Sunday, May 8, 2016

Rule 14 Question

If two defendants—who are co-parties to the original claim—want to bring a claim against a third-party defendant who is liable to them for all or part of the claim, may they join as third-party plaintiffs against a third-party defendant or must they bring their own separate claims against the third-party defendant. 

Remember that every claim is formally bilateral--one party seeking relief, one party defending, one right. So as a formal matter, each defendant is asserting his own distinct third-party claim against that one third-party defendant. But the defendants can do it in a single pleading.

Summary Judgment Question

defendant, who doesn't carry the initial burden of production, files a motion for summary judgment against the plaintitff for insufficient evidence.

plaintiff shifts the burden to the defendant 

defendant is unable to meet his burden.

does this mean that the summary judgment is not only denied, but is granted to the plaintiff even though the plaintiff is the one who never initially filed it? or does the plaintiff then need to file her own motion for summary judgment?
S/J is definitely denied. Since, in your hypo, the plaintiff did not move, there is nothing for the court to directly grant. But then note FRCP 56(f) (which we did not discuss in class), which allows the court to grant summary judgment for the non-movant, although only after giving notice and an opportunity to respond.

Subject Matter Jurisdiction Questions

It seems folks have turned to that part of the class.

For purposes of supplemental jurisdiction and 1332, if the defendant properly impleads a third party defendant that is from the same state as the original plaintiff will that alone undermine 1332 leading the court to lack subject matter jurisdiction over the additional party or does there have to be then a claim asserted against that third party defendant by the original plaintiff to violate 1332.

The second one. There is complete diversity between the defendant and the third-party defendant, so, assuming the amount-in-controversy exceeds $ 75k, § 1332 is satisfied. Now, if the plaintiff tries to assert a claim against the third-party defendant, that would destroy complete diversity. And § 1367(b) exists to prevent that very move.

More below.

I have a question concerning complete diversity and whether it would be better to use supplemental jurisdiction as the basis for the court's jurisdiction.

As an example, let's say A (FL) is suing B (CA). B now sues C (a corporation from NY, with PPB in FL) using rule 14 impleader. So:

A  (FL)


B  (CA)


C  (NY/FL)

Can the court still have jurisdiction under 1332(a) over B's indemnification claim against C, or does diversity not work because C is from NY as well as FL therefore destroying complete diversity in the action as a whole? Would it be better to argue for supplemental jurisdiction under 1367? I just remember that it is better to try to use 1332 first because you don't have to prove common nucleus of operative fact or worry about the court exercising its discretion.
Same as above: Assuming the amount-in-controversy requirement is satisfied, the court could exercise diversity jurisdiction over this claim. Our concern for "destroying" complete diversity is only with respect to the plaintiff and any claims he may bring or try to bring, either initial defendants or third-party defendants; it is not for claims brought by other persons. Of course, there also would be supplemental jurisdiction over B's claim, since anything that does arise out of the same T/O also is part of the same Article III case or controversy. The best move is always to assert all possible bases for jurisdiction.

Another Personal Jurisdiction Question

In conducting a personal jurisdiction analysis and looking at whether the court has general jurisdiction over the defendant, it looks to whether the Defendant is as home. For a corporation, that would be the place of incorporation or principal place of business. In defining PPB for subject matter jurisdiction, SCOTUS applied the nerve center test in Hertz as "where corporation's officers direct, control, and coordinate the corporations, activities." Is that definition applicable in defining a corporations PPB for a personal jurisdiction analysis or is that definition only applicable in a SMJ context?

 Yes. Domicile for corporations is the same for personal jurisdiction as for subject matter jurisdiction. But for unincorporated entities, (LLCs, partnerships, etc.), the analysis departs. For personal jurisdiction, we look at the unincorporated entity's state of creation and PPB, rather than the domicile of its members/partners (as we do for subject matter jurisdiction).

Two entirely unrelated questions

In regards to Erie hypo 6, we found that 1659 was the “act of Congress that provided otherwise”, and that perhaps it is rationally related to the due administration of justice because of concerns with federal uniformity. But we also found that it could aggravate the administration of justice because of the burden it would place on discovery. Being that there are two contradicting interpretations, are we required to find that an outside Congressional SOL act is not valid, in light of the rule that the state’s statutes of limitations always apply on state law claims?

