Thursday, May 5, 2016

15(a) & 12(h)

Question re "matter of course" amendment allowed by Rule 15(a)(1) under Rule 12(h)(1)(B)(2):

Under 12(h)(1), the Rule is saying that the 12(b)(2)-(5) defenses are either: 

(1) waived if omitted from the first motion per 12(g)(2); 

(2) waived if failed to make by motion under that rule; or

(3) waived if not included in a responsive pleading or amendment allowed by Rule 15(a)(1) as a matter of course ------- 
My issue here is I'm not quite where the "matter of course" is coming from. (I understand it's from 15(a)(1), just not sure why we would go there)  From what I understood, to raise one of the 12(b) defenses, the party must file a motion prior to a responsive pleading.  But, how can the 12(b)(2)-(5) defenses be in a responsive pleading, or an amendment as a matter of course, if the motion w/ defense was filed first? 

Is this referring to if the plaintiff amended the complaint and then the defendant is responding to this amended complaint with a 12(b)(2)-(5) motion? 

If not, would you be able to clarify how this situation would arise? 
First, go back to the introductory language of 12(b): Defenses are to be asserted in the responsive pleading, but those seven defenses can be asserted by pre-answer motion. So you have your choice of how to raises one of those defenses.

Second, these defenses only will be asserted in a responsive pleading, obviously--you only raise defenses in response to a claim.

Third, a defending party can amend a responsive pleading and, under 15(a)(1), it might be as a matter of course, That's the significance of 15(a)(1)'s distinction between a pleading to which a responsive pleading is required in (B) and one to which a responsive pleading is not required in (A).

So where does that leave us? A disfavored defense is waived if either a motion or a responsive pleading is filed without one of those defenses--in other words, whatever the defendant files first, must include one of these defenses. But the rule goes one step further and allows a party to raise it in an amendment to that responsive pleading, provided it is one filed as a matter of course--that is, as allowed by FRCP 15(a)(1).
So imagine the following: Defendant answers and forgets to include a 12(b)(3) defense. Ten days after serving the answer, defendant realizes his mistake. Under FRCP 15(a)(1)(A), he had 21 days from serving his responsive pleading to amend as a matter of course; only 10 days have passed. So the defendant could file an amended answer as a matter of course, without seeking consent or leave. And under FRCP 12(h)(1)(B)(ii), the disfavored defense can be included, because this is an amended pleading as a matter of course.

Personal Jurisdiction Questions

First, under the International Shoe analysis, for the second prong of do the contacts give rise or relate to the claim, if the answer is no does that end the analysis? If not, what happens when there is a no?
 If the contacts do not give rise, then specific jurisdiction is not possible. You can look to whether there is general jurisdiction because the defendant is essentially at home, although after Daimler, this is highly unlikely outside of the PPB and state of incorporation.

Second, is essentially at home another way to find general jurisdiction, or does essentially at home define general jurisdiction?
Read Daimler. That decision makes clear that general jurisdiction is only where the defendant is "essentially at home." Daimler strongly suggests that this does not extendbeyond PPB and state of incorporation, but the question has not been resolved.

Questions Begin

Question in Bold; Answer in Plain

1) I remember that a defendant isn't allowed to make more than 1 pre-answer motion but I'm struggling to remember what rule explains this. My notes have something about 12c but that doesn't really make sense.


2) What is the difference between the 12g(2) limitations and 12h(1) waivers?

12(g) says you cannot make a new motion with that defense, subject to 12(h). 12(h) deals with whether you can raise the defense at all if you exclude it from a pre-answer motion. Use 12(b)(6) as an example: 12(g) means you cannot file a second pre-answer motion raising a 12(b)(6), but 12(h)(2) says you can still raise a (b)(6) defense in a pleading or in a 12(c) (post-Answer) or at trial. By comparison, 12(h)(1) says you waive disfavored defenses if you omit them from a motion or from a pleading--meaning waived if not included in the first filing.

Note that this is not strictly adhered to: Cts routinely allow subsequent 12(b)(6) motions, even though what should have happened was that the defendant should have answered, then filed a 12(c).

3. In 12f(2), when it says "when a response is not allowed" does that just mean if a responsive pleading doesn't include counterclaims a P/D can't respond, and therefore must simply move to strike, if they want to, within 21 days?

Yes. Again, what is the pleading you are looking to strike things from: One that includes claims for relief or one that doesn't?

