1CIVIL PROCEDURE ONE PROF. SLOMANSONFINAL EXAMINATION: FALL 2012 EXAM # _______

TABLE OF CONTENTS PageContents ...................................................................................................................... 1Instructional Memo ….…............................................................................................ 2

FILEFederal Complaint …................................................................................................... 3Answer ……….………………………………….…………………………………… 4State Complaint ………………………………………………………………………. 5

LIBRARYFederal Rules of Civil Procedure ………….……………………………………….. 6Federal Statutes …………………………………………………………………….. 6State Statutes ……………………………………………………………………….. 6

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Memorandum

Fm: Managing Partner To: Associate ApplicantRe: Jones v. Dalton HotelsDate: December 17, 2012

We are among the growing number of law firms using this three-hour, closed book exercise to screen applicants during our interviewing process. We do not expect you to use any particular format for your response. Please feel free to employ the “IRAC” format you likely used in law school.

We do not want you to represent a particular side in this litigation. We do want you to provide the respective arguments for any issues that can be argued by the parties, and to reason to a conclusion for each issue.

This exercise consists of six (6) pages. Your task is to respond to the eight questions presented in the FILE below. You should spend at least one-third of your time responding to Question 3.

Be sure to read the documents and legal resources in the attached FILE—and LIBRARY. Not every scrap of information will necessarily be relevant to this exercise. The LIBRARY does not contain all relevant legal resources.

The plaintiff’s attorney wasted no time, filing this case on the day he first met the plaintiff….

Good luck, MPManaging Partner

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FILE

Peter Jones, an individual ) v. )Dalton Hotels, a corporation )

UNITED STATES DISTRICT COURTSouthern District of California File Number 654321-S.O.B.

COMPLAINT for DEFAMATIONFiling Date: January 2, 2012

1. This case arises under the Diversity and Ginormous Hotel Labor Relations Management Act (§999) jurisdiction of the federal courts. 2. Plaintiff Peter Jones (hereinafter Jones)—formerly domiciled in Phoenix, Arizona, where he was employed by the defendant hotel—is now domiciled in California. 3. Defendant Dalton Hotels (hereinafter Hotel) is a corporation. Hotel is incorporated in Arizona. It owns, operates, and controls the Dalton Hotel chain in Arizona, Nevada, New Mexico, and Oregon. Twenty-five percent of its total operations are conducted in each of these four states). Defendant hotel occasionally lodges guests from California. 4. Without just cause or excuse, the defendant’s hotel manager (Michael McMan) fired Jones, thus humiliating and embarrassing Jones, and subjecting plaintiff to ridicule. 5. Wherefore, Jones seeks damages for pain, suffering, and humiliation, in the amount of $70,000.00, plus any further damages which may be proven at the trial of this action. Signed: Jumpin’ Jack Flash Dewey, Cheatem, Bilkem & Howe Attorneys for Plaintiff Jones

Peter Jones, an individual ) UNITED STATES DISTRICT COURT

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v. )Dalton Hotels, a corporation )

Southern District of California File Number 654321-S.O.B.

ANSWER to COMPLAINT for DEFAMATION

Filing Date: January 23, 2012

ANSWER 1. Defendant Dalton Hotels herein appears in the above-captioned action. 2. Hotel denies any responsibility for the claims set forth in the complaint in this action. 3. Wherefore, Hotel prays that Peter Jones take nothing by his complaint.

AFFIRMATIVE DEFENSES 4. The court lacks subject matter jurisdiction over the claims set forth in plaintiff’s complaint. 5. The court lacks personal jurisdiction over this answering defendant. 6. Plaintiff has failed to state any claim for which relief can be granted. 7. Plaintiff has failed to include all necessary parties to this action.

Signed: Nancy Grace

Devil’s Advocate & Associates Attorneys for Defendant Dalton Hotels

More Facts: Five weeks after filing the above Answer, Dalton Hotels filed a Rule 12(b) motion with the court.

