that she fell bc of negligence in maintaining the stairway and in count 2 that she fell because of being intoxicated as a result of being over-served alcohol. These counts are not necessarily inconsistent because it is possible that both factors contributed to her fall. However, even if we can convince the court that they are inconsistent, the court is still unlikely to dismiss either count, because if the P does not truly know which factor led to her fall, it will be the job of the jury to decide what truly happened. We can argue that bc she knew whether or not she was over-served alcohol, she should know which of the 2 allegations is truly what happened., and thus acted in bad faith by filing inconsistent causes of action. However, because the counts are not necessarily inconsistent, it is unlikely the court would dismiss either count on these grounds. If we were to decide there is a chance the court will consider these facts inconsistent and filed in bad faith, we would file a 12(f) motion. FRCP 12(f) states the court may strike any redundant, immaterial, impertinent, or scandalous matter. Here, we can argue that the inconsistency leads to at least one untrue count and thus at least one count is immaterial to the complaint. However, the court is unlikely to grant this motion for reasons stated above. There is also no scandalous, or redundant matter. Thus, the court is unlikely to grant a 12(f) motion for any reason. More Definite Statement: Can this complaint be considered not definite enough? FRCP 12(e) allows a party to move for a more definite statement for a complaint that is so vague and ambiguous that the D cannot phrase a response. This motion is reserved for extreme cases where the complaint is written in a foreign language or in poetic or otherwise difficult to understand language. In Harbor Commissioners the court held that this motion cannot be used as another way to claim failure to state a claim (12(b)(6)). Here, the complaint is written in simple, plain language that is easy to understand. Thus, the court is unlikely to grant a 12(e) motion. Special Damages: Can alleged special damages be considered not specific enough? FRCP 9(g) requires for special damages to be specifically stated. Special damages include things like lost wages and medical expenses. Here, the P claims medical expenses. She, however, states them specifically to be in excess of $75,000 in both counts of her complaint. Thus, it is unlikely that the court will find special damages not pled specifically enough. If we were to decide there is a chance the court will consider damages requiring more specificity under 9(g), we would file a 12(f) motion. See above for 12(f) explanation. We would claim that because of lack of specificity on special Professors David Levine & Morris Ratner 3

damages, they are immaterial to the complaint. However, the court is unlikely to grant this motion for reasons stated above. Question 1 Sample Answer B (Excerpted and Adapted from Student Exam Answer (Ratner Small Section)) As the defendant filing a motion in response to a plaintiff's complaint, CCC s options are framed by Rule 12. After the complaint has been filed, CCC has 21 days to answer; however, if we file one of the pre-answer motions, 12(b)-12(f), we have additional time to answer (pegged to date of resolution of motions to dismiss). We should consider filing a Rule 12(e) motion for a more definite statement. However, this is only used when a complaint is determined to be "unintelligible" (Board of Harbor Commissioner). As plaintiff's complaint clearly alleges that she slipped and fell, suffering injuries, and/or that she was over-served alcohol leading to her intoxication and fall, the complaint is reasonably understandable and a Rule 12(e) motion would thus most likely be denied. A motion for failure to state a claim under Rule 12(b)(6) has a greater likelihood of success. This motion is linked to Rule 8(a)(2) which pertains to the contents of the complaint itself. They are tied because a Rule12 (b)(6) failure to state a claim may be granted if the allegations fail to meet the pleading standard articulated in Rule 8(a)(2). The current test used to determine the sufficiency of the complaint is the Iqbal/Twombley test. This test has two parts. Under the first part of the test, we review the allegations of the complaint, labeling them as either fact allegations or as mere legal conclusions; factual allegations are accepted as true for purposes of the motion to dismiss, but legal conclusions are not. Under the first count, if we take away plaintiff's allegations that Vessel under CC was negligently maintained, recognizing that the word negligently is a mere legal conclusion, then we are left with the facts that 1) Ms. Panning slipped and fell on a stairway 2) suffered personal injuries and 3) suffered physical and mental pain 4) incurred medical expenses of $75,000. These facts are then applied to the second part of the test: whether the factual allegations, accepted as true for purposes of the motion to dismiss, plausibly state a claim (standard established by Twombley, i.e., that "the facts are enough to raise a right to relief above speculative level." Put differently, the facts alleged, if true, should be enough to raise a reasonable expectation that discovery will reveal evidence of actual negligence. The factual allegations in this complaint do not seem to establish negligence; they do not show what duty, if any, was violated. This may lead the judge to grant the motion to dismiss in our favor. On the other hand, Form 11 is as barebones as is this complaint, and was deemed satisfactory by the Court in Twombly; so perhaps this complaint, though not seemingly sufficient under a strict application of the Iqbal/Twombly interpretation of Rule 8(a)(2), will also survive a challenge under Rule 12(b)(6). A similar analysis applies to Count II. If we take away the conclusory allegation that our client was negligently over-served alcohol, plaintiff is left with fact that she slipped on the stairway, that she was intoxicated, and that she suffered personal injuries. In this count, the factual allegations make it more likely that our motion to dismiss will be Professors David Levine & Morris Ratner 4

