Sunday, May 6, 2018

Judgment as Matter of Law Answer

I understand that a plaintiff cannot move for judgment as a matter of law under 50a until after the defendant's case in chief, but can the plaintiff only move under 50a if the burden shifted to the defendant, or can they move no matter what after the defendant's case in chief?

A plaintiff cannot move for judgment as a matter of law on her own claim unless the burden of production shifts. In arguing for judgment as a matter of law, a movant is arguing that the opposing party failed to carry its burden of production (failed to offer evidence from which a reasonable jury could find in its favor). If the burden of production never shifted, the defendant never had the burden of production, so it cannot be argued that he failed to carry it.

This is where the burden of persuasion comes in. The plaintiff having produced evidence in support of its case (without shifting the burden of production), the case should go to the jury to decide whether it is persuaded by the plaintiff's evidence. 

To use a concrete example from class; If Mrs. Catrett offers evidence of exposure in her case-in-chief and the burden of production not having shifted, it is now for the jury to decide whether it is convinced that her husband was exposed.

Second Set of Questions and Answers

I had a quick question about the PJ hypo we did in class. We said that Mcnamee purposefully availed himself of Texas law by traveling to the state 35 times to train Clemens during the off season. Would this fall under the serve/seek to serve category for purposeful availment?  Would there be purposeful availment if he had travelled there 35 times for vacation rather than to train Clemens?

Yes, because it represents contacts/purposeful availment with the state. Many of our cases (BK, Walden, Calder) consider whether the defendant traveled to the state as purposeful availment. Changing the reason for his travels does not change the issue--whether those contacts give rise or relate to the claim. If he went to Texas for vacation, then any "relate to" connection between the contacts and the defamation claim is lost, so the argument in favor of jurisdiction becomes that even weaker.

Under Personal Jurisdiction, if transient/tag jurisdiction (serving the D with process while they’re in the State) is a way to assert general jurisdiction over a defendant, then why is it a way to purposefully avail? If someone is served with process in a State, doesn’t that automatically give the court general in personam jurisdiction over the person, without having to go through the Shoe analysis?
 Only under Scalia's analysis in Burnham; not Brennan's.
For the minimum contacts Shoe analysis, at what point do we interpret "give rise or relate to"? Is it after purposefully availed/forseeability? before Traditional notions? When does it come into play?
It's the intermediate step between contacts and traditional notions (hence the reason they are number 1, 2, and 3 on the flow chart we did in class). Think about it. First you ask if there are contacts, then you ask whether the contacts give rise or relate, so you know whether you are dealing with specific or general jurisdiction.
In analyzing Supplemental Jurisdiction “Common Nucleus of Operative Fact” may be interpreted as either the same as S/T/O, or narrower. My question is, what does "narrower" mean? Does that mean more strict? Meaning that if its narrower, and we satisfy Joinder under S/T/O, we may not satisfy common nucleus?
No, common nucleus is the same or broader. Broader means it is easier to satisfy or more facts will satisfy it; narrower means fewer facts will satisfy it. Common nucleus cannot be narrower than S/T/O, because the rules cannot expand jurisdiction.

For the Personal Jurisdiction analysis when we are doing stream of commerce, do we have to just mention stream of commerce AND  stream of commerce PLUS?
Answer the question asked and apply all applicable law given the facts you have.
 
In the Shoe Analysis is the Calder Effects Test under purposeful availment or the foreseeability of being hailed into court in that state?
They're not separated. Purposeful availment means you can foresee being haled into court. So all the ways of purposeful availing go to both--if you purposefully availed by one of those tests, you can foresee being haled into court.
 
For supplemental jurisdiction do you we have to explain that common nucleus of operative fact is the same as same transaction or occurrence AND that it could also be narrower than common nucleus of operative fact?
It depends on the facts you have and what you are being asked to argue.

Saturday, May 5, 2018

Summary Judgment--Answer


I'm a little confused as to the what the nonmovant--not bearing initial burden of production or burden of persuasion--must show at summary judgment.

