What Did the Defendants Do First?

Gather Evidence
Process Claims from Survivors
Issue Press Releases
Hire Lawyers

What Did the Plaintiffs Attorneys Do First?

Gather Evidence
Get Retainer Letters
Demand Payment from the Defendants
File a Lawsuit

Payment for Legal Services

Method of Payment for Defendants Lawyers
Hourly Fee
Method of Payment for Plaintiffs Lawyers
Contingency Fee (p. 30)
Amount?

Who Decides Where to Sue?

Plaintiffs Attorney
Defense Attorney
The Judge
All Have a Role

Planning Where to Sue

Which State to Sue in? (p. 49)
Plaintiffs Would Have Preferred D.C. or New York. Why?
But They Had to Sue in West Virginia. Why?
Federal versus State Court
Plaintiffs Wanted to Be in Federal Court. Why?
Possible State Court Bias
Familiarity with Federal Procedure
Favorable Federal Court Precedent Spotted Cow Case from
1926 (pp. 54-55)

Requirements for Suit in Federal Court

Diversity of Citizenship
Citizens of Different States on Opposite Sides of Case (p. 51)
No Diversity Between Plaintiffs and Buffalo Mining Company
So Plaintiffs Had to Sue Pittston
Relied on Piercing the Corporate Veil

Complaint Was Filed in Federal Court

At the Beginning of the Case, the Plaintiffs Attorneys Had Limited
Information
How Do You Prepare a Complaint With Limited Information?
Prayer for Damages (p. 62)
Property Damages $11 million
Psychological Damages $20 million
Punitive Damages $21 million
Total $52 million
Where Do These Numbers Come From?

Next Phase of Litigation Process Discovery

Before Discovery Began, the Defendant Filed a Motion to Dismiss and a
Motion for More Definite Statement (pp. 103-105)
Sources of Information
Your Own People
Opposing Parties
Third Parties
Discovery is Usually Necessary for Opposing Parties and Third Parties

Attempt at Settlement
Plaintiffs Reduce Demand from $64 Million to $32.5 Million. (p. 195)
Where Did These Numbers Come From?
What Was the Response of the Defendants Attorney?
Settlement Was Not Very Promising.
Next Pittston Filed a Motion for Summary Judgment Against 33 Absent
Plaintiffs (p. 219)

What Issue Was Raised By the Motion?

Whether Any of the Plaintiffs Could Recover Damages for Psychic
Impairment
Whether the Absent Plaintiffs Could Recover Damages for Mental Injuries in
the Absence of an Impact.
Whether the Absent Plaintiffs Suffered Mental Injuries.
Whether the Absent Plaintiffs Suffered Physical Injuries.

What Did the Court Decide?

The Absent Plaintiffs Could Recover Damages for Their Physical Injuries But
Not For Their Mental Injuries
The Absent Plaintiffs Could Recover Damages for Their Mental Injuries Only
If They Also Had Physical Injuries
The Absent Plaintiffs Could Recover Damages for Their Mental Injuries If

Pittston Caused Them

The Absent Plaintiffs Could Recover Damages for Their Mental Injuries If
They Did Not Have Physical Injuries But Only If Pittston Was
Reckless

Partial Summary Judgment

The Decision Was Reported at Prince v. Pittston Co., 63 F.R.D. 28 (S.D.W. Va.
1974).
Why Wasnt the Motion Filed Earlier in the Case?
Needed Discovery to Develop Facts
Motion was More Dramatic on Eve of Trial

Final Settlement Dance

What Produces a Settlement is Fear and Uncertainty.
Fears of Defendant
Fears of the Plaintiffs
What Was the Defendants Greatest Fear?
Potential for Large Verdict
Adverse Publicity
Cost of Trial to Pittston
Lawyers Concerns With Trial

Fears of the Plaintiffs

General
Long Expensive Trial
Appeals Could Take Years
Liability
Piercing the Corporate Veil Not Very Likely
Better Theory Emerged from Discovery
Culpable Conduct of Pittston Employees
Visit on the Day Before the Disaster. Arguably Reckless
Conduct
Insurance Deductible. Shows Pittstons Awareness of Danger

Fears of the Plaintiffs

Damages
Property Losses
Only $2.5 Million
Wrongful Death
$10,000 Limit per Person, Unless There Proof of Economic
Dependence and Then Had Maximum of $100,000
Fears of the Plaintiffs
Damages
Psychic Impairment

