solicitation of pontifications Forum

[portaprokoss]

It seems like there is this weird spot in civ. pro. where you don't have enough info to to survive 12b6, or maybe you can't even figure out the person you need to sue, but you could get at that info if you had discovery. A spot where a prospective litigant needs at least some sort of limited discovery before he has enough info to plead. A lot of my prof's hypos deal with situations like this. Any thoughts? Any mechanisms for dealing with this kind of situation. 27 kinda goes in that direction, but not quite.

[ben4847]

I'd deal with it by granting the motion to dismiss.

[portaprokoss]

I'd deal with it by granting the motion to dismiss.

But what if that person has a case, they just need to figure out the maker of the product that killed their kid, but the guy who has that info isn't cooperative? Or there is a heightened pleading standard, or you're going against someone with some sort of qualified immunity that protects them from federal suits in the absence of detailed allegations?

I don't think a prof is looking for "12(b)(6) their punk ass out of court."

[Renzo]

It sounds like your professor is mad about the Iqbal/Twombly pleading standard, which basically says such cases get thrown out. The Supreme Court's answer to those situations is "tough luck. Maybe you can hire a private investigator, and get enough facts to get into court."

[portaprokoss]

Not really TwIqbal, these sort of things wouldn't even survive regular notice pleading under 8 sans the new fed. doctrine. More like the party can't find the name of the person they are trying to sue because other people are withholding the info.

Here's an example:

While reading these materials, think about the methods of
discovery that might be used by the plaintiff and defendant in the
following situation: A client appears in your office. She tells
you that she was injured when a dynamite cap blew up while she was
crimping it to a stick of dynamite as part of her work as a laborer
on a road-building crew. She is not sure who made the dynamite
cap. Her supervisor, who does not like her, will not tell her
anything. She cannot sue her employer, who is providing workers’
compensation and who enjoys immunity from tort claims by injured
employees. She wishes to identify and sue the manufacturer of the
cap. How can she use discovery to identify the manufacturer? If
she manages to identify a proper defendant, how is she likely to
want to use discovery to develop her case? What discovery is the
manufacturer-defendant likely to pursue?

[ben4847]

Not really TwIqbal, these sort of things wouldn't even survive regular notice pleading under 8 sans the new fed. doctrine. More like the party can't find the name of the person they are trying to sue because other people are withholding the info.

Here's an example:

While reading these materials, think about the methods of
discovery that might be used by the plaintiff and defendant in the
following situation: A client appears in your office. She tells
you that she was injured when a dynamite cap blew up while she was
crimping it to a stick of dynamite as part of her work as a laborer
on a road-building crew. She is not sure who made the dynamite
cap. Her supervisor, who does not like her, will not tell her
anything. She cannot sue her employer, who is providing workers’
compensation and who enjoys immunity from tort claims by injured
employees. She wishes to identify and sue the manufacturer of the
cap. How can she use discovery to identify the manufacturer? If
she manages to identify a proper defendant, how is she likely to
want to use discovery to develop her case? What discovery is the
manufacturer-defendant likely to pursue?

Are you sure that the professor is looking for a way around 12b6? The problem you face here is that you don't know who to sue, not that you don't have sufficient information to allege a cause of action.
And in the second part, it still is not clear that he is looking for a way around 12b6.

[Renzo]

Yeah, this has nothing to do with 12(b)(6) or pleadings, but about discovery procedures.

[portaprokoss]

Yeah, this has nothing to do with 12(b)(6) or pleadings, but about discovery procedures.

Except for the part where she can't file her case because she doesn't have enough information...

[Mce252]

I would just sue my supervisor directly (or someone else that could have possibly been responsible) and then use the court to get subpeonas to depose whoever I need to in order to get to the manufacturer.

[Renzo]

Yeah, this has nothing to do with 12(b)(6) or pleadings, but about discovery procedures.

Except for the part where she can't file her case because she doesn't have enough information...

The question isn't "how do I plead this so as to not get thrown out?" or "how much information do I need?" Those would be pleadings issues. This is, "how do I get enough information to sue?" And the answer is MCE's, above: sue the supervisor personally, and either depose the supervisor or issue a third-party subpoena to the corporation to get the info of the supplier.

After you have the information, you aren't "getting around" anything, you are just pleading what you need to stay within the rules.