Creative Projects--Section B

Armando del Corral

Damian, Daniel, & Gabriela

(Kevin, et al: The file was too large to upload)

YouTube Videos:

Raimundo, James, & Melanie

Sandra, Diana, Lauren

Cori, Josephine, Rebecca, & Andrea


All other poems, songs, and writings 


Creative Projects-Section A


Visual artwork on display in my office.

The follow can be viewed only by clicking the link.

Ani, Nuri, Tahimi audio

Esther & Yilena

David, Jacob, Sergio, Yunet


Sarah, Caitlin, Melissa (doesn't work on Firefox)

Tina, Tal, Roger, Alexis, William


All written poems, songs, etc.

Armando Perez

Monday, May 2, 2016

Q&A Review and Exam

A slight change to the schedule for Q&A Review: I am going to split the sessions up--one Thursday morning and one Thursday afternoon. Creative projects will be presented at the assigned session, but everyone is free to attend both sessions.

Both sessions will be in RDB 2006 on Thursday. Section A will be at 10 a.m., Section B will be at 1 p.m. (Note: The order was chosen via best-4-of-7 coin flip). If you do not plan to attend your assigned section, make sure you get any creative project to me ahead of time.

I have no planned comments, so we will stay for as long as people have questions. And, again, I will answer questions to the blog or via email until 12:01 a.m. next Monday (after which everyone should be in bed). I also am available all week for anyone who would like to go over the mid-term, essays, or anything else.

The exam will be twenty (20) questions, worth four (4) points each. You can write a maximum of 150 words on each, although that should not be necessary. Several questions can be answered in a single sentence--one can probably be answered in six words. You will have four hours. After the jump is fuller details and instructions for the exam.

Thursday, April 21, 2016

For Friday-Section B (Final Meeting)

Thursday audio.

We continue with the Erie Puzzles; we'll definitely do ## 6, 7, 8, and 1; we'll do # 4 if time permits. Given what we revealed about statutes of limitations at the end of class, it should not surprise you that federal courts always apply state limitations periods. But why--what leads to that conclusion?

Wednesday, April 20, 2016

For Friday-Section A

Wednesday audio.

We continue with the Erie Puzzles. Given the possibility that (contra Justice Scalia) it seems possible that arguably procedural rules can abridge, enlarge, or modify--as we see in the statute of limitations example--how have the courts managed to never invalidate a federal rule that conflicted with state law? We will go through Puzzle 7, then circle back to Puzzles 1 and 4; go back through all three and revise your analysis, if appropriate, in light of our discussion today. Consider both the "short" way and the "right" way as to # 1.

Monday, April 18, 2016

For Wednesday

Monday audio.

We continue with the Erie hypotheticals. Now that we have worked through the framework, prepare to discuss these as if you were writing an essay, working through the CREAC of each piece of the analysis. We also will circle back to Hanna--was FRCP 4 valid and controlling in that case. For Questions 4 and 5, see the arguments for both sides of the initial RDA question. Think about statutes of limitations and why we have them (we previously discussed this when talking about relation back) and how that affects the substantive/procedural split.

Saturday, April 16, 2016

Essay VII Sample Answer

 Sample answer after the jump. A few common problems:

1) In general, be precise as to which part of a statute you are citing to. Don't just cite to § 1441, cite to the specific part you're talking about.

2) In general, you need a logical flow to the argument. Think about where you're starting and what you're first legal point is, which in turn may take you to legal points that flow from that. For example, this case was in state court, so don't immediately talk about federal subject matter jurisdiction; talk about removal (getting from state to federal). The removal rules then require you to analyze subject matter jurisdiction, which you will do. But you have to discuss that entire progression.

3) Don't throw out random rules in a series, then come back and apply them. Its Rule/Explanation/Application. State and explain one rule in full (including the textual language, its meaning, and the interpretations that provide the general rule), apply it to the facts, then move on to the next point and do the same thing again.

4) Always begin with the text, not with judicial interpretations. Talking about Strawbridge and the complete diversity requirement before talking about the precise language of § 1332 makes no sense. Similarly, bringing up Mottley and the WPC before you've talked about § 1331 makes no sense.

5) Specific to S/M/J: Remember that § 1332(a) has four distinct provisions and you have to find the one provision that covers the entire case, including all the parties. It's not (a)(1) as to these parties and (a)(2) as to these parties; it's one provision that covers all the parties.

6) Don't make up facts. Don't analyze a different case based on some other facts other than the ones before you (i.e., "if we had this other set of facts, then this analysis would apply").