Zone of Danger Limitation from Tort Law

Unless Plaintiffs Could Establish Recklessness
Punitive Damages
Also Required Recklessness
How to Prove Recklessness?
Pittston Knew of Danger and Did Nothing

Settlement at $13.5 Million

Epilogue -- Economic Analysis
$5.5 Million for Property Damage, $8 Million for Psychic Impairment
Legal Expenses $3 Million to Arnold & Porter
Probably a Like Amount for Defendants Attorney Fees

Settlement at $13.5 Million

If Parties Had Settled at Beginning, They Could Have Saved $6 Million in
Legal Fees.
Why Didnt They?
In Economics, This is Called a Bilateral Monopoly.
Both Sides Take Extreme Positions at First, and This Impedes Settlement

Overview of Course
Summary of Lawsuit at pp. 5-14
This is Basically a Summary of the Rest of the Course.
As We Move Through the Course, I Suggest You Review the Summary
Flow Chart on p. 15
Dont Take Flow Chart Too Seriously
A Lawsuit is Not a Dance. Its More Like a Chess Game.

Roles of Judges and Juries in Trial Procedure

Jury Trial is a 2 Headed Decision-Making Process
Jury Decides Factual Matters
Judge Decides Legal Matters and Controls the Procedure.
Theres Also an Appellate Court
Corrects Legal Errors
Announces Case Law
Although Jury Makes the Ultimate Decision, the Trial Judge Plays an
Important Role
Judge Controls Flow of Information to Jury by Ruling on Admissibility of
Evidence
Judge Instructs the Jury on What the Law Is
Judge Can Take Case Away From Jury or Order a New Trial
The Judges Decisions on All These Decisions May Be Reviewed by the
Appellate Court

The Adversary System

An Essential Characteristic of American Civil Procedure
Use of Juries is an Important Reason for the Adversary System
Jurors Lack Ability and Resources to Investigate
Juries Originated in England and Are Found Only in Common Law Countries
Most Countries Have an Inquisitorial System

August 31, 2016

Review
The Buffalo Creek Story
Pleadings and Motions
Discovery
Partial Summary Judgment
And Then Shortly Before Trial the Case Settled Because of Each
Sides Fear and Uncertainty

Review
Settlement
The Settlement Value of a Case is Based on the Range of Likely
Outcomes
Also Consider Trial Expenses and Other Consequences of Trial
Overview of Course
Summary of Lawsuit at pp. 5-14
This is Basically a Summary of the Rest of the Course.

Review
Court System Structure
Roles of Judge, Jury, Appellate Court in Litigation Process
Jury Decides Verdict, But Judge and Appellate Court Play Important
Roles
Judge Can Take Case Away From the Jury Only If No Reasonable Jury
Can Find Anything Else

The Adversary System

An Essential Characteristic of American Civil Procedure
Use of Juries is an Important Reason for the Adversary System
Jurors Lack Ability and Resources to Investigate
Juries Originated in England and Are Found Only in Common Law Countries
Most Countries Have an Inquisitorial System

Characteristics of Adversary System

Active Advocates, Passive Judges
Attorneys Initiate the Legal Process, Investigate Facts, Research the

Law, and Argue the Application of the Law to the Facts of the Case
The Judge and Jury Operate as Impartial Umpires.
The Parties (Through Their Attorneys) Control What Issues the Judge
or Jury Decide, and the Judge or Jury Has Complete Control Over
the Final Decision.

Characteristics of Adversary System

See Thomas v. Victoria Secrets (p. 22)
The Plaintiff Seemed to Expect the Court to Do the Work for Her.
This is Not the Way It Works in America, Although It is in Most of the
Rest of the World
Advantages and Disadvantages of Adversary System
Advantages
Like Capitalism, Its Based on Competition
Each Side Has Incentive to Present Its Case As Effectively as Possible
Neutrality of Decision-Maker Assures Fairness
Advantages and Disadvantages of Adversary System
Disadvantages
It is Costly and Inefficient
It Can Result in Distortion of Truth and Harassment.
See Benson article (p. 24)

What Can Be Done About Disadvantages?

Cost and Inefficiency
Settlement
ADR
For Routine Types of Cases, Attorneys Learn How to Predict Jury
Outcomes and Reach Settlements Efficiently

What Can Be Done About Disadvantages?

