Wednesday, January 28, 2015

For Monday-Section C

Wednesday audio--Hour I, Hour II.

Essay # 1 is due at the beginning of class on Monday. Please follow instructions as to word count, cover page, etc. I will post Essay # 2 on Sunday at noon; it will be due at the beginning of class on Wednesday, February 9.

Do not worry if you are feeling confused about FRCP 15 or about responsive pleadings. For right now, I just want you to enough to see the pieces initially fit for purposes of making motions. We will get deeper into pleadings and amendments in a few weeks.

On Monday, we will cover The Idea of Notice Pleading (if you read it for today, please review before class). This will get us into the requirements of FRCP 8(a)(2) and when a pleading is sufficient to survive a 12(b)(6) motion to dismiss--how much details, how much fact, etc.. Please review the assigned forms. This also has our first chapter from Stories, with background and details on Conley.  Think about the similarity between FRCP 12(e) with FRCP 12(b)(6) dismissals for factual sufficiency.

We then will get to An Alternative: Fact or Heightened Pleading, a system in which more facts are required. What does it mean to plead "with particularity"? What is the difference between the PSLRA (discussed in Tellabs) and FRCP 9(b)? What is the significance of the FRCP 9(b) speaking of "in alleging fraud or mistake"? What are the arguments for singling fraud out for heightened pleading (a departure from trans-substantivity) and do those arguments work?

On Wednesday, we will turn to The Present and Future of Federal Pleading, covering the Court's several recent cases that have fundamentally altered pleading.

Rule 42 : Sawada v. Endo


The following picture is an excerpt from the Sawada v. Endo, a case that we to read for our property class and I believe we have a practical application of Rule 42(a) or 42(a)(2) in action by the trial court.

Highlighted in yellow is the date that the accident occurred during the case. Notice in highlighted in blue and green highlighted sections that both plaintiffs filed their pleadings/claims separately and on separate dates. In the section highlighted in red it states that "after a consolidated trial on the merits judgement was entered" for both plaintiffs at the same time. I would imagine for the purposes of finances and expediting the case, the trial court pursuant to 42(a)(2) consolidated the cases and held one trial.The civil actions brought by the Sawada's  arose from a common question of fact. Again this was not stated in the case, this is an observation inferring that the trial court used Rule 42



For Friday-Section A

Wednesday audio. Please go back and review the text of all the rules we discussed, especially FRCP 15(a)(1). Make sure you understand the text in light of our discussion; we are doing a lot of parsing of text and you want to understand how to read the rule. Again, we will come back to all of Rule 15 in a few weeks.

Also, let me add one more example of legal insufficiency: When something besides the basic legal rule bars the action. One example is the statute of limitations, in which an outside rule (the S/L) bars the claim, regardless of the facts pled. Another example is an administrative exhaustion requirement (you must bring an administrative claim before filing a lawsuit, in which the failure to exhaust bars the claim, regardless of the facts pled.

We will continue with Motions. Review FRCP 12(h)(2) and (h)(3)--why are these defenses treated differently? Then we will work through the following hypotheticals involving waiver under 12(g) and 12(h):

1) A v. X. X moves to dismiss for insufficient process; the motion is denied. X then Answers, asserting improper venue and failure to state a claim.

2) A v. X. X moves to dismiss for improper venue; the motion is denied. X then Answers, then files a motion to dismiss for lack of subject matter jurisdiction.

3) A v. X. X Answers, raising no 12(b) defenses. Four weeks later, X realizes that venue is improper and that A has failed to state a claim; he wants to file an Amended Answer including those two defenses.

4) A v. X. X moves to dismiss for lack of personal jurisdiction; the motion is denied. X then moves to dismiss for failure to state a claim.

We then will move to The Idea of Notice Pleading (if you read it for today, please review before class on Friday). This will get us into the requirements of FRCP 8(a)(2) and when a pleading is sufficient to survive a 12(b)(6) motion to dismiss--how much details, how much fact, etc.. Please review the assigned forms. This also has our first chapter from Stories, with background and details on Conley.  Think about the similarity between FRCP 12(e) with FRCP 12(b)(6) dismissals for factual sufficiency.

