Sunday, May 3, 2015

Multiple Questions & Answers

If a party in a case does not want to disclose, because they believe it is irrelevant under 26(b)(1), can they just object or do they have to file a motion for protective order?  

Initially, the  party just objects. But if the seeking party continues to want the information, the parties eventually must obtain a ruling on the discovery dispute. The producing party only can get that ruling through a motion for a protective order.

As far as mistake of identity is concerned I thought john does do not qualify as a mistake because lack of knowledge is not a defense but in krupski lack of knowledge about the defendants' identity was a mistake because the defendants should have known that they were the ones plaintiff was seeking?

Krupski was not a lack of knowledge case. It was a case in which the plaintiff, wanting to sue the responsible company, believed Costa Cruise was responsible when it turned out to be Costa Crociere. The way the Sixth Circuit distinguished Krupski in Smith v. City of Akron is that mistake does not include a situation in which the plaintiff knows the person/entity he wants to sue, but does not know his name. The plaintiff did not believe the officer's name was "John Doe."

For personal jurisdiction, for determining domicile of an LLC or a Partnership, do we look at its members or PPB/Place of Inc?

It's not clear right now, as lower courts are divided.  Some lower courts say that, for personal jurisdiction purposes, the LLC or Partnership is no different than a corporation, so they look to the same considerations in establishing "home." This also has the benefit of limiting the number of places in which the entity is "at home," which Daimler suggested should be limited. Other courts say that, after Daimler, the analysis for general personal jurisdiction simply apes the analysis for domicile under § 1332.

Saturday, May 2, 2015

Anwers to sample questions

Below are very rough, one-sentence outlines of what I was looking for on the sample questions (which were taken from the 2012 final). Obviously your answers will be far more detailed. But this gives you the broad strokes.

1) Benedetto is NY; KH is partnership w/ corp (DE/NJ) as partner. Amt exceeds $ 75k
2) Barred. FRCP 15(c)(1)(C) b/c changing party by adding new P. C/T/O satisfied, as was notice (given consortium claim in other lawsuit), but no mistake as to identity.
3) Supp Jur--No Diversity b/c Amt-in-Controversy too low. OK under § 1367 as interpreted in Ortega. Doesn’t destroy jurisdiction as to Benedetto under Ortega
4) Impleader--Contingent liability
5) Diversity Jurisdiction--Westchester is NY, KH is DE/PA. No need for Supp Jur.
6) No--FRCP 14(a)(3) satisfied, but no diversity and no supp jur under § 1367(b)
7) Yes--Relevant given the nature of loss of consortium (marital benefits)
8) Even if objectionable, must answer question, unless trying to set-up a Motion to Terminate Dep.
9) No. Mental health not genuinely in issue simply by allegations of mental anguish

Thursday, April 30, 2015

Essay # 7 available

Essay # 7 has been graded. Papers can be picked up outside my office beginning tomorrow morning.

Pending FRCP Amendments

The Supreme Court, apparently without dissent, approved the proposed changes to the Federal Rules of Civil Procedure, including the changes we discussed this semester with respect to time for service, scope of discovery, and repeal of the Forms. The first two pages are the letters "submitting" the proposed changes to each house of Congress under § 2074(a) (quick review of constitutional structure--note who the letters are addressed to and why). If Congress does nothing, these become effective on December 1.

Tuesday, April 28, 2015

Our first question of exam season

When a claim does not arise under a federal question, but there is complete diversity and the amount in controversy requirement has been met can additional claims be brought under Supplemental Jurisdiction? If so, can you please provide an example.

This is where § 1367(b) comes into play. It explicitly prohibits the exercise of supplemental jurisdiction, where original jurisdiction is based on diversity, over certain claims brought/sought to be brought by plaintiffs, where exercising supplemental jurisdiction would act as an end-run around the the complete diversity and no-aggregation requirements of § 1332(a) (with the one narrow circumstance involved in Ortega v. Star-Kist).

This is why, for example, World Wide Volkswagen was not removable until WW and Seaway were dismissed from the action. A federal court exercising supplemental jurisdiction over those claims would have essentially undermined complete diversity by allowing the Robinsons to include non-diverse parties in the action.