Questions:1. Did the above Dalton Hotels responsive pleading, and its five week delay, waive its right to attack jurisdiction under federal law? 2. Plaintiff’s lawyer requests the court to apply California state law—regarding personal jurisdiction motions to quash service of process. Should the federal judge apply state or federal procedure to this request?3. Assume there has been no waiver, and that the court denies plaintiff’s (Question 2) request. Should the court grant the defendant’s Rule 12(b) motion, based on its affirmative defenses? 4. Assume that the court denies defendant’s (Question 3) motion. The Hotel timely seeks a transfer of this case to the federal district court in Phoenix. Jones does not consent. Should the court grant this defense motion? 5. Would Jumpin’ Jack Flash (plaintiff’s lawyer) be subject to sanctions for filing the above complaint?

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More Facts: Assume that none of the above motions result in a dismissal or transfer. The case went to trial, resulting in a defense verdict for Dalton Hotels. Hotel then filed the following document (do not use the pleading below to analyze any issue in the above federal case—although the above federal case may have some bearing on the state case):

Dalton Hotels, a corporation )Michael McMan, an individual ) v. )Mr. Peter Jones, an individual )Mrs. Pamela Jones, an individual )

ARIZONA MUNICIPAL COURTin and for the County of Maricopa

File Number AZ-12345COMPLAINT for FRAUD

Filing Date: December 3, 2012

1. Plaintiff Dalton Hotels (hereinafter Hotel) employed both Michael McMan and Peter Jones at its hotel in Phoenix, Arizona. 2. Mr. Jones, upon the termination of his employment by Mr. McMan, accused both Hotel and McMan of various torts in relation to the termination of defendant Jones’ employment. That case resulted in a defense judgment. 3. Wherefore, plaintiffs pray for a judgment in this subsequent fraud case—against Mr. Peter Jones, and his wife, Mrs. Pamela Jones, in the amount of $10,000.00 each.

Signed: Nancy Grace

Devil’s Advocate & Associates Attorneys for Plaintiff Dalton Hotels

More Questions For the remaining three questions: assume that the Arizona State procedural rules are identical to the Federal Rules of Civil Procedure—and, do not discuss federal notice pleading, state fact pleading, or Iqbal:

6. Has plaintiffs’ lawyer properly pled this fraud case? 7. Are Hotel, McMan, Peter, and Pamela all properly joined in this action? 8. Will the Jones’s be able to dismiss Hotel’s Arizona complaint, based on the prior litigation?

[End of FILE]

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LIBRARY

FEDERAL RULES OF CIVIL PROCEDURE FRCP 11: Signing Pleadings, Motions and Other Papers; Representations to the Court: (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: * * * it is not being presented for any improper purpose * * * .

FRCP 12: Defenses and Objections: (b) How to Present Defenses: Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.

FEDERAL STATUTES 28 United States Code §1332: Diversity of Citizenship; Amount in Controversy; Costs (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—

(1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state * * * .

999 United States Code §999: Ginormous Hotel Labor Relations Management Act * * * (e) Hotel chains engaged in interstate commerce are further liable for any inappropriate dissemination of employee personal information to third parties.

STATE STATUTES California Code of Civil Procedure §410.10: Basis A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution * * * .

California Code of Civil Procedure §418.10. Motion to quash service of summons (a) A defendant, on or before the last day of his or her [or its] time to plead * * * [when attacking personal jurisdiction, must] serve and file a notice of motion * * * : (1) To quash service of summons on the ground of lack of [personal] jurisdiction of the court over him or her [or it]. * * * [End of LIBRARY]

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1. Waiver * must assert certain defenses when first appear* may assert them via either motion or aff def* IPJ waivable * SMJ not* Hotel waived IPJ, not SMJ

Civ Pro I—SlomansonFall 2012

Prof’s Issue Outline“@” = complaint “ ±” = not

2. Choice of Law* default procedure = fed * state proc requested = “on point” v. balance* st: must mo quash 1st appear* FRCP 12b “on point -> pleader option later IPJ mo

* judge must FRCP (Hanna)

4. Transfer* 1404a = better forum elsewhere * absent consent, then * where might brought * P could have filed AZ: IPJ over D corp * convenience element * Gulf Oil factor(s) * arose Phoenix—liab & evid Phoenix