Again, I will post the question for Essay # 2 by noon on Sunday; it will be at the beginning of class on Wednesday, February 11.

Tuesday, January 27, 2015

Restyling

You may have noticed in reading some cases that they attribute slightly different language to a rule or they cite a part of the rule somewhat differently. In 2007, the FRCP underwent a "Restyling," which attempted to modernize and simplify the language of the all the rules and to organize them a bit more coherently. Some language was changed; some provisions were placed in a different section or sub-section of the rule. But these changes (as the ACN makes clear) were stylistic only and did not change the meaning of the rules.

So, for example, the text that is now a stand-alone provision in FRCP 12(d) (dealing with converting a 12(b)(6) motion to a summary judgment motion) used to be repeated in two provisions--once at the end of 12(b) and once at the end of 12(c). For another, Rule 20(a) used to be one long paragraph talking about plaintiffs and defendants together, as opposed to broken into sub-sections and sub-parts as it is now. For another, Rule 21 used to read "Misjoinder of parties is not ground for dismissal of an
action," while it now reads "Misjoinder of parties is not a ground for dismissing an action." This document contains a chart laying the pre-2007 text next to the Resyled text for each rule.

All of which is to say, don't be confused if you see slightly different rule #s or slightly different language; they mean the same. For purposes of discussing the text of a rule, use the Restyled language and the Restyled numbering.

Monday, January 26, 2015

EXAMPLE OF A COURT USING RULE 42

Below is a link for a really good example of how a court consolidates several different actions into one action if the individual actions are within the court's jurisdiction and they all involve a common question of fact or law (Rule 42). On page 2, under "Background", the court explains how three different actions brought by three different individual plaintiffs (a hedgefund (Perry), a mutual fund (Fairholme) and an insurance company (Arrowood)), and the plaintiffs of a class action have made claims that are "overlapping, though not identical...." Further down, at the bottom of page 2 and at the top of page 3, the court lists the case name of all of four pending actions and the district court which has jurisdiction (District Court for District of Columbia or "D.D.C."). Without explicitly saying it, I believe that this how the court demonstrates that it is applying Rule 42.

Lastly, this may become more useful after next class, but Rule 12 is also discussed extensively and applied. (Rule 12 is first mentioned on page 10).
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013mc1288-46

For Wednesday-Section C

Monday audio--Hour I, Hour II.

We will continue with Responding to a Pleading: Motions; finish reading the entire section. Look at the 7 defenses in FRCP 12(b). What do they all entail; if granted, will dismissal for each be with or without prejudice and why? What is the linguistic connection between 12(b)(6) and 8(a)(2)? How does 12(h) divide the 7 defenses into categories and how do they function?

Work through the following hypotheticals dealing with FRCP 12(g) and 12(h) and decide whether the defenses are properly raised:

1) A v. X. X moves to dismiss for insufficient process; the motion is denied. X then Answers, asserting improper venue and failure to state a claim.

2) A v. X. X moves to dismiss for improper venue; the motion is denied. X then Answers, then files a motion to dismiss for lack of subject matter jurisdiction.

3) A v. X. X Answers, raising no 12(b) defenses. Four weeks later, X realizes that venue is improper and that A has failed to state a claim; he wants to file an Amended Answer including those two defenses.

4) A v. X. X moves to dismiss for lack of personal jurisdiction; the motion is denied. X then moves to dismiss for failure to state a claim.

We then will move to The Idea of Notice Pleading. This will get us into the requirements of FRCP 8(a)(2) and when a pleading is sufficient to survive a 12(b)(6) motion to dismiss. Please review the assigned forms. This also has our first chapter from Stories, with background and details on Conley.

For Wednesday-Section A

Monday audio. Essay # 1 is due next Monday, February 2. Essay # 2 will be on FRCP 11; it will be posted this Friday afternoon and will be due Monday, February 9.

We will continue with Responding to a Pleading: Motions; finish reading the entire section. Look at the 7 defenses in FRCP 12(b). What do they all entail; if granted, will dismissal for each be with or without prejudice and why? What is the linguistic connection between 12(b)(6) and 8(a)(2)? How does 12(h) divide the 7 defenses into categories and how do they function?

