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FALL 2009 CIV PRO EXAM 1(a) When filing a pleading, the claim must contain issues of law

and fact for the court to resolve. The pleading requirement stipulated in R8 is a short and plain statement of the claim. Conley and Leatherman applied this standard. However, Twombly and Iqbal changed the pleading requirements that are required by the court. When analyzing the pleadings, the court first looks for conclusory allegations not supported by well-plead facts and disregards them. Second, the court accesses the plausibility of the remaining wellplead facts based on the Twombly and Iqbal standards of whether or not the plead facts move the claim from possible to plausible. From this complaint, it is likely that the court would grant the 12(b)(6) motion with leave to amend the complaint. First, the court would remove any conclusory allegations from the complaint. The claim the secret service officers unconstitutionally excluded Pam and Pete from a traditional public forum is a conclusory allegation. Pam and Pete have plead no facts that directly link the secret service agents to the removal of Pam, Pete, and the rest of the antigovernment protestors. In addition, Pete and Pam allege that their removal was pursuant to an unconstitutional Secret Service policy. There are no facts supporting this allegation. Pam and Pete further allege that the secret service officers requested or directed the police officers specifically to remove the anti-government protestors. Again, Pam and Pete have plead no facts that support that the secret service directed the police to remove the protestors. Pam and Pete would have to plead several additional facts to save the complaint. First, to support the allegation that the antigovernment protestors were unconditionally excluded per request or direction from the secret service agents to the police, they would have to plead facts that directly link the secret service agents to their removal. They would have to plead facts that establish a communication between the police and secret service agents regarding the protestors. In addition, to establish the existence of a unsconstitutional policy of the secret service, Pam and Pete would have to allege facts that show a repeated instances where antigovernment protestors were removed from the immediate surrounding s of the president, but the pro-government protestors were not removed (See Adickes where Adickes would have had to show that there was indeed a recurrence of restaurants refusing to serve mixed-race groups dining together in the state of Mississippi to successfully allege facts to

support that Mississippi actually had a policy of not serving black and white people together.) 1(b) Along with their R12(b)(6) motion, the defendants would have to bring their 12(b)(2) lack of personal jurisdiction, 12(b)(3) improper venue, 12(b)(4) insufficient process, and 12(b)(5)insufficient service of process motions at the same time or they would all be waived pursuant to R12(h). They could bring R12(b)(1) if they see fit, but could also bring that motion anytime they want throughout the trial pursuant to rule 12(h)(3). Pam and Pete could definitely also bring a R(12)(b)(7) motion for failure to join a party under R19 because their co-agent Agent Gibson, who is not currently a party to the claim, should be under R19 because Gibsons absence would not afford the plaintiff complete relief. If the R(12)(b)(7) motion failed to join Gibson, then the defendants could motion to implead Gibson under R14, alleging derivative liability that Gibson made the call to direct the police to move the protestors, so if the defendants could be found liable for perpetuating a policy, that Gibson was derivatively liable because Gibson had order the policy to be enforced. Also, the defendants would want to bring a Rule 11 motion for sanctions against Pam and Pete. They could argue that Pam and Pete have filed a claim that is for an improper purpose under R11(b)(1). It is clear that Pam and Pete are anti-government protestors and the defendants may draw an inference that their claim was filed moreso for the purpose of harassment than to request a claim for relief. The defendants could also contend Pam and Petes claim is frivolous under 11(b)(1) because the claim is not well supported by law.

2. Agent Gibson will be able to be added to the suit. Because the SOL has not run, R15(c)(3) does not apply. Rule 15(a)(2) provides that a pleading can be amended when justice so requires it. Pete and Pam can argue that justice would require the amendment of the pleading to add Agent Gibson to their complaint because Agent Gibson was arguably more liable for the protestors being moved than the other two agents and they would have named him if they learned his identity sooner. They will further argue that Gibson knew or should have known that he would be a party to the litigation after the attorney interviewed him about the incident, further shown by the fact that he admitted that he was surprised that he was not named in the original pleading.