denied, even under a relatively strict reading of Iqbal/Twombly, because our client's overservice of alcohol may, if accepted as true, constitute a negligent action depending on the nature of our client's duty in connection with serving alcohol. Count II is thus a harder call. Even if the judge grants our Rule 12(b)(6) motion challenging the sufficiency of the allegations, the judge may do so with leave to amend. This practice is rooted in the value of fairness and in the general preference in our modern system of civil procedure for deciding cases on the merits (and not on a technicality). Therefore, if we file a motion to dismiss, there may be an amendment to the complaint. The fact that the two claims themselves could be potentially contradictory (that CCC was negligent in serving her alcohol and that CCC was negligent in terms of the way it maintained the ship stairs) is not necessarily a violation of the pleading rules. Under 8(d), she is allowed to plead inconsistent claims as long as she genuinely does not know which facts are true. We cannot use her contradictory claims against her in order to throw her claim out, as long as she genuinely does not know whether it was her drunkenness or standard of care of the cruise ship that caused her accident. She is allowed to discover more information in discovery to see which evidences support one of her claims (McKormick). All in all, our best bet is to file a 12(b)(6) motion. Professors David Levine & Morris Ratner 5

Question 2 - Sample Answer A (Excerpted and Adapted from Student Answer (Levine Small Section)) If our client has factual evidence to show that Panning was not a passenger not the Vessel on May 5, 2012 we would encourage our client to not file a general denial but rather to respond to each item in turn and file a specific denial for each claim. Under 8(b)(3) with general denials you are denying every single thing in the claim, including, for example, the claim in 1 that the Vessel was owned by CCC. You would also, for example, be denying that the Plaintiff is able to bring a case in this particular jurisdiction. Because of this, it is much better to file specific denials rather than a general denial. We can deny her claim that she was on board a ship owned by CCC without having to deny that she has a right to bring suit in that jurisdiction or even something as particular as our own name. The rule is typically that you are assumed to affirm everything and you deny specifically, rather than denying everything and affirming a few things. As seen in the Jones v. Clinton case it is also acceptable for our client to state a lack of knowledge or information defense against each of the claims. Rather than denying that she did have an accident or did slip and fall, it might be more prudent under Rule 8(b)(5) to claim that our client, thinking that they are not the intended party, have no knowledge of that claim. They can easily assert that they have no knowledge as to whether or not she slipped and fell as a result of a ship negligently maintaining their stairwells. If she really was not a passenger on board our ship our client would literally have no knowledge or record. Choosing to state a lack of knowledge rather than flat out denial will safeguard our client against some of the repercussions of Rule 11, which is a rule indicating that any signed material you submit to the court (for example a signed responsive pleading) are true to the best of your knowledge. Rule 11 does not make an exception for facts that you could have reasonably been made aware of. Under Rule 11(b)(4) the denial of factual contentions can only be made after a reasonable inquiry under the circumstances. Given the lack of information presented, the Plaintiff could be confused as to what ship she was on. If it was later found out that our client owned a sister company, or a subsidiary company that owned a ship upon which the Plaintiff was a passenger, we reasonably had access for inquiry into that information and a denial of her claim might subject parties to Rule 11. Question 2 - Sample Answer B (Excerpted and Adapted from Student Answer (Ratner Small Section)) If CCC does not believe that Panning was a passenger on its Vessel, and it wishes to file a general denial, it may do so under Rule 8(b)(3). However, a general denial is only valid when a party intends in good faith to deny all allegation of a pleading. Here, CCC only wishes to deny the fact that Panning was a passenger, so it only effectively wishes to deny Allegation 1 as listed in the fact pattern. It would serve the CCC's best interest to instead admit or deny the complaint s allegations specifically. Here, the plaintiff appears to have suffered extensive injuries, so Allegation 2 and Allegation 5 from the fact pattern cannot be denied. Therefore, CCC should only deny Allegation 1. Professors David Levine & Morris Ratner 6

Filing a general denial under Rule 8(b)(3) could also result in Rule 11 sanctions if the general denial were found to be unwarranted by the evidence found upon an objectively reasonable inquiry (Rule 11(b)(4)). Under Rule 11(b), when we present the court with a filing, it assumes that the attorney certifies that to the best of the person's knowledge, information, and belief, formed after a reasonable inquiry. If the filing does not satisfy this, the moving party can be subjected to Rule 11(c) sanctions by not performing a reasonable inquiry into the facts of the case. Here, we do not contest to the fact that Panning was injured, but rather just the notion that she was a passenger on the Vessel. Filing a general denial would effectively deny the fact that she had sustained injuries and could be interpreted as the firm not performing a reasonable inquiry into the facts. This could potentially warrant sanctions under Rule 11(c) because it may delay the proceedings or increase the cost of litigation, which the courts actively try to avoid. However, if we were to file a general denial, and we realized that we wanted to retract the denial, we could also file a withdrawal under Rule 11(c)(2) the safe harbor motion. This allows a party to withdraw claims, defenses, and other legal contentions within 21 days after service. The courts typically allow this in order to reduce the cost of litigation and in order to encourage the adversarial process by making the pleadings stay party-driven. It also gives the opportunity to the lawyer to rectify a potential mistake. All of these factors seek to improve the efficiency of the judicial process. Although the safe harbor motion presents an opportunity to not have sanctions imposed, it is in the best interest of CCC to answer the allegations with specific admissions or denials, rather than via a general denial. Professors David Levine & Morris Ratner 7