Friday, February 17, 2017

For Monday--Section A

Friday audio. Nice job in front of a big audience today.

Essay III will be due on Wednesday Monday. Essay IV will be posted on Wednesday and due on Monday, February 27. Essay V will be posted on Friday (when, remember, we do not have class) and due on Wednesday, March 1.

On Monday, we continue with Relation Back, the last piece of Amending Pleadings (and the last piece of the Pleading section). Starting with Krupski, what else will the court look to in determining whether a party made a mistake concerning identity? What did the Court do with the fact that Krupski waited several months to seek leave to amend--how does that affect relation back and how does it affect whether leave to amend should be granted? Why did the Smith Court not allow relation back? Is there a reading of Krupski that suggests the claims should have related back?

This then brings us to the end of Pleading. You now have a complete flowchart to use to organize your notes and outlines and to see how the pieces fit together.

We then turn to Managerial Judging, focusing on FRCP 16 and FRCP 26(f), along with the two recent Annual Reports. Consider the benefits and drawbacks to a focus on settlement?

We then start Discovery: Introduction to Discovery. With respect to FRCP 26, focus attention on FRCP 26(a)(1), 26(b)(1)-(2), 26(c), 26(d), and 26(f). How is pre-trial discovery consistent with and inconsistent with having an adversary system? How does adverseness affect the discovery process? What is the point of disclosure and what evidence must be disclosed? What evidence is generally discoverable?

Federal Bar Association Programs

This is information on a series of programs sponsored by the FIU COL chapter of the Federal Association. The focus is on federal discovery, so it fits right in with what we are about to get into in the class.

The next program is 5:30 p.m. on Tuesday, February 22, with three more to follow in March. I encourage everyone to attend, both to learn some things about discovery and as a networking opportunity.

Wednesday, February 15, 2017

Sample Answer--Essay II

West Bend Insurance Company’s (“West Bend”) complaint is factually sufficient and satisfies the pleading requirements of FRCP 8(a). The motion to dismiss for failure to state a claim is denied.

A motion to dismiss for failure to state a claim tests the legal and factual sufficiency of a pleading stating a claim for relief. FRCP 12(b)(6). The pleading must comport with FRCP 8(a)(2), requiring a “short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint must provide the defendant with “fair notice of the claim and the grounds upon which it rests.” Twombly; Conley. In deciding a motion to dismiss, the court reviews the four corners of the complaint, including any written instruments attached to the complaint and made a part of t, pursuant to FRCP 10(c).

For Monday--Section C

The material covered in this evening's class was covered on Monday and the first part of Wednesday in Section A; audio can be found there.

On Monday, we continue with Amending Pleadings. What are the reasons identified in Foman for denying leave to amend and what do they mean? How does the concept of leave to amend under FRCP 15(a)(2) interact with dismissals with and without prejudice? What does it mean for an amendment to be futile and how does that issue get raised and argued in court?  How can the court determine whether a proposed amended pleading would be futile, if futility means the claim(s) in the pleading would not survive a 12(b) motion to dismiss? Think about futility and arguments about futility in the following situations:
   1) Jones v. Ford Motor: D's Answer does not include any counterclaims. It now seeks leave to amend the Answer to add the counterclaim for non-payment.
   2) Stanard: P seeks leave to amend his complaint one more time

How does the statute of limitations play into futility? Consider what would happen if Zielinski moved to amend to add CCI as a defendant. Why do we have statutes of limitations--what are their purposes? Review FRCP 15(c); try to work out how and when relation back arises, what it means, and what the rule requires. Pay particular attention to the meaning of "mistake" in FRCP 15(c)(1)(C)(ii).

Finally, read the section on Managerial Judging, focusing on FRCP 16, as well as the annual reports.

Essay III


Zervos v. Trump

A Complaint was filed in Zervos v. Trump. (For purposes of this problem, treat the action as having been filed in Federal District Court and being governed by the Federal Rules of Civil Procedure).

You are counsel for President Trump. You believe he has a meritorious defense of “Presidential Temporal Immunity,” which provides that a “sitting President” cannot be made to litigate or defend a civil action while in office, even where the civil action arises from conduct that occurred prior to his presidency or is unrelated to his official presidential duties. The defense originates and is grounded in constitutional principles of separation of powers and the fact that the President wields the executive power under the Constitution. If the defense applies, the trial court must dismiss the action without prejudice, giving the plaintiff leave to refile when the President leaves office (any statute of limitations stops running during this period). It is not clear that the defense exists as a matter of substantive constitutional law; it has never been established by the Supreme Court of the United States, but there is room for legal argument on the issue.