Pete and Pam could not amend their complaint to add officers Baldridge and Ingram as defendants. According to R15(c)(2), a new claim will relate back to the original complaint if it arises out of the same conduct, transaction, or occurrence set forth in the original pleading. Although the claim in theory arises out of the same occurrence in which the protestors were moved, no allegations as to the police forces treatment of the anti-government protestors, specifically Pam and Pete were set forth in the original claim, therefore the new claims cannot be added. Also, according to R15(c)(3) the police officers would have had to have notice of the original claim within the period provided in R4, and knew or should have known, but for a mistake, that the original action would have been brought against them. Because the original action only lists the secret service agents as defendants and the original complaint only asserts allegations against the secret service agents, the officers level know requisite knowledge would not satisfy R15(c)(3). Agent Gibson is properly joined pursuant to Rule19 as a necessary and indispensible party to the suit. Gibsons absence would prevent complete relief for the plaintiffs because he is arguably the most liable

3. No, Agent Gibson would not be allowed to assert a cross claim against Agent Chopra. Under R13(g), a cross claim can be brought against a co-defendant when the claim arises out of the same transaction or occurrence. In this instance, the present action to which both are parties is the action initiated by Pete and Pam regarding the Agents involvement in the removal of the antigovernment protestors from the surrounding area of the President. Although the bar fight between Gibson and Chopra may have happened in the same city on the same day, it did not arise directly out of the situation of the removal of the protestors. 4. Interrogatory 3: In regards to interrogatory #3, the defendant will argue that the information requested is irrelevant. This case is similar to Blank, where Blank was making a claim against Sullivan directly regarding a policy of sexually discriminatory hiring practices. Blank requested

information pertaining to Sullivans promotional practices, which Sullivan alleged was irrelevant to Blanks claim. However, the court allowed the requested information to be discovered because, although not directly relevant, discriminatory promotional practices could be reasonably calculated to lead to the discovery of admissible evidence about whether Sullivan, as a matter of overall policy sexually discriminates and therefore would be likely to discriminate in hiring as well. Similarly, in this case, information about how the police have treated protestors in their control in the past or information of people that would reasonably have discoverable information pertaining to the past treatment of protestors under the control of the Elk City Police department will likely be held by the court to be reasonably calculated to lead to lead to the discovery of admissible evidence that may corroborate Pete and Pams claims of poor treatment. Therefore, the court will likely grant the motion to compel. However, the plaintiffs should drop point (d) from their interrogatory because it is non-specific and helps the defendants claim that the request is unduly burdensome.

Document Request #5: The photos are likely to be ruled to be discoverable under R26(b). The photos/images are not protected as work product or for attorney-client privilege under R26(b). Therefore, the court could rule that the information requested is discoverable. In order to recover the requested documents, plaintiff will have to prove that they have a substantial need for the photos/images to adequately prepare their case and that without the photos/images being produced they would be faced with an undue hardship to obtain a substantial equivalent. This may require the plaintiff to prove that there is no other source from which to obtain photos of the protests to show good cause for the production of the photos. If they could show that there is no way to get a substantial equivalent, then the defendant may be required to produce the photos. The defendant will contend that the burden of the discovery outweighs it potential benefit pursuant to R26(c)(3), however the plaintiff will argue that because of the imbalance of resources between the plaintiff and the defendant, that the defendant is well suited with plenty of resources to handle this discovery request and also that direct images of the protest are much more probative than prejudicial because they do not rely on a testimony/statement of a witness, they simply show what was actually happening.

Document Request #8: The policy guidelines regarding police procedure at protests are likely to be ruled discoverable. Because the policy guidelines regarding police procedure at protests are done within the course of regular business and were not prepared in anticipation of litigation, therefore they are not considered work product and would be discoverable. However, the defendants will argue that the memorandum provided by internal and external Elko City PD attorneys are privileged, but if they are not considered to fall under attorney-client privilege then they are work product. To invoke attorney-client privilege, the requested information must be (1) a communication, (2) kept in confidence, (3) between attorney and client, and (4) for the purpose of soliciting legal advice not in furtherance of committing a crime. In addition, the memorandum must appear in the privilege log kept by the defendants. The memorandum is a communication, which is presumably kept in confidence, between the attorneys and client (Elk City PD) for the purpose of following internal policy guidelines. The memorandum appears to be privileged and therefore are not discoverable. If however, Plaintiffs stick with their argument that the memorandum is work product, then the court would have to find that the memorandum were produced by the attorneys in anticipation of litigation in order to protect the documents. In Hickman, the information requested was considered WP. The defendants will argue that, unlike Hickman, the memorandum was not prepared in anticipation of the litigation and they are likely to prevail. There is no proof that it was indeed prepared in anticipation of litigation. If the memorandum is not considered protected work product doctrine, then the defendant can move to redact mental impressions, conclusions, opinions, or legal theories of the attorneys, if any exist under 26(b)(3)(b). 5. The standard to grant summary judgment is the movant show that there is no genuine issue of material fact in order to be entitled to summary judgment as a matter of law. In the MP has the burden of proof at trial, then the initial burned of production on the MP is to produce evidence demonstrating that there are no genuine issues of material fact. If the NMP had the burden of proof at trial, then there are two standards for what the MP must initially produce. The Adickes standard says that the MP must initially produce affirmative

