Friday, March 27, 2015

Jury miscounts votes


Here is another gender discrimination case with an interesting hiccup. Ellen Pao filed a discrimination case against her former employer, venture firm Kleiner, Caufield, Perkins & Byers and appears to have lost. The jury  found that Pao's gender was not the reason for her not being promoted nor for terminating her employment. But the Jury miscalculated the votes needed for one of the claims and voted 8-4 against Pao on the claim that the firm retaliated against her for complaining about harassment and filing the lawsuit, so the verdict is not final. At least 9 jurors are needed for the jury's decision. The judge sent the jury back to deliberate again on that last claim.

Wednesday, March 25, 2015

For Monday-Section C

Wednesday audio-Hour I, Hour II.

Today's class should make clear that this is going to be the most text-intensive portion of the class--we are going to be parsing the language of Article III and the various statutes, trying to determine what phrases (e.g., "between citizens of different states") mean and why. So you really have to spend time reading and marking up this language, seeing the precise language used, thinking about what it means, thinking about how everything fits together.

We will continue with Diversity Jurisdiction.

   • What was the jurisdictional analysis in Mas?
   • How is domicile determined for entities such as corporations? What about other entities? What were the jurisdictional problems in Belleville? Zambelli? What is the problem with the jurisdictional allegations in VOA?
   • Consider whether there is jurisdiction (and under which provision) in the following and why:
     A (Mexico) v. X (FL)
     A (TX) v. X (France)/Y (FL)
     A (Spain) v. X (France)/Y (FL)
     A (TX)/B China v. X (Taiwan) 
   • How does § 1359 operate? What was the jurisdictional analysis in Kramer?
   • What is the purpose of the amount-in-controversy requirement? How does a court determine the amount in controversy?
   • What can/should a court do when a party to a case destroys complete diversity?
   • How does FRCP 19 affect jurisdiction? Consider the example we used earlier in the semester: Co. 1 sues A, its former employee, to enforce a non-compete agreement and to prohibit A from going to work for Co. 2. Now imagine that Co. 1 is from Delaware, Co.2 is from Delaware, and A is from Pennsylvania. What would the jurisdictional analysis look like?

I expect to get to Federal Question Jurisdiction by late Monday and certainly on Wednesday.
   • What is the policy behind placing federal-question cases in federal court?
   • Read Mottley carefully. What is the "Well Pleaded Complaint Rule" and how does it apply in that case?
   • Note all the various ways that Congress can draft an "arising under" statute.
  

Summary judgment and burden-shifting from SCOTUS

SCOTUS today decided Young v. UPS, involving claims under the Pregnancy Discrimination Act. A lot of the opinion involves substantive issues under the statute. But there is extensive discussion of summary judgment and what parties must do on summary judgment with the McDonnell-Douglas burden-shifting framework. Have a look.

Rule 11 on "Better Call Saul"

I do not think it would make any sense to respond with a Rule 11 letter. I agree with responding a "demand letter" with another "letter", but there are no "Rule 11 letters". McGill has not filed a suit/complaint, so the facility's Counsel cannot even consider filing a motion. No case even exists yet.

For Monday-Section A

Wednesday audio.

Today's class should make clear that this is going to be the most text-intensive portion of the class--we are going to be parsing the language of Article III and the various statutes, trying to determine what phrases (e.g., "between citizens of different states") mean and why. So you really have to spend time reading and marking up this language, seeing the precise language used, thinking about what it means, thinking about how everything fits together.

We will continue with Diversity Jurisdiction. No new reading, but be sure to review that section.
   • What is the difference between complete and minimal diversity? What does Article III require? What does § 1332 require?
  • Why require complete diversity? How does the complete diversity requirement support the underlying policy goals of § 1332?
   • What does "citizenship" mean for § 1332 purposes? How do we figure citizenship out?
   • What was the jurisdictional analysis in Mas?
   • How is domicile determined for entities such as corporations? What about other entities? What were the jurisdictional problems in Belleville? Zambelli? What is the problem with the jurisdictional allegations in VOA?
   • Consider whether there is jurisdiction (and under which provision) in the following and why:
     A (Mexico) v. X (FL)
     A (TX) v. X (France)/Y (FL)
     A (Spain) v. X (France)/Y (FL)
     A (TX)/B China v. X (Taiwan)

Quick Note on Essay # 5

You may read, rely on, and cite the cases cited in the district court order that you are critiquing, although they likely will not be the focus of your answer.

Rule 11 on "Better Call Saul"

I agree with Ashley in that the issue is that Rule 11 applies to documents filed with the court. But Counsel wouldn't be able to file a  Rule 11 motion with the court yet, even if McGill did file a complaint with the court, it would have to be notice (or letter as in this case). The Advisory Committee Notes in Rule 11 discuss a "21 day safe harbor," so Counsel would have to send notice and McGill would have 21 days to remedy the issue (if there is one) before the motion gets filed.