As counsel for the President, discuss the different procedural mechanisms and strategies through which you could raise this defense and get the district court to immediately rule on it. Discuss which approaches will or will not work in this case and why.

For Friday--Section A

Wednesday audio. Essay III will be posted in ten minutes and due next Monday. Essay IV will be posted on Friday afternoon, due on Wednesday, February 22. Essay V will be posted on Friday, February 24 and due on Wednesday, March 1.

Remember we are in RDB 2008 on Friday.

We pick up with the question we left-off on: How can the court determine whether a proposed amended pleading would be futile, if futility means the claim(s) in the pleading would not survive a 12(b) motion to dismiss? Think about futility and arguments about futility in the following situations:
   1) Jones v. Ford Motor: D's Answer does not include any counterclaims. It now seeks leave to amend the Answer to add the counterclaim for non-payment.
   2) Stanard: P seeks leave to amend his complaint one more time

How does the statute of limitations play into futility? Consider what would happen if Zielinski moved to amend to add CCI as a defendant. Why do we have statutes of limitations--what are their purposes? Review FRCP 15(c); try to work out how and when relation back arises, what it means, and what the rule requires.

Still more on consent

The problem is that the plaintiff did not only allege harmful conduct, she also alleged lack of consent. Which she had to do, because assault and sexual battery both include lack of consent as elements of the claim to be pled and proven. Consent cannot be an affirmative defense (new matter, admitting facts in prior pleading, show cause why they should not have their ordinary effect), since lack of consent was pled in the original pleading. A defendant cannot say "yes, lack of consent (which was pled in the prior pleading), but she consented."

It can be tricky figuring out whether something is a failure-of-proof defense or an affirmative defense. It ties back to the applicable substantive law and how it defines the cause of action, but it is not always clear. So take a simple example of defamation:
 
    1) Defamation means "D made false and harmful statements about P, causing injury"--The elements are falsehood, harmfulness, and injury, to be pled and proven by P.
    2) Defamation means "D made harmful statements about P, causing injury"--the elements are harmfulness and injury. Truth is an affirmative defense, to be pled and proven by D.

In First Amendment defamation cases, substantive law adopts # 1. In private defamation, substantive law adopts # 2. Either one could make sense.

So here, consent is in the same position as truth/falsity. But the plaintiff pled her claims as if lack of consent were an element. Which seems right--otherwise any touching would presumptively be a tort, unless defendant could prove consent.


More on Consent

Responding to Katarina's post on consent.

By asserting a defense of consent the defendant would be stating that the allegation was true so far as there was harmful or offensive contact (or whatever the allegation), but that the plaintiff consented to the contact so there is no liability.

I think you would still assert this defense, but I imagine a defendant would want to assert it in the alternative.

First, deny the allegation regarding the harmful or offensive contact (or whatever), as was done in Kinsman. Then, in the alternative, that to the extent there was any contact at all, that the plaintiff consented to the contact.

This would be consistent with FRCP 8(d)(2)/(3).

Tuesday, February 14, 2017

Affirmative Defenses under 12(b)(6) and 12(c)

A point of clarification on affirmative defenses decided through 12(b)(6) and 12(c).

The motion will not automatically be granted, even if the facts are undisputed. Rather, the motion tees-up for the court to decide the legal issue of whether the defense, on the undisputed or taken-as-true facts, has been established. The undisputed facts set up the court's legal analysis of some question, from which it then determines liability or not.

Take the statute of limitations example. If the date of the events appears in the complaint, the defendant can file a 12(b)(6); the court will take that fact as true, then resolve the legal issues of what the limitations period is (not always an obvious question) and whether it has run or not. If she decides it has run on these undisputed facts, she grants the motion; if she decides it has not run, she denies the motion. Similarly, if the defendant pleads the date in the answer and the plaintiff admits the date in the Reply to the Answer, the court on the 12(c) now takes the undisputed fact and resolves the legal issues of what the limitations period is and whether it has run or not. Again, if she decides it has run on these undisputed facts, she grants the motion; if she decides it has not run, she denies the motion.

