Rule 8, Specific Cases

Zielinski v. Philadelphia Piers (PPI)

• Forklift collided with plaintiff cause him to be injured and to seek damages. In federal court on diversity (since this is a tort case, Yeazell, bottom of p. 384).
• PPI not company really responsible for accident, but plaintiff wants PPI in the case anyway. Wants order saying PPI the operator and employer of person at fault
• A judicially imposed stipulation (deem something to be true that X is true as a matter of law even if not as a matter of fact).
• I.e., just deem PPI as the employer (as "admitted") even though PPI hasn't admitted that.
  
• Will assume admission for purposes of trial.
• Why? Because PPI screwed up litigation in Answer (ineffective denial).
• PPI denied "owned, operated and controlled," and that accident occurred, but other facts show PPI does actually admin accident occurred
• They mistakenly denied whole paragraph, even though they only intended to deny parts.
  
• Also they did own the forklift.
• Two other problems:
  
• 1. Didn't correct Johnson’s misperception of his employer,
  
• 2. Didn't use proper pronoun in Interrogatory 2 (see Yeazell, p. 383, para 7)—said "we"—but actually a company called Carload Contractors did investigation.
• District court avoids attributing bad faith to PPI, thinks of it as careless instead.
• The problem:
  
• Rhe statute of limitations has run, plaintiff can't simply refile (Rule 18?) against different plaintiff by amending complaint.
  
• Also same insurance company covers both PPI and Carload.
  
• Thus, not many economic issues.
  
• Otherwise there might have been a different result.
• Practitioner's Note: Paragraph 5 is a compound allegation lumping everything together, contributing to the problem.
  
• Split up every allegation into its own paragraph.
• Perhaps a little counter-intuitive to see reliance on Pennsylvania court decisions.
  
• But this is all about federal rules of civ pro—and state court principles not included: Hannah v. Plumer. (BUT case PRECEEDES Hannah.
  

Layman v. Southwestern Bell (Affirmative Perry)

• Affirmative defense would be easement, want to introduce documents at trial to show that.
• Plaintiff says defendant should have put affirmative defense in Answer.
• Trial court disagreed, allowed into evidence.
• Court of appeal reverses trial court.
• Why? List in Rule 8 doesn’t mention easements.
• But see 8(c )—other matters that should be considered affirmative defense, list is not exhaustive.
• Is this a new affirmative defense? Or is it just logical? Tricky question.
• See Yeazell's notes, p 389-392.
• Goal is to try to avoid unfair surprises.
  
• Purpose of Rule 8(c ) to clue other side in as to what case is about.
  
• I.e., fair notice and avoiding unjust surprise.
• Implications: how much we should insist on in the Answer may depend on how much is going to be uncovered during the course of discovery that supplements the answer.
  
• This case was unlikely to have much discovery (vs. high-stakes litigation with lots of back-and-forth).
• Why wouldn't phone company go ahead and list easement in the Answer?
  
• If they WANT surprise, not OK with court, not something we protect.
  
• Actually about BURDEN of PROOF—if it's an affirmative defense, then you must prove existence (defendant then has the burden of proof).
  
• Burden of proof usually tracks burden of pleading. See note 5, p. 391.
  
• Can write "deny to the extent that there was an easement"—this kind of language doesn't insist that it's an affirmative defense.
  
• Thus MAY reduce burden of proof possibility.
  
• I.e., doesn’t CONCEDE that issue.