Distortion of Truth and Harassment
Statutes and Rules of Professional Conduct Regulate Improper
Behavior
Attorney Oath (p. 26) You Will Not Wittingly, Willingly or
Knowingly Promote, Sue, or Procure to Be Sued, Any False or
Unlawful Suit, or Give Aid or Consent to the Same; You Will
Delay No Man for Lucre or Malice
Rule 3.1 A lawyer shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless there is a basis
for doing so that is not frivolous
Rule 3.3 A lawyer shall not knowingly: (1) make a false
statement of law or fact to a tribunal; ... (4) offer evidence
that the lawyer knows to be false

In defending a lawsuit for breach of contract, a

lawyer may:
Deny the breach in order to delay payment of the amount owed in the
contract.
Call a witness who the lawyer knows is not telling the truth.
Ask for a delay of the trial for personal reasons.
None of the above.

Lawyers Also Need Professionalism and Civility

See McElhaney Articles on Way to GoToo Far and Mootcourtitis (pp. 28-32)
The Importance of Client Control
A Lawsuit is Not a Nuclear War
A Lawyers Reputation is the Lawyers Most Valuable Asset
The Practice of Law is Like a Small Town with a Long Memory
Clients Come and Go, But Youll Have to Deal With Opposing Counsel
in Future Cases

Reasons for Studying Legal History

See Fed. R. Civ. P. 2 There is one form of actionthe civil action. You
Need to Know Legal History to Understand What This Means.
Modern Cases May Turn on What the Old Law Was. Examples:
Statutes of Limitations are Based on the Forms of Action
Right to Jury Trial
Whenever There Is a Peculiar Rule, Its Probably Because of History

Feudal System
Knights Decided Disputes Between Serfs
King Became the Head Knight
Modes of Trial
Ordeal
Combat
Compurgation
Jury

Development of Kings Courts

Criminal Law
Developed Through Concept of Breach of the Kings Peace
Civil Actions
Developed Through Issuance of Writs
Kings Representative Had Authority to Issue Writs to Compel Persons
to Go to Kings Courts to Have Disputes Resolved
Disobedience of Writ Was Breach of Kings Peace

Writ of Trespass
From the King to the Sheriff Ordering B to Come to Court to Show Whether
B Used Force and Arms
Beat, Wounded and Ill Treated (Assault) A
So That As Life Was Threatened
Against the Kings Peace
Other Writs Covered Other Kinds of Trespass (de bonis asportatis for
personal property, quare clausam fregit for land)

Other Writs
Trespass on the Case Negligence
Detinue Return of Money or Property
Trover Conversion of Property
Special Assumpsit Breach of Contract
General Assumpsit Unjust Enrichment
By 1800's There Were 72 Varieties of Writs

Courts of Equity
These Developed Alongside Courts of Law to Fill in Gaps Between Writs
At First They Were Fairly Arbitrary, But Eventually Developed Precedents
Limits on Equitable Jurisdiction
No Adequate Remedy at Law
Balancing of Hardships
Defense of Unclean Hands

September 7, 2016
Adversary System
Active Advocates, Passive Judges
The Parties (Through Their Attorneys) Control What Issues the
Judge or Jury Decide, But the Judge or Jury Has Complete
Control Over the Final Decision.
Based on Claims of Right Established Through Proof and
Reasoned Argument

Review
Adversary System
Advantages of Adversary System
Each Side Has Incentive to Present Its Case As Effectively as
Possible
Neutrality of Decision-Maker Assures Fairness
Disadvantages
Cost and Inefficiency
Distortion of Truth and Harassment

Review
Ways to Address Disadvantages of Adversary System
Cost and Inefficiency
Experience
Promoting ADR and Settlement
Distortion of Truth and Harassment
Statutes and Rules
Professionalism and Civility

Review
Legal History
Two Systems of Courts Developed in England Law and Equity
Courts of Law
Based on Writ System
Writs Covered Various Factual Situations Where Royal Authority
Would Intervene
Law of Torts, Contracts etc. Developed Out of Writs
Examples Trespass, Case, Debt, Detinue, Special and General
Assumpsit
72 Writs Developed By the 1800s

Courts of Equity
These Developed Alongside Courts of Law to Fill in Gaps Between Writs
At First They Were Fairly Arbitrary, But Eventually Developed Precedents
Limits on Equitable Jurisdiction
No Adequate Remedy at Law
Balancing of Hardships
Defense of Unclean Hands