The point is that when there is a factual dispute, a case must proceed (the motion denied) because only the fact-finder can resolve factual disputes (or, at the very least, we must get beyond the pleadings and allegations and into evidence). Absent the factual dispute, there is nothing for the jury to do. But the court still must analyze the legal question (that, recall, is the point of a motion--to give the district court the opportunity to analyze and resolve the legal issue).

Monday, February 13, 2017

For Wednesday--Section C

Monday audio.

We continue with additional claims on Wednesday. Try to figure out what all the remaining claims are in Holmes and whether the applicable rule is satisfied as to each. How does the S/T/O standard apply in each of these claims. Work through all the "downstream" claims in FRCP 14, especially 14(a)(2), which shows what the third-party defendant can do in response to being dragged into the case. With respect to the claims between Clear Code and Cosgrove, consider: What is the difference between a counterclaim and cross claim, how do you know when something is one or the other, and why does it matter? Also, consider the role that FRCP 18(a) may play in all this (with respect to Cosgrove's claims and Jasper's claims against Holmes).

We then turn to Amending Pleadings, which means starting over at some point in that flowchart. Review FRCP 15(a)(1) and the two distinct timelines, which we discussed when covering the disfavored 12(b) defenses. What might a party do in amending a pleading? What are the reasons identified in Foman for denying leave to amend and what do they mean? How does the concept of leave to amend under FRCP 15(a)(2) interact with dismissals with and without prejudice? What does it mean for an amendment to be futile and how does that issue get raised and argued in court?

Consent

After today's class, Professor Wasserman and I briefly discussed "consent" as an affirmative defense and the way the defendant's attorney used consent as an affirmative defense in Kinsman.

The second affirmative defense listed in Kinsman (p. 40) states that, "Plaintiff consented to and was a willing participant in the acts alleged and her claims are barred by consent." If you then go to back to p. 35 and read Count 1 - Sexual Battery, Paragraph 49, you will see that the plaintiff was alleging that, "Without privilege or consent, Defendant intentionally caused offensive and harmful contacts with Plaintiff's person by removing Plaintiff's clothing, holding Plaintiff down, and forcibly raping Plaintiff ...."

Now what is interesting is that consent (or actually a lack of it) may itself go into the elements of battery. Since underlying wrong in battery is harmful or offensive conduct (and yes, there must be an intent), if there was consent in the first place, then technically it should not be a battery at all because consent would negate the harmful or offensive contact.

Therefore, if we think about consent in the above way, the counsel should have not used consent as an  affirmative defense (yes, but consent), but should have gone with failure/proof option.


Question for Review--Section A

We did not have time to discuss this in class, but consider: Are the counterclaims in Kinsman compulsory or permissive?

For Wednesday--Section A

Monday audio. Essay II due at the beginning of class Wednesday. Essay III will be posted on Wednesday afternoon and due on Monday, February 20. Essay IV will be posted on Friday afternoon and due on Wednesday, February 22.

We will begin on Wednesday by walking through the Responsive Pleading piece of the pleading flowchart (which someone photographed from today). You can then combine that piece with our earlier walk-through of Complaints and Motions, to form a full flowchart.

We then turn to Amending Pleadings, which means starting over at some point in that flowchart. Review FRCP 15(a)(1) and the two distinct timelines, which we discussed when covering the disfavored 12(b) defenses. What might a party do in amending a pleading? What are the reasons identified in Foman for denying leave to amend and what do they mean? How does the concept of leave to amend under FRCP 15(a)(2) interact with dismissals with and without prejudice? What does it mean for an amendment to be futile and how does that issue get raised and argued in court?

Temporary Restraining Orders - Unappealable? (Answered)

Professor,

You mentioned that TROs are not appealable, but that preliminary injunctions are.

I realize some of this crosses into appellate procedure, but I'm guessing that TROs are not appealable because they are not final orders of the court.

So how does that differ from a preliminary injunction? "Preliminary" sounds not final, either.

Under 28 U.S.C. § 1292(a), the court of appeals has jurisdiction to review an interlocutory (non-final) order "granting, continuing, modifying, refusing or dissolving injunctions." But because a TRO is not an injunction, § 1292(a) does not permit review.

We get into this in-depth in Federal Courts.

February 13 Class Flowchart. Section A



February 13th flowchart. I apologize about the layout, not sure how to rotate the image. 