3. 12b MotionsSubject matter * Diversity: Domicile * P was AZ, “now” CA * Dalton = inc. AZ * CA not PPB (“occasional”) * time filing P = CA Amount -> * 70k ok §999 * not ok Div * “further damages?” * D’s “legal cert” burden * FQ (Ginormous Act): * interstate commerce? * dbi four states * dissem 3d parties * @ “subj. ridicule” Personal jurisLong arm * non-resident D * 410.10 = outer limits Due Process Due Process* minimum contacts/ties forum* arose in AZ* “occasional” guests fm CA (± gen IPJ)* abt 100% bus outside CA (@ ¶3)* contacts not arise forum contact (± not spec IPJ)Failed claim* fed notice pldg * Iqbal plausibility * “owns, operates, and controls” no bearing* “without cause/excuse” = defense & conclu law* “fired” no context * “humil/embarr/ridicule” no context * how defama published to “third party” (§999)? * §999 elements not pled/fact-matchedNecessary party* 12(b)7/Rule 19 absentee* McMan directly involved P’s claim * infeasible joinder IPJ -> no suggested ties CA* SHAPE * joint tortfeasors usually ± indisp

5. Flash Sanctions* Rule 11 gist/policy * “investiga reas under circum”* Memo: @ file day met P * Conclu: timing suggests no investigation--------------------------------------------------------6. Fraud* heightened pldg rqmt fraud @ * character attack rationale * “torts re termination” ± estab fraud* S1 = defense jmt not = fraud--------------------------------------------------------7. Joinder* same transaction/occurrence? * cmn Q law/fact * (Ds) jt, several, alternative liab? * How D Peter defraud McMan?* Mrs. Jones: no connection S1 facts------------------------------------------------------ 8. Hotel’s S 2 * Comp counter-claim gist* Rule: “opposing party’s claim”* Caselaw: “logical relationship” * AZ case ref prior case (various torts)

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Sample Student Answer 1. Did the above Dalton Hotels responsive pleading, and its five week delay, waive its rights

to attack JXD (jurisdiction) under federal law?

Under federal law, a motion must be made before the answer. If the D wanted to preserve its 12b

claims, it would have had to consolidate them into one motion and make that motion upfront.

However, attacks on SMJ, failure to state a claim, and failure to join are all claims that are

preserved. Also, while JXD will be waived if it is not claimed as an affirmative defense in the

responsive pleading, here, D included an attack on SMJ (subject matter jurisdiction) and IPJ (In

Personam Jurisdiction) in it's pleading. Thus, it did not waive its right.

2. Should the federal judge apply state or federal procedure to this request?

In a FQ (federal question) claim, both substantive law and procedural law to be applied is

federal. In a DIV (diversity) case, the substantive law to be applied is the law of whichever state

the FDC sits. For procedural law, the default is federal procedure, unless a party requests state

procedure to be applied.

First, the court must look to whether there is a FRCP (federal rule of civil procedure) on point. If

there is, then that rule (and thus, federal procedure) must be applied. If there is no FRCP "on

point" then the court must look to the York-Byrd tests. Under the York test, if there is no

significant difference between the state and federal procedure, then the federal procedure should

be applied. If there is a significant difference, then state procedure should be applied, unless the

Byrd test says otherwise. The Byrd test balances the state and federal interests of the two judicial

systems. Whichever system has a greater interest in the application of their law, whichever is

more applicable and specific to the situation, and whichever seems to make the most sense are all

considerations in making this determination.

Here, for FQ claim portion of the claim. Federal procedural and substantive law will be applied.

For the DIV portion of the claim, CA substantive law will be applied. For the procedural law, is

there any FRCP "on point?" For an FRCP to be "on point" it must mirror what is going on in this

case. Here, there no FRCP that matches this situation. So now applying the York test, is there a

significant difference between the two? There is due to the fact that one will result in quashing of

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service (the state procedure) and one won't quash (federal procedure). Due to that fact that there

is a significant difference, state law will be applied unless the Byrd test result in a different

conclusion. Under the Byrd test, the application of state procedure seems to make more sense. It

is very specific and seems to apply to a situation as here, where a D, on or before its last day to

plead, may serve and file a notice of motion to quash service of summons on the ground of lack

of personal JXD of the court over him or her. Not only is this very specific, it evidences that the

state cares a lot about applying its procedure. If it did not, it would not have adopted such a

specific statute.