evidence negating the claim. The Celotex standard says that the MP must initially only point to the lack of a genuine issue of material fact (no affirmative evidence required). In response to the MPs motion for summary judgment, regardless of who has the burden of proof at trial, the NMP must produce evidence showing there IS a genuine issue of material fact remaining. The NMP can do this by (1) directing the court to new evidence/evidence ignored by the MP, (2) rehabilitate evidence attacked by the MP/attack evidence relied on by the MP or (3) request additional time for discovery. Baldridge motion for SJ: Officer Baldridges motion for summary judgment will be denied. To meet his burden of initial proof under the Celotex standard, Officer Baldridge would have to either point to a LACK of a genuine issue of material fact in Petes evidence as to whether the degree of force used by Officer Baldridge was not objectively reasonable under the circumstances or present affirmative evidence of a lack of material fact to the same point to win his motion for summary judgment . Pete and Officer Baldridge have presented different sets of facts as to what occurred. Officer Baldridge says that Pete threatened the use of a firearm. Pete denies doing so. Officer Baldridge could point to the evidence that Pete said he was carrying a weapon in his stroller under the Celotex standard. Pete would then have to respond by (1) produce new evidence/present evidence ignored by Ingram, (2) rehabilitate attacked evidence, or (3) request additional time for discovery. Pete could respond with the fact that no gun was indeed found in the stroller and therefore Officer Baldridge went beyond the normal scope of action outline by the policy (the come-along hold). The fact that Pete was not charged with any crime (neither threatening an officer or resisting arrest) is a fact that Pete could respond with negating Officer Baldridges claim that his use of force was reasonable under the circumstances. Whether Pete was a violent threat is a material fact on which the reasonable use of force standard hinges. Therefore, Officer Baldridges motion for SJ will be denied. Pete motion for SJ: As the MP with the burden of proof at trial, in order to meet her initial burden of proof, Pete would have to produce evidence showing that there is GIMF remaining as to whether Officer Ingram used a degree of force not objectively reasonable un the circumstances. Pete could produce evidence affirming that there was not a gun in his

childs stroller and that he suffered a contusion on his forehead from Officer Baldridge pinning his head to the ground. However, Petes motion for summary judgment will likely be denied because there is a genuine issue of fact remaining as to whether or not Pete threatened the use of a weapon so as to raise the objective standard of the use of force allowed by Officer Baldridge.

Ingram motion for SJ: Officer Ingrams motion for summary judgment will likely be granted. In order for his motion for summary judgment to be granted, Officer Ingram must show that there are no material issues of fact remaining as to whether he used an amount of force that was not objectively reasonable. To meet his initial burden of proof according to the Celotex standard, Officer Ingram would have to point to the lack of a GIMF in Pams evidence. The facts show that Officer Ingrahams use of force, the come-along hold is well within the scope of reasonable use because it is specifically designed and intended to all officers to use the minimum necessary force to move arrestees. Further, Officer Ingram could use the Celotex standard to show that the amount of pain is directly correlated with the amount of resistance and point to the fact per the hospital records, that Pam did not suffer any injuries and point to the tape where the only tactic shown to be used by Ingram was in fact the come-along hold. Ingram could instead use the Adickes standard to affirmatively produce the hospital records that present no injury and that the hold was only used after Pam refused to comply with Officer Ingrams request to move and, as stated above, the come-along hold is the tactic that induces the minimum amount of force. It is unlikely that Pam will be able show that the come-along hold was objectively unreasonable. Although Pam could argue that she suffered excruciating pain from the comealong hold, she must respond by (1) presenting new evidence, (2) rehabilitate evidence attacked by Ingram, or (3) attack evidence relied on by Ingram. There is no new evidence with which Pam could negate Ingrams evidence that there is no GIMF remaining. It is unlikely that the court would find a GIMF to remain and the summary judgment for Ingram would be granted.

Pam motion for SJ: As the MP with the burden of proof at trial, in order to meet her initial burden of proof, Pam would have to produce evidence showing that there is GIMF remaining as to whether Officer Ingram used

a degree of force not objectively reasonable un the circumstances. It is unlikely that Pam will be able to affirmatively produce evidence that would allege a GIMF as she was not injured in the altercation and the record is devoid of any additional show of force beyond what is standardly applied when an arrestee refuses to comply.

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