7) If you throw out a term, you must define it. Saying "the statute requires complete diversity" is insufficient; you have to explain what complete diversity means.

8) Be careful that any conclusion you give is supported by a "because." You can't say "there is no complete diversity" if you don't talk about the citizenship of the parties.

The papers will be outside my office on Monday morning. Feel free to come by to discussion, which I strongly encourage everyone to do.

Friday, April 15, 2016

Erie Hypos

For each, 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
  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.

1) A and X agreed to work together to submit a bid for a government contract; they signed a "Teaming Agreement" that divided duties between them, but reflected an agreement that whoever won the contract would hire the other as a subcontractor. X submitted a bid and was identified as the "primary contractor;" when it was awarded the bid, it refused to subcontract A, as per the Teaming Agreement. (Note that the facts of this case should be familiar).

A sues X for breach of contract. Under state law, an "agreement to agree" is not enforceable.

2) A sues X in federal court on a state-law claim for fraud. State Rule of Civil Procedure 1.9(b) provides that, in pleading fraud, a party must "describe with particularity the circumstances constituting fraud and state with particularity facts giving rise to an inference that the defendant acted with the requisite state of mind."

3) A sues X in federal court for medical malpractice. Practice in the district is to use juries of 6 in civil cases. State law provides that "a valid verdict in a case for medical malpractice can only be rendered by a unanimous jury of twelve citizens." Jury selection is about to begin before trial--how many jurors should the court seat? See FRCP 48.

4) A sues X in federal court for medical malpractice by filing a complaint with the district court. State law requires that plaintiffs bringing a claim for professional malpractice must file, along with the complaint, a Certificate of Merit (COM); this is a signed affidavit by a licensed and expert professional in that area, declaring that there are good grounds for the lawsuit. Any complaint not accompanied by a COM shall be dismissed.

5) A sues X in federal court for defamation. The state has a statute designed to prevent Strategic Lawsuits Against Public Participation ("SLAPP" suits). SLAPP suits are lawsuits against citizens for speaking out on matters of public import, designed to deter citizens from engaging in public debates and discussions. Under the SLAPP statute, a defendant may file a Special Motion to Strike a SLAPP Suit; the motion must be granted unless the plaintiff can show, through pleadings and evidence, a "high probability that the plaintiff will prevail on the claim."

6) A sues X in federal court for negligence arising from a car accident. The lawsuit is filed on March 31, 2016; the accident occurred on April 1, 2012. State law provides that negligence claims are subject to a two-year limitations period. Congress has enacted § 1659, which provides that "A civil action may not be commenced in a court of the United States later than 4 years after the cause of action accrues."

7) Same as # 6, except the federal limitations period comes not from § 1659, but from recently enacted FRCP 4.5.

8) Under state law, an action "commences" (and the limitations period is tolled--that is, the clock stops running) when the summons and complaint are served on the defendant. If service occurs beyond 60 days from the date of filing and after the statute of limitations has expired, the claim is untimely. But if service occurs within 60 days of filing and filing occurs within the imitations period, the action will be deemed commenced on the date of (timely) filing, even if service occurs outside the limitations period, making the claim timely. The limitations period is two years.

A sues X for products liability. A was injured on August 22, 2013; the complaint is filed on August 19, 2015; service occurs on December 1, 2015.

For Monday/Tuesday--Both Sections

Friday audio--Section B, Section A.

We continue the discussion with Hanna.
  • How do we evaluate the validity of an FRCP? What does Hanna say about the validity of the rules and why? What service rule applies in Hanna?
  • What makes something a "general rule of practice and procedure"? What does "procedural" mean, as compared with "substantive"? What does it mean to "abridge, enlarge, or modify" a substantive right?
  • How does Hanna, in dicta, alter the Erie/York analysis for the RDA?
  • If no federal constitutional provision, or statute controls, what federal law might be in conflict with the state rule? Where else might federal law (particularly procedural rules) come from?
  • What are the three types of rules (as between substantive and procedural) that Hanna identifies?
  • The flow chart (which was on the board for Section B and should be posted to the blog this weekend) reflects the precise order/wording in your analysis.
  • And note what Glannon says about simply using the labels of substantive or procedural.

We then will spend Monday and the remainder of our meetings working through the following hypotheticals, designed to test each prong of that flowchart. Be ready to work all the way through each question, as if you were writing an essay.

Whiteboard from today