Reviews and Samples

1) I am reposting the Exam Instructions and the Sample Questions. Please note that the exam is all short-answer questions; no multiple-choice or essays.

2) The Friday review session is at 10 a.m. in RDB 2006. We will spend the first part sharing the creative projects, then start Q&A.

3) Due to a just-added commitment to the law school, the Saturday review will be at Noon in RDB 2006. Don't worry--pizza will be provided (bring your own drinks). Again, we will review the creative projects, then start Q&A.

With both review sessions, we will stay for as long as you all have questions. You also need not stay the entire time, so feel free to come and go as you please. And both sessions are open to all sections.

Thursday, April 23, 2015

Congratulations--You understand Civ Pro

Remember this short video from the beginning of the semester? Remember that I said you would  understand everything in it by the end of the semester? Go back and check it out.

Also, Civ Pro is a popular part of the Law Revue shows at other schools, as you can see in the two videos after the jump. And again, four months ago you would not have understood any of this. Something to lighten up your study time.

Sample Answer: Essay # 7

The Sample Answer for Essay # 7 is after the jump. I expect to have the papers graded and available before you begin studying for this exam in earnest.

All Sections--Final Audio and Final Comments

Wednesday Section C audio--Part I, Part II. The final 20 minutes-or-so includes an extended discussion of the final Puzzle dealing with the scope of FRCP 3; it may be worth a listen to hear more about how that analysis would go.

I will see everyone on Friday, May 1 at 10 in RDB 2006 and/or Saturday, May 2 at 11 in RDB 2006. Creative projects can be delivered or emailed to me--I must say I have been very impressed so far.

You can email study questions to me or post them to the blog. Also, feel free to stop by my office at any time.

Good luck with exams and (Section A) the Law Review Competition.

Tuesday, April 21, 2015

More on Gasperini

Janeisy mentions Gasperini: This actually is a great case for seeing all different parts of the Erie analysis at work, how they all fit together, and where different conclusions may take you. The issue in the case was the appropriate standard on a motion for a new trial and the appropriate standard of review on appeal of the decision on that motion. The divisions on the Court show all the different ways this analysis can go at different points.

• Justice Ginsburg (writing the majority) and Justice Scalia (writing a dissent) split at the very first question--whether an Act of Congress controlled. Justice Scalia found that FRCP 59(a) did control, then ran an REA analysis and found the rule valid (of course!). Justice Ginsburg found that Rule 59 did not provide the applicable standard; that standard instead was a creation of federal procedural common law. Ginsburg's analysis reflects what we saw in Puzzle # 7--a narrow construction of an FRCP specifically to avoid a conflict with state law and state policy and a possible abridge, enlarge, or modify problem.

• Having found that no Act of Congress controlling, Ginsburg performed the "unguided Erie analysis." In doing so, she included Byrd balancing on top of the "Twin Aims of Erie" analysis--the first time SCOTUS had cited Byrd since Byrd itself.

• Ginsburg's unguided Erie analysis then produced two different results for the two different issues. She found that the state standard applied on the motion for a new trial in the district court, but the federal standard of review applied on appeal. The difference with the latter, she argued, was the countervailing federal interest in limited appellate review and the unlikelihood that anyone would choose a federal forum (over a state forum) because of the standard of review on appeal (thus not applying the state rule would not encourage forum shopping).

Both opinions are somewhat densely written. But if you are looking for another source to illustrate the framework, it is worth a read.

Gasperini v. Center for Humanities, Inc.

Gasperini was a journalist and photographer for CBS News. In 1990 he let The Center for Humanities borrow, for an educational video, over 300 original slides with pictures of war, political leaders, and everyday life that he took while in Central America. After the Center lost the slides he brought a suit in the United States District Court for the Southern District of New York. The trial court applied New York law and found for Gasperini. The Center appealed claiming that the award for the plaintiff was too excessive.