Answer to post

It would not be a Rule 11 letter, but a motion.  (Not sure there is much difference in this case?) As well, it has to "describe the specific conduct that has violated Rule 11(b)".  The problem is, Rule 11(b) only deals with documents that are submitted to the court, not to the other party involved in the suit.  In this scenario, McGill served the letter to the facility, not the court.  Therefore, Rule 11(b) would not apply to that document.

Tuesday, March 24, 2015

Rule 11 on "Better Call Saul"

For those of you not watching Better Call Saul, you should begin as soon as possible. This week even included a prominent role for FRCP 11.

Our hero, lawyer Jimmy McGill (who eventually will become Saul Goodman) discovers that an assisted-living facility is stealing money from its residents. McGill serves a "demand letter" (not really a thing, although many states require a plaintiff to serve a "Notice of Suit" letter on the defendant prior to filing a complaint) on the facility, which is turned over to its counsel. Counsel then insists "the best response would be to send a Rule 11 letter and have [McGill] sanctioned," because McGill had "no good-faith basis to threaten any litigation."

For the prize: Identify the problems with this discussion and use of Rule 11.

Monday, March 23, 2015

For Wednesday-Section C

Monday audio--Hour I, Hour II.

We will begin Subject Matter Jurisdiction, giving content to FRCP 12(b)(1) motions. Prep both Overview of Federal Jurisdiction and Diversity Jurisdiction.

   • What is subject matter jurisdiction?
   • At what point do all the parties and the judge have to consider forum-selection issues?
   • What is the connection between Article III and the various jurisdictional statutes? Why are the statutes necessary? Why might a court not have jurisdiction in a given case?
   • Review all the assigned rules, as well as the jurisdictional statements in our sample pleadings.
   • Be ready to discuss the following distinctions: Exclusive v. Concurrent Jurisdiction; Original v. Appellate Jurisdiction; Specific v. General Jurisdiction
   • What is the purpose of diversity jurisdiction?
   • What is the difference between complete and minimal diversity? Which does § 1332 require? Which does Art. III require? What is the significance of the different sources using different standards? How does the complete diversity requirement connect with the underlying purpose of diversity?
   • How is citizenship defined? How is it determined? What facts and evidence go into determining domicile.

For Wednesday-Section A

Monday audio.

We will begin Subject Matter Jurisdiction, giving content to FRCP 12(b)(1) motions. Read both Overview of Federal Jurisdiction and Diversity Jurisdiction.

   • What is subject matter jurisdiction?
   • At what point do all the parties and the judge have to consider forum-selection issues?
   • What is the connection between Article III and the various jurisdictional statutes? Why are the statutes necessary? Why might a court not have jurisdiction in a given case?
   • Review all the assigned rules, as well as the jurisdictional statements in our sample pleadings.
   • Be ready to discuss the following distinctions: Exclusive v. Concurrent Jurisdiction; Original v. Appellate Jurisdiction; Specific v. General Jurisdiction
   • What is the purpose of diversity jurisdiction?
   • What is the difference between complete and minimal diversity? Which does § 1332 require? Which does Art. III require? What is the significance of the different sources using different standards? How does the complete diversity requirement connect with the underlying purpose of diversity?

Final words on summary judgment and going forward (both Sections)

A few final words on Summary Judgment.

First, it was asked what happens if a non-movant needs more time or more discovery to be able to oppose the motion for summary judgment. See FRCP 56(d) (formerly FRCP 56(f) when discussed in Celotex). The nonmovant can show by affidavit that it cannot present facts to justify its opposition, and the court can deny or defer resolving the motion or allow more time for discovery. Note, however, that the nonmovant must offer reasons for needing more discovery and must show what he is looking for and where he thinks he can find it.

Second, just so you know that it is not always hopeless for the plaintiff, see Tolan v. Cotton from SCOTUS last term, reversing the grant of summary judgment in favor of the defendant. Note Part II.B. and how the Court parses the record for competing evidence that can create disputes that lead to a dispute of material fact. Note that this may be the first time in a long time that SCOTUS has made a summary judgment ruling in favor of a civil rights plaintiff in awhile--perhaps going all the way back to Adickes.

Third, to situate us going forward. If summary judgment is granted in full, the case is over; we have a final and appealable judgment on the merits. But under FRCP 56(g), parties can move and the court can grant summary judgment on less than the entire case--as to some claims or defenses; as to some parties and not others; as to particular facts that are undisputed, while disputes remain as to other facts that may require trial; as to liability, while leaving disputes as to damages. The denial of summary judgment or the partial grant of summary judgment is not a final and appealable judgment. The action continues--perhaps to trial, perhaps to settlement, perhaps to more discovery, perhaps to additional summary judgment motions.