3. Should the court grant the D's Rule 12b motion, based on its affirmative defenses?

12b1 Motion to Dismiss for Lack of SMJ

SMJ is the power of the federal court to hear the particular claim. SMJ cannot be waived. There

are two "front door" entrances to obtaining federal JXD. 1) FQ and 2) DIV. There is a third

"back-door" way, which is SUPP (supplemental) JXD. For FQ, the complainant must plead a

case that arises under a federal statute, international treaty, or the constitution. There is no

minimum AIC (amount in controversy). There is a heightened pleading standard for a statutory

COA (cause a action), requiring that the P fact match the D's conduct to the statutes terms. P

cannot merely copy and past the statute and say D violated it.

For DIV, P brings a claim that doesn't involve a FQ, but the parties are domiciled in different

states. There are two elements that must be met: 1) Complete diversity of citizenship and 2) Min

AIC. Complete DIV means that no P and no P may be domiciled in the same state. Corporations

have 2 domiciles, its state of incorporation, and its PPB. A corps PPB is determined by the U.S.

Supreme Courts "nerve center test" which says that a corps PPB is wherever the corp decision

making occurs. Merely doing business in a state does not amount to a PPB. For min AIC, the

value or sum of the case must exceed the value of $75k. The sum P claims controls if apparently

made in GF. It must appear to a legal certainty that P cannot collect the AIC before a claim will

be dismissed on this basis.

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FQ: Here, P's claim arises under the USC Sec 999 Ginormous Hotel Labor Relations

Management Act, a federal statute. The statute says that (e)Hotel chains engaged in intestsate

commerce are further liable for any inappropriate dissemination of employee personal info to

third parties. D does participate in interstate commerce. It's state of Incorporation is AZ, and then

25% of its total operations are conducted in 4 total states in which it has its hotel chains in which

D owns, operates and controls (AZ, NM, NV, OR). It thus does engage in interstate commerce.

The next question is whether D inappropriately disseminated personal employee info to a third

party. The complaint states nothing of this sort. It only states that D's manager fired P w/o just

cause or excuse, and subjecting P to ridicule. Thus, D's conduct, based on P's complaint, does not

fit the conduct described in the statute. The court most likely should grant the 12b motion for the

FQ portion of the claim.

DIV: Here, the complaint states that P used to reside in AZ but now resides in CA. it does not

says when this change occurred. Domicile is determined on the date the complaint is filed. Since

in the complaint it says that P now resides in CA, it appears that CA would be his domicile, as

long as he has the intent for CA to be his domicile for an indefinite amount of time, and he has

been present in CA on at least one occasion with this intent. Assuming P's domicile has been

established as CA, we must now determine D's. D is Incorporated in AZ. We do not know for

sure where it's PPB is. It does about 25% of its business in 4 states that are not CA. It seems that

it's nerve center would be in one of these states. There is no mention of CA other than the fact

that the hotel chain sometimes lodges guests from CA. Based in this, it seems safe to assume,

absent more facts, that CA is not it's PPB. Thus, the 1st element is likely met.

The next question is whether the AIC is met. Here, P only asks for general pain and suffering

damages of $70k plus any further damages which may be proven. While it's true that the amount

stated is not the ceiling for recovery, P hasn't specifically asked for more than $75k. Because P

doesn't meet this element, the DIV portion of the claim should be granted as well under the 12b

motion.

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However, if it is found that one of the two front door ways in is met here, the court will have

SUPP JXD over the remaining claims that are a part of the same controversy. This is true as long

as there is a common nucleus of operative fact (fact that unities everything together) between the

federal and non federal portions of the claim. Another important requirement is that one would

think the two theories would be tried together because of the substantial duplication or similarity

of evidence (although common nucleus is the "big gun"). Here there would likely be a fact that

unites everything together, and that would probably be whatever conduct D's employee

employed against P.