The case went to the Supreme Court of the United States because there was an issue on which standard of review to apply, whether the one applied by the federal courts or the one that had recently been enacted by the New York state legislature. The court addressed the Erie Doctrine in determining whether the standard was substantive or procedural. The majority held that the federal district court should apply the New York standard of review because the case did not include a distinct choice between federal and state interests but it was an opportunity to serve both interests.  

Gasperini v. Center for Humanities, Inc. 518 U.S. 415 (1996).

Monday, April 20, 2015

For Wednesday-Section C

Monday audio--Part I, Part II.

For each of the following, think about (or write out) how you would work through a full essay answer, following the standards and language in the flow chart we produced on Monday. For each rule, think about how the rule operates and its underlying policies. Your answer should include how the parties would present and argue each issue to the court.

All cases were filed in federal district court.

1) Case discussed here,  featuring state-law claims for conversion (pp. 25-31 of opinion). Florida law requires heightened pleading for conversion claims; the plaintiff's complaint adhered to FRCP 8(a)(2) and Twiqbal. Is the complain sufficient? (Hint: The Eleventh Circuit's analysis, while common, is not actually proper under Hanna.) How should this be analyzed and resolved under the framework we are discussing?2) A v. X (Medical Malpractice). Under state law, a medical malpractice claim must be tried by a jury of 12 people. Practice in this federal district is to use six-person jurors in civil cases. See also FRCP 48. How many jurors must the court seat?
3) A v. X (Medical Malpractice). Under state law, in claims for professional malpractice, plaintiff's complaint must be accompanied by a "Certification of Merit," a sworn statement from an expert in the field certifying that the facts reflect a "fair possibility" that the defendant committed malpractice. A did not file a Certification of Merit; must he?
4) A v. X (Negligence). State law has a two-year statute of limitations. A files his complaint two years and two days from the date of the event. Is the complaint timely?
5) Same as # 5. Congress has enacted 28 U.S.C. § 2500, which establishes a four-year limitations period for all claims filed in federal court. Is the complaint timely?
6) A v. X (Products liability). The plaintiff was injured on April 14, 2013, he his action on April 13, 2015, and he served the defendant on April 17, 2015. Under state law, the statute of limitations does not stop until the defendant has been served the summons and complaint; thus, if the plaintiff files the complaint before the statute of limitations has run but does not serve it until after it has run, the action is untimely. Practice in federal court is that the limitations period stops running when the action is "commenced." (FRCP 3). Is A's action timely filed?

Section A

Audio from final class. Listen to the audio from Section C for the last 15 minutes of Monday and the end of Wednesday to get more on Puzzle # 7 and on Puzzle # 1.

For those of you doing Essay # 8, you will hand it to the proctor when you come for the exam on Monday, May 4.

The Q&A session is on Friday, May 1 at 10 a.m. in RDB 2006. We will spend about 1/2 hour looking at the creative projects, then start Q&A; we will stay for as long as you all have questions.

Please get creative projects (physically or electronically) by sometime on Thursday, April 30.

Stop by my office anytime with any questions. You also can email or post questions to the blog; if you email a question, I will post the question (with the identity of the questioner removed) and answer to the blog.

Burdick v. Superior Court

In California a group of scientists have sued Nerium (skincare company), its CEO and Burdick (a company consultant) for harassing two scientists online. The scientists had published skeptical statements about some of Nerium's products on their website. The defamatory statements were made in Illinois and through Facebook by Burdick directed at the California scientists. Burdick moved to dismiss for lack of personal jurisdiction, as he did not live or work in California, but the trial court denied it. However, in light of Walden v. Fiore, he was heard by the California court of appeals.

Ultimately, the California Court of Appeals decided that posting statements in Illinois about an individual in California did not create "minimum contacts" needed for personal jurisdiction. This article provided a perspective on how courts are treating the internet and what exactly is "expressly aiming" (effects test) conduct in the internet age. Was it enough to post statements online with the knowledge that the person you directed them at resides in a certain forum? In this case it was not enough. However, the California court of appeals remanded to have more discovery and find out more information about Burdick's conduct that could tie him to California and establish "minimum contacts."