Saturday, February 11, 2017

Friday, February 10, 2017

Essay II


West Bend Mutual Ins. Co. v. Roddy, Leahy, Gull & Zima and Paul Schumacher

West Bend Mutual Insurance Co. v. Roddy, Leahy, Gull, & Zima is a legal malpractice action, filed in federal district court. The plaintiff, an insurance company, has sued Paul Schumacher ("Schumacher"), its former lawyer, and Schumacher’s law firm, Roddy, Leahy, Gull & Zima (“RLGZ”). West Bend alleges that defendants committed malpractice in defending it in a prior workers’ compensation case, causing it to have to pay on a claim brought by the injured employee of one of the companies West Bend insured.

The controlling pleading is the Second Amended Complaint.

Applicable substantive law provides that a claim for legal malpractice includes the following elements:

(1) the existence of an attorneyclient relationship that establishes a duty on the part of the attorney, (2) a negligent act or omission constituting a breach of that duty, (3) proximate cause of injury, and (4) actual damages.

Courts have described the legal malpractice cause of action as following a casewithinacase model:

A legal malpractice suit is by its nature dependent upon a predicate lawsuit. Thus, a legal malpractice claim presents a case within a case. [N]o malpractice exists unless counsel’s negligence has resulted in the loss of an underlying cause of action, or the loss of a meritorious defense if the attorney was defending in the underlying cause of action.

To prevail on a legal malpractice claim, a plaintiff must prove that the defendant breached a duty, that the breach caused the plaintiff to lose a valid claim or defense in the underlying action, and that, absent that loss of a valid claim or defense, the underlying claim or defense would have been successful. In effect, a legal malpractice plaintiff must present and prove two cases—one showing that her attorney performed negligently and a second (the “predicate,” “underlying,” or “case within the case”) showing the plaintiff had a meritorious claim or defense in the underlying action that she lost because of counsel’s negligence.

Defendants move to dismiss all claims in the Second Amended Complaint for failure to state a claim upon which relief can be granted. As the Federal District Judge hearing the case, decide defendant’s motion.

[Note: In your answer, you can and should cite to relevant allegations, by paragraph number, from the Second Amended Complaint]

For Monday--Section A

Friday audio. Essay II about to be posted. Someone please post photos of the flowchart and Holmes to blog.

We continue with additional claims on Monday. Try to figure out what all the remaining claims are in Holmes and whether the applicable rule is satisfied as to each. How does the S/T/O standard apply in each. Work through all the "downstream" claims in FRCP 14, especially 14(a)(2), which shows what the third-party defendant can do in response to being dragged into the case.

We will start with the policy questions we left-off on: Why allow unrelated counterclaims? Why allow only unrelated crossclaims and impleader? Why not require any crossclaims or impleader?

Thursday, February 9, 2017

Procedure matters

Order from the Ninth Circuit denying stay pending appeal.

Recognize something important, however. For all the talk in the media about the "massive blow" to the President's immigration ban and "rebuff" of the President, consider what was actually at stake in today's decision--a motion by the government to stay the district court's order (that prohibited enforcement of the immigration order until it could hold a hearing) and allow the President's travel ban to be enforced while further, comprehensive litigation proceeded in the court of appeals. By denying the stay, all the Ninth Circuit was doing was establishing the status quo of non-enforcement of the travel ban until the judicial system as a whole (including all appeals) resolves the merits of the constitutional questions raised. In other words, all of this for a narrow procedural issue. There is still much briefing and arguing ahead over the main issue of the EO's constitutionality.

On the other hand, if you read the first part of the opinion, you will see some procedural sleight of hand. The court of appeals took a Temporary Restraining Order, which is not supposed to be appealable, treated it as a Preliminary Injunction, which is appealable, and asserted appellate jurisdiction. This pulled the case from the trial court, even though the trial court never held a full evidentiary hearing and never performed a comprehensive constitutional analysis.

Pleading as Press Release

Actual paragraph from the complaint in a lawsuit brought against the actor who formerly portrayed the Dos Equis "Most Interesting Man in the World" by his former agent, alleging non-payment of commissions. The Complaint contains the following allegations:

"There is nothing interesting about being a deadbeat or failing to pay those directly responsible for one's career success."

"As it now turns out, had Goldsmith landed a role that more accurately portray[ed] his true character, he would have landed the role of 'The Least Honorable Man in the Entertainment Business.'"

Why would the plaintiff do this? Is it a good idea? Necessary? Appropriate?

Picture of Board from Wednesday 2/8 Class