Differences Between Courts of Law and Equity

Remedies
Law Money Judgments, Recovery of Specific Property (Replevin for
Personal Property, Ejectment for Real Property)
Equity Equitable Decrees, Including Injunctions, Specific
Performance of Contracts, Rescission and Reformation of
Contracts
Trial
Law Jury
Equity -- Chancellor
Enforcement
Judgments Enforced Through Execution
Equitable Decrees Enforced Through Contempt

Procedure in the United States

The English System Came Over With the Colonists
During the 19th Century, the Field Codes Reformed Civil Procedure to
Simplify the System
The Federal Rules Made Further Reforms in the 1930's
Fed. R. Civ. P. 2 Reflects the Reforms in its One Form of Action. This Applies
to Suits at Law and in Equity.
But see the Delaware Constitution, which provides for a Court of Chancery.

Pleadings
The Legal Process Begins With the Exchange of Papers That Frame the
Issues to Be Decided.
The Plaintiff Must File a Complaint (Petition) That Sets Forth the Basis for
the Claim
Every Claim Raises 2 Issues:
If the Facts Specified in the Complaint Occurred, Does the Law
Provide a Remedy?
Did the Facts Occur?
The Answer to the First Issue Depends on the Substantive Law.
The Answer to the Second Issue Depends on the Proof Offered.

In Fuchs v. Fleetwood (p. 40), the court decided that:

The case was barred because the plaintiffs filed the Entry of Appearance too
late.
The Entry of Appearance was inadequate to commence the lawsuit.
The Amended Petition was inadequate to commence the lawsuit.
In Hervey v. American Airlines (p. 43), the court dismissed the case
because:
The plaintiffs did not prove they were harmed by American.
The plaintiffs did not assert that American was negligent for failure to warn
them of weather conditions.
There was no legal theory that supported the plaintiffs claims.

In Doyle v. Sprint/Nextel (p. 44), the court dismissed

the case because:
Sprint had nothing to do with the accident.
Sprint was not responsible because Hill was at fault for talking on the cell
phone.
Sprint could not foresee the possibility of an accident.
Sprint had no legal duty to Doyle.
Doyle was not using Sprints cell phone.

Pleading Subject Matter Jurisdiction

Randazzo (p. 46)

This Case Was Filed in Federal Court Based on Diversity of Citizenship

Federal Courts Have Limited Subject Matter Jurisdiction and They
Require Plaintiffs to Allege the Basis of Jurisdiction Properly
Under 28 U.S.C. 1332, the Parties on the Opposite Sides of the
Lawsuit Must Be Citizens of Different States

Randazzo
For a Corporation, Citizenship is Determined by the Principal Place of
Business and State of Incorporation
So The Plaintiff Must Allege the Principal Place of Business and State of
Incorporation of the Corporations In the Case
Form 7 (p. 130) Illustrates How to Plead Diversity of Citizenship Jurisdiction
and You Should Follow It Closely.
See also the Form at p. 65-68 in the Course Materials.

Format of Pleadings Under the Federal Rules

This is Prescribed by Rules 7-10
Pleadings Available
See Rule 7 Complaint, Answer, Pleadings for Third Party Practice
There May Be a Reply to an Answer, If the Court Orders One
Motions Requests for Orders from the Court

Format of Pleadings Under the Federal Rules

Rule 8
Claims Are Found in the Complaint
Statement of Jurisdiction
Statement Showing Pleader is Entitled to Relief
Demand for Judgment
Illustrated in Crump and Berman (pp. 16-17)

Rule 10 Format
General Principle Free Form
Every Pleading Must Have a Caption
Paragraphs Are Supposed to Be Numbered
Paragraphs Are Supposed to Cover Only a Single Set of Circumstances
Adoption by Reference For Cross Reference
Example on Westlaw

September 12, 2016

Review
Rule 7 Types of Pleadings
Complaint (Petition), Answer, Reply to Counterclaim
Not an Entry of Appearance (see Fuchs)
Motions Application for Order
Rule 8(a)

Statement of Jurisdiction
See Randazzo (p. 46)

Review
Rule 8(a)
Statement of Claim
Must Show Claimant is Entitled to Relief
Demand
Rule 10
Format of Pleadings