I understand that if the nonmovant does bear both burdens, he must present reasonably probative affirmative evidence to show that there is a genuine dispute as to a particular material fact. However, when the nonmovant does not bear either burden, what does he have to show? Can he just rely on his own evidence and rely on disbelief or impeaching the movant's witnesses at trial? If so, does a movant, who bears both burdens, ever realistically have a chance at prevailing at summary judgment? I would imagine the only way a movant who bears both burdens could prevail is if the nonmovant's case is just extremely weak.


This describes the most common situation--a defendant moving for summary judgment on the plaintiff's claim where the burden of production does not shift; the plaintiff would bear the burden of production and burden of persuasion at trial. Under the majority in Celotex and FRCP 56(c)(1)(B), that party need not present any evidence with the motion, but can simply argue that the evidence the plaintiff has produced is insufficient ("there is insufficient evidence of X"). Alternatively, that party can follow 56(c)(1)(A) and offer his own evidence rebutting the material fact ("here is my evidence showing 'not X'"). Either approach requires the non-movant (the plaintiff, here) to oppose the motion by producing evidence rebutting the movant's evidence and offering her own evidence from which a reasonable juror could find in her favor.

Look at Sitzes. The plaintiffs had the burden of persuasion and initial burden of production. The officer moved for summary judgment doing both. He included evidence (his affidavit) that he believed there was an emergency and that he did not intend to injure. The plaintiffs then offered evidence attempting to create a dispute as to the good faith of that belief, which the officer argued was insufficient to show intent to injure.

Personal Jurisdiction Questions and Answers

I'm having a bit of trouble with the personal jurisdiction analysis.  I'm not sure where we are supposed to analyze if the action is in rem, in personam, quasi 1 or quasi 2.  Is that supposed to be before we start the analysis of "is there a statutory basis for personal jurisdiction" question? 

When we answer this question, do we go through the four civil action types, state the one it is and then go onto the actual personal jurisdiction analysis? 

Also, what effect does the type of action, if its in rem or in personam, have on the jurisdiction analysis?
 
The type of action affects the manner of service and the type of contact that might be sufficient under Shoe. In an In Rem or Quasi In Rem, ownership of the property at issue is a sufficient contact, if the property is sufficiently related to the action.
 
There is no need to go through each of the types, since most actions are In Personam.  If you have an I/R or Q/I/R, you can identify that at the outset, which will direct you where you want to go in the Shoe analysis.


While reviewing the minimum contacts section of the International Shoe analysis, I realized that I did not have any examples of what or how a tort could show a person/entity purposefully availed themselves in that jurisdiction. I looked at the Glannon book and the examples involving torts would either have no jurisdiction or the court would have jurisdiction under the effects test. Do you have an explanation for what to look for to satisfy the torts aspect of purposefully availing?

Imagine analyzing the facts of Hess v. Pawlowski (PA citizen sued in MA over car accident in MA) under Shoe. Or imagine how you would get jurisdiction over Wal Mart on a respondeat superior theory in NJ--someone driving on behalf of Wal Mart caused an accident in NJ. These cases are pretty straight-forward, so personal jurisdiction generally is not challenged.

First Set of Questions and Answers

A, a citizen of OH buys a car while on vacation from a dealer in NC. When A makes it back to OH, the car falls apart and A is injured. A sues the dealership in Ohio.

Under the precedent set by World Wide and using the shoe analysis Glannon says that there would be no personal jurisdiction because as the court noted in World Wide, since cars move the foreseeability of the chattel making its way into a state is too tenuous to establish minimum contacts. However if a producer knows when he sells a product to a customer, that customer is a citizen of a different state (say OH), wouldn't that establish certain minimum contacts under stream of commerce for that particular state, even if it doesn't establish certain minimum contacts for any other states?
 
The mere fact of the customer being from another state probably is not alone sufficient (see Walden). But you can add more facts that might get you to the conclusion that the NC car dealer sought to serve the forum or anticipated the product reaching OH. Imagine, for example, that Robinson told the Seaway dealer that he was buying the car so he could move the family across the country, that the car would be driving through Oklahoma, and that he needed a particular car to make this move. Now the connection to the other states becomes clearer.

Hypothetical Facts:
David and I have car accident. Judgment rendered for me to collect $20k for arm injuries. Then, I decide I want to bring an additional claim negligence claim with a new complaint for leg injuries sustained from the same accident with David. Same court. 