So we now have covered the entire "pre-trial process" from commencement of the action through summary judgment and settlement. The next step, if summary judgment is not granted and it does not settle, is trial. We will cover the trial process in Evidence.

Instead, our focus now shifts to providing content to the forum-selection motions (FRCP 12(b)(1)-(3)) that we previously discussed. We will examine the actual legal rules governing forum-selection and the doctrine that is applied when the court decides one of these motions.

Friday, March 20, 2015

When dissent rhetoric comes true

In reading the dissent in Sitzes and the "parade of horribles" hypos, consider the following video. This occurred in North Dakota--coincidentally, located in the Eighth Circuit.


For Monday-Section A

Friday audio. Again, great job; your potential/hopefully future colleagues were impressed.

Let me try one more way of explaining the idea of genuine dispute. Recall that in asking whether there is a dispute of fact, we must consider not only direct evidence of the material fact but also circumstantial evidence--that is, evidence of a basic fact that allows an inference to the material fact. So the "dispute" may be over that basic fact. Or it could be a dispute between uncontested evidence of the basic fact offered by one party and uncontested evidence of the presumed fact offered by the other. Go back to Adickes, in which the plaintiff offers uncontested evidence the officers were in the store and the defendant offers uncontested evidence they did not communicate or agree. This is a dispute over conspiracy--the defendant's evidence negating conspiracy against the plaintiff's evidence of presence. Whether this is a genuine dispute depends on whether presence alone is sufficient for a reasonable jury to find conspiracy.

On Monday, we will continue with Summary Judgment and the effect of substantive law.
  • What was the substantive Fourteenth Amendment standard adopted in Sitzes and how did that affect the summary judgment analysis, according to the majority and dissent?
   • Be ready to discuss the evidence and the possible inferences from the evidence in Sitzes.
   • Be ready to discuss the evidence and inferences in Schoenfeld. Note how the burden-shifting framework operates and how it affects what each party submits on summary judgment.
   • How does FRCP 56(d) (formerly 56(f)) work and why? What are the limitations on its usefulness in responding to a motion for summary judgment.
   • Is summary judgment consistent with the Seventh Amendment?

I do not believe we will get to Subject Matter Jurisdiction Monday, so no new reading. On Wednesday (if you want to read ahead) we will cover Overview and Diversity.

Thursday, March 19, 2015

Sample Answer for Essay # 3

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The sample essay # 3 is after the jump. Again, please come see me if you want to review your essays or if you want to talk generally about how to approach the issues in this problem.

Wednesday, March 18, 2015

For Monday-Section C

Wednesday audio--Part I, Part II.

We will continue (and hopefully finish) Summary Judgment; please review everything you've read so far.
   • How much of a showing must the non-moving party make to show a genuine dispute? When is a fact in dispute?
   • How do we determine what facts are material? What dictates when a party is entitled to judgment "as a matter of law"?
   • Note Justice Ginsburg's concurring opinion in Scott. How does the precise legal standard for excessive force affect the summary judgment analysis?
   • Be ready to discuss the evidentiary analysis in Schoenfeld (which demonstrates burden-shifting) and Sitzes, which also shows the affect of substantive law on the analysis.
   • What Seventh Amendment problems does summary judgment create?

I hope to have enough time on Monday to begin our discussion of Subject Matter Jurisdiction. So please go ahead and read Overview of Federal Jurisdiction.
   • What is subject matter jurisdiction?
   • At what point do all the parties and the judge have to consider forum-selection issues?
   • What is the connection between Article III and the various jurisdictional statutes? Why are the statutes necessary?
   • Review the assigned rules, as well as the jurisdictional statements in our sample pleadings.

Twiqbal v. Conley

This post is from a Civ Pro professor at another school. It discusses a recent pleading decision from the Fourth Circuit, as well as wrestling with exactly how much Twiqbal changed things from Conley and whether it truly created a new standard or simply offered new language to describe the same notice pleading regime. Worth a look.

For Friday-Section A

Wednesday audio.

We will continue with Summary Judgment.
   • How might the defendants in Adickes approach summary judgment under the Celotex approach (especially following the White concurrence). How could they use discovery to set up their motion?
   • What will the evidence on summary judgment look like? What form must it take?
   • What evidence did the plaintiffs in Adickes and Celotex offer? Was it sufficient to carry the burden of production?
   • How much of a dispute of fact must there be for it to be "genuine"?
   • How does applicable substantive law (including the standard of persuasion) affect whether a reasonable jury could find for the non-movant?
   • How does FRCP 26(a)(1) disclosure potentially change a party's (especially defendant's) strategy in moving for summary judgment?