12b2 Motion to Dismiss for Lack of IPJ

IPJ is the power of the court to enter judgment against the person/entity. It strives for fairness in

cases involving nonresident D's. There must be both procedural DP (due process) and

substantive DP to the D for a particular forum to enter a judgment against it. Procedural DP

involves 1) notice that is best practicable under the circumstances and 2) a meaningful

opportunity to be heard (D must be able to prevent deprivation before court order). Here, D

seemed to be notified in a suitable manner and had opportunity to be heard because they

responded and had no grievance regarding either notice or opportunity. Substantive DP involves

1) whether its legal to pull D into the forum (determined by State Long Arm Statutes) and 2)

whether its fair to pull D into the forum (determined by Federal DP check - aka Minimum

contacts).

There are two types of state LAS - the Traditional/"IL" and the Modern/"CA." The one here is

the Modern/"CA" type. It states that a court of this state may exercise JXD on any basis not

inconsistent with the Constitution (CA Code of Civil Procedure §410.10). What this means is

that this statute lets us bypass the statutory construction stage (making sure D's conduct fits the

LAS requirements for pulling him in), and go straight to the federal DP check. IPJ requires that

there be either specific jurisdiction over the D (the claim arose in the forum state and thats all the

ties that are needed), or general JXD (claim arose outside the forum but D has ties to it which

make it fair to litigate in the forum). Here, the claim arose in AZ. Thus, there is not specific JXD

and there must be general JXD found if there is to be IPJ over D in CA.

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All that is needed for DP to be satisfied is for D to have minimum contacts (MCs) with the

forum such that the maintenence of the suit does not offend traditional notions of fair play and

substantial justice. MCs have been articulated in several different way: 1) Purposeful Availment

and 2) Reasonable Anticipation. For purposeful availment, D's conduct/forum related activities

inject D into the forum for the benefit of dealing with it and its resident, and for the benefit of the

protection of its laws. For reasonable anticipation, D's conduct/forum related activities are such

that D should reasonably anticipate being hailed into court there.

The facts only tell us that D's hotel chain occasionally had guests from CA. It does not say it has

a hotel or an office in CA. It does not seem to inject itself into the forum at all. It definitely

doesn't benefit from protections of its laws. MCs cant be based on casual or involuntary contacts.

At most, the contact here seems casual. It also is involuntary in the sense that it didn't ask the CA

guests to come stay there, and it also can't necessarily turn them away. It s possible that the hotel

is so close the CA border that it should expect guests from CA, and it thus should expect that if

they have any claims or grievances they will take them up in CA - both this is a weak argument.

IPJ can be waived if D consents to it or fails to waive an objection. However it doesn't sound

like D consents to it. Also, IPJ is satisfied if D is domiciled in the forum, but as far as we know it

isn't. Thus, because there doesn't seem to be much in the way of MCs, it probably wouldn't be

fair to have D litigate in CA absent any other ties to the forum. Due to this, the 12b motion

should probably be granted.

12b6 Motion to Dismiss for Failure to state a claim upon which relief can be granted.

For the DIV claim, it must meet federal general notice pleading standards. This means that there

must be a short and plain statement of the claim showing the pleader is entitled to relief. The

facts must nudge the claim across the line from possible to plausible. Here, there is definitely a

short and plain statement. This claim states that w/o just cause or excuse, D's hotel manager

(McMan) fired P, thus humiliating and embarrassing him and subjecting him to ridicule. This

claim does not show how the pleader is entitled to relief. It is merely conclusory. There is no

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"meat on the bones." There must be a causal link showing how D's conduct hurt P. This is done

by including as much of the "who what where whens and hows" as possible. This information is

what the court would need to reasonably infer that D's conduct caused P's harm.

Here, there is nothing showing the claim is plausible on its face. We don't know the specifics of

the firing (such as what word were said, who else was around, McMan's demeanor, etc.). There

is nothing in the claim thats shows in what way or for what reasons P was humiliated. Why was

he subject to ridicule? This complaint leaves to many unanswered questions for relief to be

granted. For theses reasons, it is most likely that this 12b motion would be granted in respect to

the DIV portion.

