Tuesday, April 25, 2017

Civ Pro returns to SCOTUS (Updated)

Something to watch that I forgot to mention in class yesterday: SCOTUS on Tuesday hears two new personal jurisdiction cases. Bristol-Myers Squibb v. Superior Court considers a broad approach adopted by the Supreme Court of California for when contacts "relate to" a claim--under the court's "sliding scale," contacts outside California could still relate to identical contacts in California that cause the same harm. BNSF Railway v. Tyrell considers whether an entity can be essentially at home any place other than its state of incorporation and principal place of business-that is, whether the old "doing business" general jurisdiction can survive at all. There is a side issue of whether some statutory language in the Federal Employees Liability Act (the federal statute governing lawsuits by railroad employees) affects venue in federal court or personal jurisdiction in state court.

Update: Transcript of Bristol-Myers; transcript of BNSF. Again, worth reading over as a review/application of these topics.

Monday, April 24, 2017

Essay VIII Sample Answer (Updated)

As I said in one of the classes today, I remain unsure of the right answer on this one. So I split the difference and wrote to sample answers--the first finds no jurisdiction and grants the motion, the second finds there is jurisdiction and denies the motion.

Essay VIII has been graded and can be picked up outside my office.

Final Class-Section C

Monday audio.

Q & A and Creative Project presentation on Friday, time and room TBA, and 11 a.m. Saturday morning. Again, please get any videos, visual materials, books, etc. to me by the end of Thursday.

Final Class--Section A

Monday audio.

Q&A and Creative Project presentation on Friday, time and room TBA, and Saturday morning. Again, please get any videos, visual materials, books, etc. to me by the end of Thursday.

Sunday, April 23, 2017

Need a Study Break While Buffing Up on some F.R.C.P's then "Better Call Saul".

I took a break from studying by catching up on some episodes of "Better Call Saul" on Netflix, and came across a 12(b)(6) reference in Season 2 Episode 2, "Cobbler". If you aren't familiar with the show, it is a prequel spinoff from the "Breaking Bad" series and follows the story of small-time lawyer, Jimmy McGill (referred to as Saul Goodman in the Breaking Bad series), who pushes the boundaries of legal ethics throughout the series.

Around the 20 minute mark, Jimmy discusses a case regarding a retirement community contract dispute with one of his firm's partners. Jimmy noticed in the initial disclosures that the opposing party kept referring to an optional-allowance program, but none of the tenants had opted out and Jimmy thinks its more of a mandatory financial arrangement. Jimmy reasoned this to be a failure to state a claim that the opposing party filed in their answer because if the program is optional then it's voluntary, and if opting-in is a residency requirement then their voluntary claims hold no water because the program would actually be mandatory.

Essentially, Jimmy is saying that the opposing party's answer is factually insufficient by not providing enough facts to prove the plausibility that their claims are in fact voluntary. Jimmy understands that if his motion passes it will be without prejudice thereby allowing the opposing party to amend its pleading, but considering the importance of proving the claim's voluntariness this might be a tough task for the opposing party to accomplish.

There are other Civil Procedure references scattered throughout the series, but this show might be more appropriate for a Legal Ethics class discussion. However, if you need a break from studying I would highly suggest this show as an option.

http://www.amc.com/shows/better-call-saul/season-2/episode-02-cobbler

Saturday, April 22, 2017

Essay VIII Clarification

For purposes of this question, act as if Zervos filed the identical complaint in state court in California. Everything about the Complaint is the same, except the Caption which should read "In the Superior Court of California for Orange County."

Thursday, April 20, 2017

Another note on creative projects

This is extra credit, so not blind-graded. I need your name on the project, not your ID #.

Wednesday, April 19, 2017

For Monday--Section C

Wednesday audio.

Change in plans. We will finish with Erie itself, then stop. So it will be a slightly shortened class. What is the constitutional problem created by the fact that common law is, by definition, state law?  What is the meaning of Brandeis' rejection of a "transcendental body of law" that informed Story's view in Swift?