Work through the following hypotheticals dealing with FRCP 12(g) and 12(h) and decide whether the defenses are properly raised:

1) A v. X. X moves to dismiss for insufficient process; the motion is denied. X then Answers, asserting improper venue and failure to state a claim.

2) A v. X. X moves to dismiss for improper venue; the motion is denied. X then Answers, then files a motion to dismiss for lack of subject matter jurisdiction.

3) A v. X. X Answers, raising no 12(b) defenses. Four weeks later, X realizes that venue is improper and that A has failed to state a claim; he wants to file an Amended Answer including those two defenses.

4) A v. X. X moves to dismiss for lack of personal jurisdiction; the motion is denied. X then moves to dismiss for failure to state a claim.

Sunday, January 25, 2015

Some responses

A couple of quick responses:

To Michael's question: A lot depends on what happens on remand. Claim preclusion requires a final judgment on the merits--that the litigation on the claim is resolved. If, on remand, the judge believed the Fagerstroms could prevail under an easement theory, she might give them a chance to replead (we'll talk about repleading this week and amendments in a few weeks) and reframe their claim on a different theory--much as the plaintiff in PAE (which we'll discuss on Monday and Wednesday) tried to replead her claim into a breach of a different contract. If not, Michael is correct that once the decision is final that the Fagerstroms do not own the land via adverse possession, they could not bring a new lawsuit claiming right to land via prescriptive easement--the claim--ownership of the land--has been adjudicated.

To Mr. Hendrix's lawsuit: Courts have a wide range of statutory powers to handle prisoner lawsuits, including the power to sua sponte reject the claim as frivolous (which this obviously is) without having to await a response from the defendants. One possible Rule 11 sanction would be an order requiring Mr. Hendrix to obtain court permission before filing any future lawsuits--this has been imposed on numerous prisoners in the past. Mr. Hendrix is what the courts refer to as a "frequent filer," so he might be a good candidate for such an order. By the way, Hendrix is not the first one to think of this type of lawsuit--last year, an incarcerated Pittsburgh Steelers fan attempted to overturn the result of a game not involving the Steelers that caused the team to miss the playoffs. That case never went anywhere, either.
In response to Michael Pego's post, I would agree with Michael.  My understanding of res judicata, combined with what we learned about the concepts of prescriptive easement and adverse possession in property law, is that because with the those two concepts, one being an alternative to the other and vice versa, once it has been decided which one is granted, the Fagerstroms could not now try and file a claim for prescriptive easement.  The two are intertwined and the litigation with respect to the land has already been decided so there would be no other relief for them involving the land.

Saturday, January 24, 2015

Unlicensed Practice of Law

It seems to me there are other issues that apply to the prisoner's notice of suit against NFL and others before it even gets to 11b - such as the unlicensed practice of law? He is not acting pro se, so I don't think he can represent anyone else as he is claiming to do...

Res Judicata/Claim Preclusion

Hope everyone's having a great weekend! 

In our last Property class with Professor Robbins for section C, we went over the case Nome 2000 v. Fagerstrom. For those with a different professor and maybe didn't cover this case, it involved an adverse possession claim (more details below).

The court held that the plaintiffs had adversely possessed the Northern part of the defendant's land, but not the Southern portion. In the opinion, the judge commented that although the plaintiffs couldn't claim the Southern part of the land under adverse possession, they could possibly have a claim under prescriptive easement. His comment got me thinking... how does this fit into res judicata?

Would the plaintiffs be able to bring a new claim for prescriptive easement for the Southern part of the land? In my brief understanding of res judicata, I don't think they would. The claim for prescriptive easement could have been litigated in in the first action (they could have listed the claims as alternatives, regardless of the inconsistencies, in accordance to FRCP 8(d)(2) and 8(d)(3)).

What do you guys think?

Thanks,

Michael Pego

Prisoner sues NFL for $88 billion over Dez Bryant's overturned catch

Hey guys,

I came across this article today and thought it would be a good read since we are currently covering FRCP 11.

If any of you follow the NFL, then I am sure you are aware of the controversial call the referees made in the Cowboys and Packers game, where Dez Bryant made a potential game winning play and the referees upon review overturned the catch, resulting in the Packers winning the game and advancing to the NFC Championship.