Responses
A Response From the Defendant is Due 21 Days After Service of the
Complaint. Fed. R. Civ. P. 12(a).
Alternatives Responses Available:
Answer
Motion to Dismiss

Responses
Motion to Dismiss
7 Grounds Listed in Fed. R. Civ. P. 12(b)
If a Motion to Dismiss is Filed, No Answer is Due Until It is Denied
Defenses in Fed. R. Civ. P. 12(b) May Also Be Raised in the Answer,
But the Court Will Not Rule On Them Before Trial Unless There Is
a Motion
Answer
Contains Admissions, Denials, and Affirmative Defenses

Contents of Answers Under the Federal Rules

Fed. R. Civ. P. 8(b)
Admissions
General Denial
Pleader Must Intend In Good Faith to Deny Everything
Discouraged Under Fed. R. Civ. P. 11
Specific Denial

Fed. R. Civ. P. 8(b)

Qualified General Denial
Avoids Problem of Inadvertent Admissions
Specific Admissions With General Denial
Denial on Information and Belief
To Be Used Only If the Defendant Lacks Knowledge or Belief As to an
Allegation
Allegation of Lack of Information or Belief is Treated as a Denial

Fed. R. Civ. P. 8(c)

Fed. R. Civ. P. 8(c)(1) Lists the Affirmative Defenses
An Affirmative Defense Must Be Asserted In the Answer to be an Issue at
Trial
Effect of Pleading Process
The Complaint and Answer Frame the Issues in the Case
Example: Crump & Berman Story
Compare Complaint and Answer (pp. 33-35)

Specificity of Pleading
Under Code Pleading, the Plaintiff Was Supposed to Allege Only the
Ultimate Facts of the Case
Not Evidence Such as Witness Testimony
Too Much Detail
Not Conclusions
Too Vague and General
For Defendant to Be Able to Challenge Complaint With a
Demurrer, Complaint Had to Have Specific Allegations

Problems With Code Pleading

No Clear Line Between Evidence, Conclusions, and Ultimate Facts
Difference is Matter of Degree
Code Pleading Generated Motions Over the Wording of the Complaints

Federal Rules Use Notice Pleading

Excerpt From Bartholet (p. 52) Compares Code Pleading and the Federal
Rules
Under the Federal Rules It Is Not Necessary to Identify a Particular
Legal Theory or Set Out All the Material Facts
The Complaint Merely Provides a Starting Point for the Rest of the
Process

Downside to Notice Pleading

The Complaint May Be So Vague That It Is Difficult to Determine What the
Plaintiff Is Complaining About
Under the Federal Rules, Other Procedures (Discovery, Summary Judgment,
Pretrial Conferences) Can Sort It Out

Notice Pleading
Bennett (p. 53) Emphasizes That Complaints Under the Federal Rules Do
Not Have to Be Long or Contain Legalese
In Fact, Complaints May Violate Rule 8 If They are Too Long

But Federal Courts Are Generally Lenient About Fat and Gibberish in
Complaints

American Nurses (p. 55)

Illustration of Leniency of Notice Pleading
Facts
Employment Discrimination Case
Trial Court Dismissed for Failure to State a Claim

American Nurses
What Is the Plaintiffs Legal Theory?
Comparable Worth
Defendant Pays People in Predominantly Female Jobs (Like Nursing)
Less Than People in Predominantly Male Jobs
Problem Comparable Worth Does Not Violate Federal Law. Plaintiff Must
Allege Employment Discrimination, Rather Than Merely a Discrepancy
in Pay
In American Nurses, the appellate court ruled that the complaint was
sufficient because it alleged:
That men were paid higher wages than women
The state used the percentage of men in a job to determine the wage.
The state maintained unwarranted wage differentials between
predominantly male and predominantly female jobs.
The state did not correct disparities in pay between males and females.

American Nurses
Standard for Dismissal
A Complaint Should Not Be Dismissed For Failure to State a Claim
Unless It Appears Beyond Doubt That the Plaintiff Can Prove No
Set of Facts in Support of His Claim Which Would Entitle Him to
Relief.
If There is Any Basis for the Plaintiff to Recover By Proving the
Allegations, the Complaint Should Not Be Dismissed.
So the Dismissal was Reversed, and the Plaintiff Can Stumble Forward.
Tactics What Did the Defendant Accomplish By Filing the Motion to
Dismiss?
What Should You Get Out of Cases in Law School?