For the FQ claim, the claim must meet heightened notice pleading standards. This means that

the P must show how D's conduct fits the statute. Here, P's claim arises under the USC §999(e)

Ginormous Hotel Labor Relations Management Act. This federal statute says that "Hotel chains

engaged in intestate commerce are further liable for any inappropriate dissemination of employee

personal info to third parties." D does participate in interstate commerce. D's state of

incorporation is AZ, and then 25% of its total operations are conducted in 4 states total in which

it has its hotel chains in which D owns, operates and controls (AZ, NM, NV, OR). It thus does

engage in interstate commerce.

The next question is whether D inappropriately disseminated personal employee information to

a third party. The complaint states nothing of this sort. It only states that D's manager fired P

without just cause or excuse, and subjecting P to embarrassment and ridicule. It claims nothing

about inappropriate dissemination of personal employ information to a third party. Thus, D's

conduct, based on P's complaint, does not fit the conduct described in the statute. The court

should grant the 12b motion for the FQ portion of the claim. P's claim did not fact match D's

conduct to the Ginormous Hotel Labor Relations Act.

12b7 Motion to Dismiss for Failure to join a party needed for complete adjudication.

D may try to argue that P should have joined McMan, who is the main alleged tortfeasor (All D

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did was employ him). A party who is subject to IPJ and does not destroy DIV, must be joined if

they are needed for complete adjudication. D will argue that McMan is indispensable, while P

will try to write him off as merely necessary. The whole complaint centers around McMan,

because if it weren't for his actions, then there would be no complaint. While joint tortfeasors are

usually not indispensable, perhaps in the case of a MAIN tortfeasor he will be found to be

needed for complete adjudication. Adjudication will require his testimony and evidence, so he

clearly plays a huge role here. However, P may try to argue that D and McMann are joint

tortfeasors and thus having included D is sufficient.

Even if he is required to be joined, it might not be possible. The facts don't say where McMan

was domiciled. If he was domiciled in CA, he would destroy DIV. It is possible that McMann

drives from the CA border to Phoenix for work, for example. If a party who is required to be

joined cannot be (infeasible for some reason: can't be found, etc), the court must weigh the equity

and good conscience factors in deciding whether to dismiss the case for failure to join, or

proceed w/o the absentee. These factors include: the extent to which judgment in absentee's

absence would prejudice him or the existing parties; the extent to which the prejudice could be

lessened or avoided by the courts shaping of relief; whether judgment in the absentee's absence

will be adequate; and whether P would be able to obtain an adequate remedy in the claim was

dismissed.

Here, D would likely be prejudiced if McMann was not joined because then D would have to

suffer all the costs of litigation and any damages granted to P. The court may decide to reduce

damages, but then that may not be fair to P. P may not be able to bring the case in state court, so

then he wouldn't have adequate relief if the case is dismissed. It is a close call but the court

would probably grant the 12b7 motion because of McManns role in the controversy.

4. TRANSFER - Should the court grant this defense motion?

Although P's choice of venue may be proper, a D may still request transfer to another forum if

two requirements are met. 1) A D may request transfer for anywhere the claim might have been

brought. Wherever P could have chosen to bring the claim is an appropriate venue. Here, that

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means that anywhere IPJ can be obtained over D (b/c D is an entity). IPJ can be obtained over D

is there is either specific JXD or general JXD. B/c the claim arose in Phoenix, AZ, the court

would have had specific JXD over D. It would also have general JXD because of its ties with AZ

(owning, operating, and controlling businesses there). Thus, P could have bought the claim in

Phoenix and as such it is a proper forum.

It must also be convenient for all parties and witnesses. In determining convenience, the court

will look to factors such as access to proof; availability of compulsory process to secure

attendance of witnesses; cost of obtaining such attendance; and any other practical consideration

that makes trial of the case easy, expedient, and inexpensive. Here is seems it would make much

more sense for the venue to be Phoenix. The claim purported tort occurred there. This means that

all the proof and witness would be there. Everyone but P would have to travel to CA, but only P

would have to travel to AZ (As far as we know). It would be much more inexpensive for all

involved. While P's choice of forum is given a lot of weight, it seems that D's argument would be

compelling enough for a grant to transfer.

5. Would Jumpin' Jack Flash (P's lawyer) be subject to sanctions for filing the above

complaint?