"Terry Hendrix, an inmate in a Colorado correctional facility, has filed an $88 billion — that's billion with a "B" — lawsuit against the NFL over the reversal. The total figure is$88,987,654,321.88, with both 88s presumably a reference to Bryant's uniform number."

"In his handwritten petition, Hendrix, a prisoner at Fremont Correctional Center in Cañon City, Colorado, seeks the money for reasons including but not limited to "for but not limited to: negligence, breach of fiduciary duty, and also wreckless [sic] disregard."

"Hendrix named NFL Vice President of Officiating Dean Blandino, game referee Gene Steratore and NFL commissioner Roger Goodell in the suit. He filed "on behalf of Dez Bryan #88, all Dallas Cowboys fans, and all people in or and [sic] from the sovereign republic of Texas," claiming that the plaintiffs "did suffer a true injury in fact when the respondent(s) did commit a fraud," referring to the "video reversal" of an "outstanding thirty one (31) yard pass reception by Dez Bryant #88." 

http://sports.yahoo.com/blogs/nfl-shutdown-corner/prisoner-sues-nfl-for--88-billion-over-dez-bryant-s-overturned-catch-154343589.html

When you click on the link, scroll down and you will find the handwritten petition.

In this case, as per rule 11 (a), there is only a signature by Hendrix since he is unrepresented. Do you think Hendrix has violated rule 11(b)? Can he get sanctioned? 



Friday, January 23, 2015

Potential Civil Rights Issues


Talk about potential for civil rights violations!  This was in the news yesterday:
“Radar devices that allow police officers to effectively see into suspects' homes raise 'privacy concerns of the highest order,' top lawmakers on the U.S. Senate Judiciary Committee said Thursday.
At least 50 U.S. law enforcement agencies have secretly equipped their officers with that technology, with little notice to the public or the courts. The devices work like very fine motion detectors, capable of determining whether someone is inside a building by detecting movement as slight as human breathing.”
(USA TODAY 6:49 p.m. EST January 22, 2015) http://www.usatoday.com/story/news/2015/01/22/police-radar-leahy-grassley-letter-holder/22172597/

In Roth v. Green, Roth was not successful with his 42 U.S.C. §1983 action. I imagine that charges that result from police using this type of “search” may well be deemed in violation of the Fourth Amendment's guarantee against unreasonable searches and seizures, should a plaintiff bring an action resulting from this invasive police technique that has “come to light”.

Essay # 1: Joinder

Essay # 1, on Joinder, is after the jump. Read the question carefully; do not fight it or the facts that you know from this problem or any other documents we have discussed in class. Please follow all the instructions and rules on the Essay Information sheet, as well as the structure of the sample answer. One thousand words is plenty of space, but don't waste time or space.

Good luck.

For Monday-Section A

Friday audio.

We will continue with FRCP 11, on the question of whether, given FRCP 11(b)(3), VOA's pleading in the alternative looks worse than McCormick's. Look carefully at 11(c) and the process for seeking sanctions; how does the "safe harbor" work and why were Green's efforts to get sanctions procedurally improper?

We then will begin Responding to a Pleading: Motions, which will cover all three classes next week. Just for Monday, look at FRCP 4, 5, 7, and 12(a) and 12(b), along with PAE, and pp. 403-09 in Glannon. We will get to the remainder of the assignment (including the waiver hypos) on Wednesday and Friday of next week. Have the VOA Complaint with you; look at the Summons at the end of the complaint, which shows what that document (described in FRCP 4) looks like.

Thursday, January 22, 2015

Sample Essay Answer

-->
After the jump is a sample answer to an essay question (this is from last year). As I said, do not try to understand the legal analysis, since we have not gotten to this material yet. Note instead the structure and the CREAC--state and explain the rule, then apply it to your facts and explain. Note how each paragraph has a heading sentence, with everything else explaining it.

In the question, the students were given an Answer (a pleading filed by defendant) and told they were new defense counsel. It asked them to explain how they can go about filing a new answer and what changes they would make in a new answer (i.e., what problems they can identify in the document they received).