You are misunderstanding a couple pieces of this. This is rational-basis review (and think, from Con Law, of how often anything is invalidated under rational basis review). You are not evaluating the merits of the law, just whether could have a good reason for doing it. So could Congress decide that a federally uniform, slightly longer statute of limitations is conducive to justice? Does this limitations period rationally do that? If so, it's valid. There is nothing to consider on the other end. Besides, I am not sure how statutes of limitations specifically burden discovery.

And watch that last clause. The reasons state S/Ls always apply is because there is no federal law to the contrary. That was the point of this hypo--if Congress wanted to, it could create federal law to do so.

Does Rule 4(m) govern the time allowed for the service of an amended complaint? 
Not if the parties to the amended complaint have already been served and are already in the case. Service under Rule 5 (for everything after initial service of process) is generally done on the same day as the filing--the plaintiff's lawyer has its docket messenger file whatever it is at the courthouse, then walk/bike to the offices of local counsel and serve it on opposing counsel.

Venue Question

This might be an obvious, but I wrote down in my notes from class that if the D wants to transfer venues (even if the current one is proper), that the D would file a 1404(a) motion. And that a 1404(a) motion is different from a 12(b)(3) for improper venue. 

If this is the case, does that mean that the 1404(a) must be included in the first responsive pleading or waived like the 12b3? 

Also, does that mean that a 12(b)(3) motion for dismissal is only filed by D for improper venue and that the two possibilities in 1406 (dismissal or transfer) are both up to the court's discretion?

Or am I completely wrong and both (imporper venue and change of venue) would be covered under a 12(b)(3) motion? 
Review Atlantic Marine, which does a good job describing the differences between these two defenses. A change-of-venue motion is not the same as a 12(b)(3); 12(b)(3) argues that venue is proper, while § 1404 argues that venue is proper, but that a different district is more proper.
So a 12(b)(3) motion argues that venue is improper. Section 1406 then tells the court what to do if it agrees that venue is improper--dismiss (more likely) or transfer (if justice requires). A § 1404 motion simply asks for the case to be transferred.

A change-of-venue motion is not subject to waiver under FRCP 12(h)(1).

More Personal Jurisdiction

We seem to have found the area of confusion. FWIW, these questions (along with some that I got yesterday) suggest that people are trying to work entirely off the shorthand flow chart, rather than integrating the flow chart with the actual language and discussion from the cases that form the flow chart. Don't work solely off your class notes and the way things were discussed and synthesized in class; go back to the primary sources (cases, rules, statutes) for the actual language and context.

I'm having trouble differentiating "Stream of Commerce" from "Stream of Commerce Plus"
With "Stream of Commerce" can the defendant avoid purposeful availment if he puts his product into the entire U.S. as opposed to a specific state? Or is that the standard under Stream of Commerce Plus?
Stream-of-commerce means the defendant placed the product into the stream of commerce with the expectation/foreseeability that the product would end up in the forum. Stream-of-commerce-plus means the defendant placed the product into the stream with the intention that it would end up there, based on facts indicating an intent to serve the forum (marketing, advertising, sending the product to the forum, designing the product for the forum, etc.).

The point about the US as a whole as opposed to a single state goes to what sovereign the product is being sent to.

Under the Int'l Shoe test's purposeful availment section: Is the only difference between the "Tort (in-state)" and the "Effects Test" that in the tort in-state, the tort actually occurs in state? And in the Effects Test the tortious conduct occurs out of state, but it was expressly aimed at the forum state  and the harm caused by the act is felt within that state? 

In regards to the forseeability reqm't of Int'l Shoe:  I'm a bit confused as to the order in which to look to forseeability so want to confirm. Would you first determine that the D purposefully availed under one of the listed ways, and then look to forseeability? Which because of the purpose availment the D could reasonably anticipate being haled into court? So it would automatically be satisfied?  
Those two things are part of the legal standard, as laid out in WW and BK: Minimum contacts means the defendant purposefully availed of the benefits and protections such that he could reasonably anticipate being haled into court. If a defendant purposefully availed by doing one or more of the things we discussed (effects test, placing product into the stream, owning property, etc.), then it is foreseeable that he could be haled into court.

In regards to Daimler and the "essentially at home" test which establishes General PJ - I want to make sure I understand it correctly: In the 2nd part of the Int'l Shoe Test where you determine if the contacts give rise to the claim, this is where the specific jurisidciton or general jurisdiction distinction is decided. If contacts do give rise to the claim, specific personal Jx and continue to part 3 of test. If no contacts give rise to the claim, but operations are continuous and systematic enough to render it at home in that forum, then general personal jx. So the court would automatically have jurisdiction. 