Whenever an attorney signs there name to a document they file in court, they certify that they

conducted a reasonable investigation under the circumstances and present the claim in good

faith. Here, it may be that the claim is in good faith, but it appears frivolous because there is no

substance to it. Either P's attorney is just extremely lazy and didn't include the facts necessary to

state a more thorough claim, or (and most likely) P's attorney did not conduct the duty he had to

investigate the claim. If P's attorney had, he would have uncovered more facts that to be included

in the complaint. It sounds like P's attorney just wrote on the complaint what P told him and

decided that was sufficient.

A sanction would most likely be granted against Jumpin' Jack if proper procedures are followed.

Before a motion is filed, the movant must give P at least 21 days notice in order for the attorney

to withdraw or amend his pleading. This is referred to as the "Safe Harbor" Doctrine. If after

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notice and a reasonable opportunity to respond the court decides that P's attorney has violated

rule 11b, it may issue sanctions. An order for sanction must clearly state the conduct being

sanctioned, and the reasons for the sanction. The sanction must only be enough punishment to

deter future misconduct. Also, if the motion is brought by the court, it may not order attorney

fees. Any motion that is brought by the opposing party must make it separate from any other

motion. The motion must also specifically state the alleged violations.

6. Has P's lawyer properly pled this fraud case?

Fraud requires a heightened pleading requirement. General federal notice pleading will not be

sufficient. For a fraud claim, the pleader must state with specific particularity the conduct

constituting fraud. The fraud complaint here states that "Mr. Jones, upon the termination of his

employment by McMan, accused both Hotel and McMann of various torts in relation to the

termination of D Jones's employment. That case resulted in a defense judgment." This is not

stating with sufficient particularity. The complaint must include everything expected in state fact

pleading, including all of the "who, what, where, whens, and whys." Here, we don't know what

accusations Jones made. This is perhaps the most relevant aspect to the fraud claim and it has

been left out. In all likelihood, a court would not find that this fraud case has been properly pled.

7. Are Hotel, McMan, Peter and Pamela all properly joined in this action?

In joining multiple P's and D's, several requirements must be met. First, the claim to relief

asserted by the parties/ the claim to relief assert against the parties jointly, severally, or in the

alternative must arise out of the same transaction or occurrence. Also, there must be a question of

law or fact common to all P's/D's that will arise in the action.

Here, as to the D's, Pamela Jones (presumptively Peter Jones's wife) has nothing to do with any

of the litigation as far as we know. She is never mentioned in the facts. Thus, any relief asserted

against her does not arise from the "same transaction or occurrence" as that asserted against

Peter, who was the one involved in the employment dispute. Nor then would there be a question

of law or fact common to her and Peter.

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As to the P's, their joinder seems more proper. The right to relief they assert is based on the

same occurrence (this firing/employment dispute). They both are alleging harm from the same

incident. Also, there will be one, if not multiple, questions of fact or law common to them both.

Such questions may include, what is owed to each, how was each harmed by P's act, etc.

8. Will the Jones's be able to dismiss Hotel's AZ complaint, based on the prior litigation?

If this is a Compulsory counterclaim (CC), then the Joneses will be able to dismiss, but not if it is

a Permissive counterclaim (PC). This is because a CC may only be brought during the initial suit,

but a PC may be brought after. A counterclaim is compulsory if it arises out of the same

transaction or occurrence claimed in the original complaint. A CC "arises" if it is logically

related to the original counterclaim. The CC is logically related when separate trials on the two

claims would result in a substantial duplication of time and effort of both the court and the

parties. A PC is unrelated to the subject matter contained in the original complaints claim.

Here, the allegation is based on what that occurred when D was fired. D's original complaint

was based on what occurred when he was fired. D says that he was without cause or excuse

terminated, thus humiliating him and subjecting him to ridicule. To determined what actually

happened when D was fired, the same evidence and witnesses would be used. This means that if

tried separately, the cases would be likely a substantial duplication. Thus, the claims are logically

related, arising out of the same transaction or occurrence.

P's will try and argue that the claim is a PC. They will try and argue that the two events (the

firing and the tort allegations) are separate events that require separate investigation, and will

produce different evidence and witnesses. This argument is more weak than D's. In all

likelihood, this claim will be found to be a CC, which cannot be brought now that the initial

action is complete.

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