Inconsistency in Pleading
See Fed. R. Civ. P. 8(d)(2), (3)
This Allows for Alternative Pleading and Even Inconsistency in
Pleading
Smith v. Cashland (p. 60)
Title VII Action for Sexual Harassment in Employment

What was the Employers Defense?

The Employee was Not Fired; She Resigned
There were Legitimate Business Reasons for Firing Her, and
She Was Not Fired for Refusing to Submit to Sexual Demands

Smith v. Cashland
The Trial Court Ruled That the Employer Could Not Raise Both Defenses,
Because They were Inconsistent
The Court of Appeals Reversed Because of Fed. R. Civ. P. 8(e)(2) (now (d)(3))
It May Not Be a Good Strategy to Assert Inconsistent Defenses, But It Is
Allowed Under the Federal Rules

September 14, 2016

Review
Defendants Responses
Rule 12(a)
Either Answer or Motion to Dismiss Due 21 Days After Service
Rule 8(b), (c)
Answer with Admissions, Denials, Affirmative Defenses
Denials General, Specific, Denial on Information and Belief,
Qualified General Denial

Review
Notice Pleading
Rule 8 Requires a Short and Plain Statement of the Claim Showing the
Pleader is Entitled to Relief
Not All Elements of a Claim Have to Be Alleged
Conclusions May Be Sufficient, But a Bare Assertion of Liability
is Not
Rule Allows Inconsistency in Pleading

Greater Specificity is Required For Some Cases

See Fed. R. Civ. P. 9
Paragraph (a)
It is Not Necessary to Plead Capacity.
Other Side May Raise the Issue of Capacity, Though

Greater Specificity
Fed. R. Civ. P. 9(b)
Fraud Must Be Pleaded With Particularity
This Requires Allegations of the Time, Place, and Content of the
Alleged False
Representation But Not Malice, Intent or Knowledge
Paragraph (c)

Conditions Precedent May Be Alleged Generally

Other Side May Challenge Them Specifically

Greater Specificity
Paragraph (g)
Special Damages Must Be Alleged Specifically
These Are Damages That Are Out of the Ordinary.
They Generally Include Medical Bills and Wage Losses in Personal
Injury Cases, But Not Pain and Suffering

1. Do the Allegations Satisfy Fed. R. Civ. P. 8?

Yes
No, Because the Substantive Law Does Not Provide a Remedy for These
Facts
No, Because the Allegations Do Not Provide Notice of the Claim
No, Because the Allegations Are Not Plausible

2. Do the Allegations Satisfy Fed. R. Civ. P. 8?

Yes
No, Because the Substantive Law Does Not Provide a Remedy for These
Facts
No, Because the Allegations Do Not Provide Notice of the Claim
No, Because the Allegations Are Not Plausible

3. Do the Allegations Satisfy Fed. R. Civ. P. 8?

Yes
No, Because the Substantive Law Does Not Provide a Remedy for These
Facts
No, Because the Allegations Do Not Provide Notice of the Claim
No, Because the Allegations Are Not Plausible

4. Do the Allegations Satisfy Fed. R. Civ. P. 8?

Yes
No, Because the Substantive Law Does Not Provide a Remedy for These
Facts
No, Because the Allegations Do Not Provide Notice of the Claim
No, Because the Allegations Are Not Plausible

5. Do the Allegations Satisfy Fed. R. Civ. P. 8?

Yes
No, Because the Substantive Law Does Not Provide a Remedy for These
Facts
No, Because the Allegations Do Not Provide Notice of the Claim
No, Because the Allegations Are Not Plausible

6. Do the Allegations Satisfy Fed. R. Civ. P. 8?

Yes
No, Because the Substantive Law Does Not Provide a Remedy for These
Facts
No, Because the Allegations Do Not Provide Notice of the Claim
No, Because the Allegations Are Not Plausible

7. Do the Allegations Satisfy Fed. R. Civ. P. 8?

Yes
No, Because the Substantive Law Does Not Provide a Remedy for These
Facts
No, Because the Allegations Do Not Provide Notice of the Claim
No, Because the Allegations Are Not Plausible

8. Do the Allegations Satisfy Fed. R. Civ. P. 8?

Yes
No, Because the Substantive Law Does Not Provide a Remedy for These
Facts
No, Because the Allegations Do Not Provide Notice of the Claim
No, Because the Allegations Are Not Plausible