Never use that last sentence--nothing is "automatic." This is mostly the right analysis, but you're too facile in your conclusion. Daimler rejects continuous/systematic/substantial business as a basis for general jurisdiction and suggests that a defendant is essentially at home only in its domicile/PPP/state of incorporation. In FN 19, the Court suggests that there may be an "exceptional case" in which a defendant is at home in another place--and note the case it cites to as an example. But it is going to be exceptional and pretty rare. So if the contacts do not give rise and if they do not, you ask whether the defendant is essentially at home. But since you're not in the PPB or state of incorporation, your conclusion is likely to be that there is no general jurisdiction, unless you can argue this is the exceptional case. But, again, read Daimler as a whole and try to think about what facts it would find sufficient.

Saturday, May 7, 2016

Another Personal Jurisdiction Question

In dealing with personal jurisdiction,  what's the point of determining whether there is specific or general jurisdiction when determining if the contacts give rise relate to the claim?

Because if the contacts do not give rise or relate, you cannot have specific jurisdiction, only general. But general jurisdiction is only available where the defendant is "essentially at home," which may be limited only to PPB and state of incorporation. And even if it goes beyond that (Daimler speaks of "exceptional circumstances") it needs an extraordinary amount of contact (recall Daimler's discussion of the only case in which the Court has recognized general jurisdiction). So even if you identify contacts, finding that they do not give rise or relate may mean the court lacks jurisdiction. That's the point.

Friday, May 6, 2016


I have a question on burden of production. 

If a party that initially had the burden (party 1) causes the burden to shift to party 2 then party 2 can either shift the burden back or he can meet his burden of production.

My question is what is the difference between party 2 shifting the burden and party 2 meeting the burden.

It's the same difference as Pty I shifting as opposed to meeting the burden. If Pty II meets the burden, the case goes to trial; Pty I need not offer further evidence. If Pty II shifts the burden, then Pty I must offer further evidence to get the case to trial.

So consider Young and Title VII: Under Title VII, the burden of production shifts to the D to offer evidence of legitimate non-discriminatory reasons; if D offers these, the burden shifts back to the P to show these reasons are false or pretextual. If P does not offer evidence, D wins.

More on 12(h)

We have read the blog questions about amendments and disfavored defenses, and we are now a little bit confused, specially in the following scenario:

1. Plaintiff files a complaint
2. Defendant files a responsive pleading which does not include a disfavored defense 12(b)(2)-(5).
3. Plaintiff amends his complaint.
4. Now that defendant has to answer again, can he include a disfavored defense?

We understand that under Rule 12(h)(1)(B)(ii) whatever you did not include in a responsive pleading or in an amendment under Rule 15 is waived, however, if in the period that the defendant had to amend his responsive pleading as a matter of course the plaintiff amended his complaint, can the defendant now add the disfavored defenses considering there is a new controlling complaint?
If you recall, this was Question #4 on the Preliminary Exam. There arguments to be made either way, so the answer is not clear-cut. But a plain-language reading of 12(h)(1) should say no. The defendant must raise disfavored defenses in the first thing filed and here, the first thing filed was a motion. The ultimate disposition of that motion does not change that fact.

But this is a specific application of 12(h). It is not inconsistent with any of the previous questions.

Defense Questions

1 - When we were studying venue, finishing Atlantic, there is a class note regarding "Choice of law", and I have that originally, when there was a transfer of venue, under 1404(a) or forum-non-convenience Doctrine, the transferee applies the transferor's law. Is that correct? 
Read Atlantic Marine; that's where this comes from. But, as that case makes clear, one of the changes the Court imposed for transfers in violation of a forum-selection clause is that the transfer benefit does not apply.

2- When is the last opportunity to raise Rule 8 (c) defenses?
 There is no formal deadline for 8(c) defenses, unlike the 12(b) defenses. A defendant can always seek to amend an answer to add an affirmative defense, subject to 15(a)(2)/Foman analysis.

4- Which defenses can be brought when responding to an amended pleading?
All the defenses that could be brought in responding to an original pleading, subject to the waiver rules in 12(h).

5-  Which defenses can be brought when amending a response?  can we consider the amended response as the first answer? If the defendant did not raise a disfavored defense in his first answer, can he raise it in the amended response?
Again, read 12(h)(1). It says a motion, a responsive pleading, or an amendment (here to a responsive pleading) filed as a matter of course. So yes, if it as an amended answer filed as a matter of course, within the meaning of FRCP 15(a)(1).

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.