Analysis: 
Obviously, claim preclusion/res judicata. However, before David can respond with an 8(c)(1) affirmative defense, is there some rule/mechanism I'm unaware of with which the court will say something to the effect of, "Hey, res judicata. Claim dismissed"? I understand claim preclusion and res judicata is a general doctrine, but wouldn't know where to cite if I needed to. Or must David make the affirmative defense in order for the second claim to be precluded? Furthermore, if David must make the defense and DOES NOT, is the prior negligence claim for the leg injuries still precluded?
Claim preclusion is like every affirmative defense other than lack of subject matter jurisdiction--it is waived or forfeited if not asserted by the defendant (subject to the right to amend). And if David does not raise the defense, the new claim is not precluded.

We could do this with any affirmative defense: A defendant can't be liable on an untimely claim, but if the defendant doesn't raise untimeliness, he could be; A defendant can't be liable on a doubt he already paid, but if he doesn't raise payment, he could be.

Thursday, May 3, 2018

Final Exam Instructions



In-Class Final Examination
Format:
This is your in-class Final Examination. Because this exam is being administered to two different classes and because some students take exams at different dates or times, you must ensure that you do not discuss the exam with, or in the vicinity of, anyone who has not already taken it. If you take the exam at some later point, you must ensure that you do not discuss the exam with anyone until you take it.
The exam can be completed either on computer using ExamSoft or in blue books. If you write in blue books, please be legible; I cannot evaluate an answer that I cannot read or decipher.
The exam consists of 15 Questions, worth a maximum of four (4) points each.
You have four (4) hours.
Questions are in Bold. Facts and details about the hypothetical are in Plain Text.

Monday, April 30, 2018

Read and learn

And this is why you pay attention in Civ Pro and PR and basic common sense.

Friday, April 27, 2018

Casey — Naruto opinion

Hey Casey, I just heard the news too. Here’s the link to naruto’s opinion if anybody needs a break from property and IL. Good luck on finals!!


 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/23/16-15469.pdf

Thursday, April 26, 2018

Blac Chyna’s Mom, Tokyo Toni’s $1 Million Lawsuit Against Wendy Williams Is Dismissed

Blac Chyna’s mom Tokyo Toni’s $1 million lawsuit against Wendy Williams in which she claimed that the host made some comments which led to her feeling stressed and depressed has eventually been dismissed. Here are the details on this matter.

A judge told Tokyo aka Shalana Jones-Hunter back in February that is she was not able to prove that she had served Wendy with the lawsuit, the case would be dismissed. This was reported by The Blast.

It seems that by April 10, Wendy still hasn’t been served; therefore the judge dismissed the lawsuit which was claiming defamation of character, harassment, and slander.


Click here for the rest of the story.

Monday, April 23, 2018

Naruto and the Ninth Circuit

The Ninth Circuit upheld the District Court's ruling today.
No copyright protection for non-humans.

https://www.nbcnews.com/news/us-news/federal-appeals-court-rejects-monkey-selfie-suit-n868501

Film Screening: "Little Pink House"

The following was forwarded by Joanna Talcott, a COL grad. It sounds like an interesting movie.

FInal Class

Monday audio--Section A, Section B.

Q&A sessions will begin at 10 a.m. on Thursday, May 3 (Section A) and 10 a.m. on Friday, May 4 (Section B), both in RDB 2005. You are welcome to attend both, but creative projects will be displayed and presented at your assigned day. If you have a video project, please get it to me (provide link, flash-drive, or email) a day or two before. Please be sure your name is on your project.

I am in my office the next two weeks for questions and to review things. You can post questions to the blog. You also can email questions--my practice is to post the question and my answer to the blog (with the name of the questioner removed).

managerial judging and discovery

hi all,

I found this article to be interesting and thought I would share. It shows, in my opinion, the importance of judges who engage in active case management.

- Brittany Brooks

https://www.forbes.com/sites/wlf/2018/03/28/federal-court-offers-an-exemplar-on-defusing-the-e-discovery-litigation-weapon/2/#5bdbc8894e33