9. Do the Allegations Satisfy Fed. R. Civ. P. 8?

Yes
No, Because the Substantive Law Does Not Provide a Remedy for These
Facts
No, Because the Allegations Do Not Provide Notice of the Claim
No, Because the Allegations Are Not Plausible

10. Do the Allegations Satisfy Fed. R. Civ. P. 8?

Yes
No, Because the Substantive Law Does Not Provide a Remedy for These
Facts
No, Because the Allegations Do Not Provide Notice of the Claim
No, Because the Allegations Are Not Plausible

Statutes of Limitations
Provide a Deadline for Filing Lawsuits
Policies
Avoid Reliance on Stale Evidence
Repose for Defendants
Important Point You Dont Have to Wait Until the Last Day
Examples (Okla. Stat. tit. 12, 95, p. 73)

5 years Written Contracts

3 Years Oral Contracts, Actions on Statutes
2 Years Trespass, Personal Injury, Fraud
1 Year Libel, Assault
5 Years Catchall
Examples (pp. 72-76)
93 Real Property: 15 Years for Title, 2 Years for Forcible Entry
109 Construction Disputes: 10 Years After Completion
Okla. Stat. tit. 51, 156-157 Governmental Tort Claims: 1 Year Period to
File Claim, and 6 Months After Denial to File Lawsuit

Issues Involving Statutes of Limitations

Which Category?
When Does Period Begin?
Tolling
Estoppel
Savings Statute
What is Required Within the Statutory Period?
Choice of Law

Which Category?
Meade (p. 77)
Facts
1983 Claim for Violation of Civil Rights
Based on Denial of Medical Attention and Beating of Prisoner in
a Municipal Jail
When Did Beating Occur?
March 25, 1983
When Was the Complaint Filed?
July 3, 1984

Meade
Whether the Claim Was Barred Depended on Whether There Was a 1 Year
or 2 Year Statute of Limitation. How Do You Tell?
Look to State Law. What is the Closest Analogy?
Assault and Battery 1 Year
Personal Injury 2 Years
Apply 2 Year Statute Because Personal Injury is Broad Enough to
Cover Both Negligent and Intentional Injuries to Civil Rights
Plaintiffs
Consider 28 U.S.C. 1658 (p. 556)
See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004) (4 year
limitation period applies after amendment of a statute if the
amendment made the claim possible)

When Does Period Begin?

See 95 After the Cause of Action Shall Have Accrued

Samuel Roberts (p. 80)
Facts
Landowner Sued Soil Engineer After the Buildings Foundation
Moved.
When Was Suit Filed?
January 23, 1989
When Did Plaintiffs Claim Accrue?

Samuel Roberts
Which Statute of Limitation Applies?
Breach of Contract 5 Years
Tort Claim for Construction Dispute 10 Years
Professional Malpractice 2 Years

Samuel Roberts
Contract Action
When Did the Breach of Contract Occur?
Soil Engineering Was Done in July, 1983
So the Contract Action Would Be Barred, Since Filing Was More
Than 5 Years Later
But the Plaintiff Claimed Soil Engineer Did Additional Work in
February, 1984
The Case Was Remanded for the Trial Court to Decidevi

September 19, 2016

Review
Fed. R. Civ. P. 8(d)(2), (3) Allows Inconsistency in Pleading
Fed. R. Civ. P. 9 Special Rules
Capacity
Fraud or Mistake
Time, Place and Content of False Representation
Conditions Precedent
Special Damages

Review
Statutes of Limitations
Provide Deadlines for Filing Lawsuits
Various Limitations Periods are Found in Okla. Stat. tit. 12, 95 and
the Other Statutes
Issues Involving Statutes of Limitation
Which Category?
Find Closest Analogy
When Does Period Begin?
Accrual

Samuel Roberts (p. 80)

Facts
Action Arising Out of Construction Dispute Was Filed on January 23,
1989
2 Theories
Breach of Contract
Tort
Summary Judgment on Contract Theory Was Reversed, Because the
Cause of Action May Not Have Accrued Until February 1984.

