Law School Discussion

Civil Procedure Hypo

Civil Procedure Hypo
« on: March 21, 2007, 06:38:57 AM »
Hello. Can anyone help me with this hypo? It's a long one! I'm
really stuggling with it and appreciate any help anyone can give

Assume jurisdiction exists and discuss only matters addressed in
this course. Use IRAC form in answering.

Susan Outrage, a citizen of the state of Grace, was a machinist in
the Grace City textile mill owned and operated by NoUnion Industries
(NOUI), a citizen of the state of Confusion. She received excellent
performance reviews until Dave Lout replaced her retiring supervisor
in 2003. Lout repeatedly told Outrage she was "hot," asked her for
dates, and brushed up against her body whenever he could. She told
him to "lay off" and that she had no interest in him. NOUI has a no-
sexual harassment policy that called for an employee to complain
about improper conduct with his or her supervisor. Outrage wrote a
note describing Lout's conduct to Lout's boss, Irwin Indifferent.
Indifferent did nothing in response. At her performance review
interview, Lout told her, "I can make life easy for you here or
very hard." He came around the desk, put his arms around her, then
suggested they go to a motel. Outrage pushed him away and told him
to "get stuffed." She was fired on March 14, 2003, two days later,
after she received an "unacceptable" review. She received a further
nasty shock when her final paycheck was docked for vacation time she
had taken in 2003 and believed she was entitled to. Lout was allowed
to resign after an internal investigation but given a hefty
severance bonus.

Applicable federal law creates a cause of action against an employer
for sexual harassment by a supervisory employee, with a three year
statute of limitations, if the alleged conduct, which must be
offensive to a reasonable person, is either severe or pervasive or
if it conditions the terms of employment on sexual favors; there is
an affirmative defense if the employer has in place a reasonable
policy against sexual harassment and the employee unreasonably fails
to use it. The statute provides for punitive damages if the
violation is willful. A Grace state wrongful discharge statute has a
two-year statute of limitations. Grace state law also proves for
claims on the basis of intentional infliction of emotion distress
with a five-year statute of limitations.

After obtaining authorization to sue from the state human rights
agency, Outrage, alleging the facts above, sued NOUI in federal
district court on March 14, 2007, under (1) federal sexual
harassment law (Count I), (2) a state intentional infliction of
emotional distress claim (Count II), (2) a state fraud count for
docking her paycheck (Count III). She asked for $100,000 in
compensatory damages and $10,000,000 in punitives, and attorneys'
fees as part of costs.

Two weeks later, NOUI filed a motion to dismiss on grounds of (1)
inadequate pleading under Rule 8(a) because in her Count I Outrage
had only alleged that NOUI had "discriminated against her because of
sex" and in Count II she had not specified the emotional injuries
she had allegedly suffered, and in both she had not set forth the
facts showing that she had a cause of action, (2) inadequate
pleading under Rule 9(b) in her Count III because her fraud claim
was not pleaded with particularity, (3) arguing that the harassment
claim should be dismissed for failure to state claim because, as
matter of law, Lout's conduct as described in Outrage's complaint
was neither offensive to a reasonable person or severe or pervasive,
and that the state law claims should be dismissed if the federal
claim was dismissed. [You need not address the jurisdictional issues
involved here.] The Court denied the motions except as to the fraud
claim, which it dismissed without prejudice. A week later Outrage
filed an Amended Complaint that re-alleged the fraud claim with
great detail, explaining about her vacation pay. She also moved
instanter to add a wrongful discharge claim (Count IV) to the
Amended Complaint and to ask for a jury trial.

Twenty days later NOUI Answered. It denied all of Outrage's
allegations, and listed as affirmative defenses that (1) the fraud
claim failed to state a claim on which relief could be granted, (2)
the wrongful discharge claim was time-barred, (3) Outrage had waived
her right to a jury trial, (4) her request punitive damages was
unconstitutional, and (6) that Outrage had been fired because poor
performance and insubordination, not because she refused Lout's
advances. Outrage filed a Reply stating, among other things, that
the "poor performance" excuse was a patent pretext but the Court
declined to accept it.

NOUI then moved for judgment on the pleadings to dismiss the claims
challenged in the Answer, and Outrage responded. The District Court
(1') dismissed the fraud claim, (2') declined to dismiss the
wrongful discharge claim, (3') granted without comment NOUI's motion
to deny Outrage's request for a jury trial, and (4') declined to
rule on the question about punitive damages. Three weeks later, NOUI
moved in the District Court to amend its Answer to assert the
affirmative defense that it had a reasonable sexual harassment
policy and Outrage had failed to avail herself of it. Over
Outrage's sharp objection, the District Court allowed the amendment.