Reviews, Exams, and Creative Projects

Monday is the final class for both sections. The exam is Monday May 1--Section A at 9 a.m. and Section C at 6:30 p.m.

I will hold two Q&A Sessions, everyone is welcome to attend either or both. The first will be on Friday, April 28, the second will be on Saturday, April 29; times T/B/A.

Creatives projects for Section A will be displayed/presented at the Friday session; projects for Section C will be displayed/presented at the Saturday session. If you want to turn something in prior to the session, please get it to me by Thursday, April 27. This is particularly true for videos (provide me with a thumb drive, if possible) and anything visual for display. If you are writing poems or something similar that you are going to read live, you can send me a copy in advance or give it to me at the session.

The Q&A sessions are just that--Q&A. I will have nothing prepared; I will just be answering questions that you have from your studying. And we will stay until people are out of questions.

In addition, you can email me or post to the blog any questions that arise while studying; I will answer them with periodic blog posts. Check the blogs periodically over the weekend to see what has been asked and answered--it may be things you were thinking of.

Finally, the exam will 15 short-answer questions, worth four points each; the format is the same as the Preliminary Exam; you will have four hours. You may bring with you all assigned course materials (all books and anything assigned and posted to the blog, such as additional cases, provisions, or documents, such as pleadings); class notes; and a course outline for which you were at least 25 % responsible (i.e., a study-group outline). You may not bring in any materials that were not assigned as materials in the class (no additional commercial study guides, etc.).

For Friday--Section A

Wednesday audio.

We continue with the Erie Hypos, beginning with # 2 and the unguided Erie analysis over jury size. Now that you know the framework, work through each problem as if you were outlining an essay on it. This will cover Friday and our final class next Monday.

Essay VIII


Zervos v. Trump:

The defamation lawsuit in Zervos v. Trump was filed in state court in California, the plaintiff’s home state. Trump moves to dismiss for lack of personal jurisdiction.

As the court, decide the motion to dismiss.

For purposes of this question:

1) California has a catch-all Long Arm Statute, stating “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”

2) Accept all the facts in the complaint as true.

Tuesday, April 18, 2017

Erie Hypos--Section A

After the jump are the problems we are going to work through to show how the Erie/Hanna framework operates. For tomorrow (Wednesday), prepare ## 1-3. We will work through the rest on Friday and Monday.

For each problem, consider:
  1) What law applies and why
  2) What countervailing federal rules/statutes might apply
  3) How the issue would be raised, argued, and resolved procedurally in the trial court
  4) How the court will resolve the dispute.

With respect to any state laws given in the hypo, try to figure out what the underlying policies of those laws might be (i.e., what the state is hoping to accomplish by having such a law). So, for example, why do we have statutes of limitations? With respect to possibly applicable federal laws/rules, if they are ones we have already learned in this class, I have not identified them in the hypo; you have to figure out what federal statutes/rules might be in play (consider this a pleading review). If the federal law/rule is new (or fake), I have identified it in the hypo. Needless to say, you will need your rule book in class.

Picture of the board from Monday 4/17


SCOTUS on sanctioning powers

SCOTUS today decided Goodyear Tire & Rubber v. Haeger, addressing the requirement for imposing discovery sanctions under inherent power. It is a short, unanimous opinion, but worth reviewing for its overall discussion (in both text and footnotes) of the sanctions options available to district courts.

In particular, see how the various statutory, rule-based, and inherent sources of sanction power relate and run out. Plaintiffs were complaining about discovery abuse (refusal to produce certain documents), but misconduct not discovered until after the case had settled. So what source? Not FRCP 11, since sanctions cannot be sought once the case ends. Not FRCP 37, since the sanctions for non-production all related to an ongoing case and the appropriate sanction--entering a default--is not an option to a settled case. Not § 1927, since that gets at the attorney, not the party (and it appears the misconduct was by the party, not trial counsel). So the court had to fall back to inherent powers.