Samuel Roberts
Tort Action
Okla. Stat. tit. 12, 109
Claim Was Brought Within 10 Years of Completion
But This is a Statute of Repose, Rather Than a Statute of
Limitation
What is the Difference Between Them?
A Statute of Repose is Measured From Some Other Time
Besides the Accrual of the Claim

Samuel Roberts
Tort Action
Plaintiff Must Also Satisfy the Tort Statute of Limitation
What is the Limitation Period?
2 Years
From When?
General Rule When Claim Accrues.
This Means When Each Element of the Claim Has Been
Satisfied.
Under the Discovery Rule, It is From the Date When the Plaintiff
Knew or Should Have Known of the Injury.
What Was the Date of Discovery?
August, 1984
So the Tort Claim Was Barred

Slawson (p. 85)

How Do You Count Time?
Date of Auto Accident?
July 19, 2008
Date of Filing?
July 20, 2009
Nevertheless, the Oklahoma Supreme Court Held the Filing Occurred
Within a Year. Why?

Tolling
Tolling Means the Statute of Limitations is Suspended After the Claim Has

Accrued
See Okla. Stat. tit. 12, 94, 96, 98
1 Year After Removal of the Disability
Example Minor Has 1 Year From Age of Majority (18) to Bring
Action
Exception for Medical Malpractice Cases 7 Years From
Infliction of the Injury
Absence of Defendant Exception in Last Sentence Swallows the Rule

Smith v. Yell Bell Taxi (p. 87)

When Did Claim Arise?
March 1, 2000
When Was Suit Filed?
November 29, 2001

Smith v. Yell Bell Taxi

What Was the Defendants Argument for the Claim to Be Barred?
The Plaintiff Was Required to File the Case Within One Year After He
Turned 18 on October 22, 2000 Under KSA 60-515(a)
Ruling of the Court?
Plaintiff Had 2 Years From the Accident to File the Action

Equitable Estoppel and Equitable Tolling

Ashafa (p. 89)
Facts
Civil Rights Action Against the City of Chicago Arising Out of
Police Beating the Plaintiff During an Arrest

Asafa
Date Claim Arose
August 11, 1994
Date of Filing of Complaint?
March 20, 1997
Limitation Period?
2 Years

Equitable Estoppel
Definition
Equitable Estoppel Prevents a Party From Asserting the Expiration of
the Statute of Limitations as a Defense When That Partys
Improper Conduct Has Induced the Other Into Failing to File
Within the Statutory Period.
It Requires a Defendant to Take Active Steps Such as Destruction of
Evidence or Promises Not to Plead the Statute of Limitations as a

Defense
It Also Requires the Plaintiff to Show Actual and Reasonable Reliance
on the Misconduct

Equitable Estoppel
Application to Facts?
City Did Not Reveal Names of Officers to Plaintiff When He Asked For
Them
But It Never Represented That It Would, and So There Was No
Fraudulent Conduct

Equitable Tolling
Definition
Equitable Tolling Applies When a Plaintiff, Despite the Exercise of
Due Diligence and Through No Fault of His Own, Cannot
Determine Information Essential to Bringing a Complaint.
It Also Requires a Plaintiff to Exercise Due Diligence in Bringing His
Claim

Equitable Tolling
Application to Facts?
Plaintiff Needed Names of Officers to Bring His Lawsuit
But Plaintiff Learned Names of 3 Officers on May 4, 1995, And He
Didnt Sue Until Almost 2 Years Later

Savings Statute
Okla. Stat. tit. 12, 100 (p. 74)
This Allows a New Action to Be Filed Within 1 Year of the Dismissal of
Earlier Action Other Than On the Merits
Dismissal Other Than On the Merits May Occur if the Plaintiff
Dismisses Voluntarily or the Case Was Filed in the Wrong Court

Savings Statute
Other Limitations on 100
Original Suit Must Have Been in an Oklahoma State or Federal Court.
Herron v. Miller, 96 Okla. 59 (1924).
The Plaintiff May Rely on 100 Only One Time. Fishencord v.
Peterson, 94 P.2d 910 (1939).

Hug (p. 92)

Date of Injury?
August 18, 2000
Date of Filing of 1st Action?
September 22, 2000
Date of 1st Dismissal?

May 30, 2001

Hug

Date of Filing of 2nd Action?

August 8, 2002
Date of 2nd Dismissal?
October 6, 2005
Date of Filing of 3rd Action?
October 4, 2006
Was the 3rd Action Barred by the Statute of Limitations?