Assess the adequacy of the pleadings and motion practice surrounding
them and correctness of the Courts' dispositions of the various
motions, identifying relevant Rules and principles, and discussing
alternatives where relevant.

The parties then initiated discovery. In her initial disclosures,
Outrage disclosed three witness to Lout's loutish behavior towards
her, but not to the "let's go to the motel" conversation, during
which she was alone with Lout, and which she described in an
affidavit. She disclosed as witnesses Lout and Lout's boss
Indifferent, and she produced a written diary of the events and a
damages computation for her compensatories. She retained but did not
disclose at that time a psychological expert on the traumatic
effects of sexual harassment on working women.

At Outrage's request, NOUI designated a corporate human relations to
testify about the company's sexual harassment policy. It also
produced an affidavit by Lout stating that Outrage had come on to
him. NOUI interviewed on its own another employee, Samatha
Slimeball, who was willing to testify that Outrage had told her,
after she had filed her complaint with Indifferent, that she
(Outrage) thought Lout was "kinda cute," and that she had seen them
holding hands in the plant cafeteria; this witness and her testimony
they did not disclose under the end of discovery. At that point
(when NOUI attempted to introduce Slimeball's testimony in a motion
for summary judgment) Outrage demanded and obtained an order barring
her testimony.

After a discovery conference, document production and depositions
ensued. Outrage sought (1) all the documents relating to complaints
of discrimination of any kind lodged against the employer in all its
facilities for the last ten years, (2) including all sexual
harassment complaints filed at the Grace City plant and (3) their
disposition (if any) under the firm's policy, (4) including the
terms of Lout's severance settlement. NOUI objected that this
requested was irrelevant, overbroad, oppressive, and contained
privileged material, including matter that was sensitive to the
other alleged victims of harassment, as well as attorney-client
communications and work product relating to the handing of the
cases. The Court ruled that these objections were valid with regard
to (1) but not to (2)-(4), except for any attorney-client privileged
documents or papers containing attorney mental impressions under (2)-
(3). Outrage asked for sanctions including attorney's fees for
litigating this motion, which were denied.

NOUI for its part sought Outrage's psychological and psychiatric
medical records; she objected that these were physician-client
privileged and sought a protective order barring their disclosure,
but the Court ruled that they must be produced, albeit only in
camera. NOUI's request for attorney's fees for litigating this
motion was granted. The company also sought a mental examination of
Outrage, which the Court denied. In the course of these proceedings
NOUI learned of the existence of Outrage's psychological expert, and
submitted a motion in limine to bar her testimony for failure to
disclose the witness. That motion was denied.

In the course of depositions, the parties and witnesses related
their accounts of what happened. Indifferent refused to participate
voluntarily and his presence and testimony had to be compelled. At
NOUI's counsel's advice, Lout initially refused to testify, citing
the terms of his settlement agreement as establishing a privilege,
but after conference failed, Outrage's counsel obtained an order
from the court compelling his testimony, and on a motion, won
attorney's fees for litigation of that motion. Outrage asked NOUI's
HR expert about the financial state of the company and its profits
for the last several years; over counsel's objections that this was
outside the scope of his testimony, the HR official stated that he
had seen the Annual Reports, according to which the company made an
average $300 million in profit over the last five years.

Assess the counsel's conduct of discovery and the Court's
determinations of any discovery disputes, identifying relevant Rules
and principles, and discussing alternatives where relevant.

Thank you for your help!


Re: Civil Procedure Hypo
« Reply #1 on: March 21, 2007, 09:52:38 AM »
this is a joke right?
most people won't read the entire question (myself included)
and even fewer will probably formulate a response to what looks like an entire practice test.

discuss it with your classmates if need be, work out an answer then bring it your civ pro prof.

Re: Civil Procedure Hypo
« Reply #2 on: March 21, 2007, 10:51:36 AM »
OP = jackass.

Ronald Hyatt

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Re: Civil Procedure Hypo
« Reply #3 on: March 21, 2007, 11:13:16 AM »
The answer is that it is barred for two reasons:

1) It violates the Rule Against Perpetuities because there is no life in being to measure against.
2) It violates the Statute of Frauds because, although there is a writing it isn't signed by the party against whom enforcement is sought.

Any questions?

Re: Civil Procedure Hypo
« Reply #4 on: March 21, 2007, 11:21:39 AM »
I have a you think the fertile octogenarian and the unborn widow make a good couple?

Ronald Hyatt

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Re: Civil Procedure Hypo
« Reply #5 on: March 21, 2007, 11:23:13 AM »
only in Utah?