Wednesday, January 16, 2019

For Tuesday-Section C

Wednesday audio-Hour I, Hour II.

We move to Rule 11 and Consistency and Honesty in Pleading; note the assigned reading of the 1983 and 1993 advisory committee notes. And note the assignment of our first case, Roth. What motions were filed in Roth? How did the court apply the various pieces of FRCP 11? What is the difference between a "frivolous" claim and a "non-meritorious" claim? What are the purposes of sanctions and how does that affect the sanction that a court imposes? What is the process for seeking sanctions? Did the defendant in Roth follow that process? Were sanctions imposed anyway?

Pleading as press release

A good example comes from this complaint, filed yesterday by a brewing company claiming that its product will go bad if its bottle labels are not approved, which they will not be because the agency that approves alcohol labels is shut down. The brewer claims the inability to create their labels violates the First Amendmen

Note the "Introduction," six non-numbered paragraphs containing phrases such as "Americans' fundamental right to free speech requires no congressional authorization" and it "cannot be denied the right to speak for lack of meeting an impossible condition." These, and similar cable-news fodder, are designed to capture the attention of the news media and people on Twitter and draw attention to the lawsuit. They likely have no effect on the judge.

For Friday-Section B

Wednesday audio.

We finish with Joinder. What is the connection between consolidation and joinder? If Jones was filed in the District of New Jersey, could it be consolidated with Morgan?

Move on to the reading in Glannon: pp. 479-98 on claim preclusion/res judicata and pp. 499-520 on issue preclusion/collateral estoppel; focus on the introductory material in both chapters, worry less about the M/C problems. I want you to read it to get the basic ideas of preclusion. Consider how preclusion would apply in the following:
   • Naruto sues Slater for copyright infringement and the Court says non-human animals are not protected by copyright. Naruto now wants to sue Blurb for copyright infringement.
   • Godin sues Metta and the court finds that the statements that Godin abused the children were true. Godin now sues the Bord for breach of contract.
   • VOA sues BSO for Breach in one suit and for Copyright in a separate suit. Think about how claim preclusion/res judicata interacts with FRCP 18(a) in this situation.
   • Godin sues the Board and the Union in one suit and the individuals in a separate suit.

We then move to Rule 11 and Consistency and Honesty in Pleading; note the assigned reading of the 1983 and 1993 advisory committee notes. And note the assignment of our first case, Roth. What motions were filed in Roth? How did the court apply the various pieces of FRCP 11? What is the difference between a "frivolous" claim and a "non-meritorious" claim?

Tuesday, January 15, 2019

For Wednesday--Section C

Monday audio--Hour I, Hour II.

 We continue with Joinder. Do the Rule 20 analysis for the defendants in Godin and for Krista's products claim in Morgan. With respect to Krista's products claim, does it matter whether she also has the loss of consoritum claim?

Then consider our hypothetical case of Bob Jones (apologies for referring to it in class as Smith) and whether that claim could be included with Morgan:
   • One month after the Morgan accident, Bob Jones is in an accident on a different stretch of the NJ Turnpike, when he is struck by a truck driven by a different Walmart driver, who also had been driving a long way for more than 24 hours. Jones wants to sue Walmart and Walmart Transport for negligence.

What is the problem with VOA bringing claims of copyright and breach of contract? How do the rules address this?

Review the remaining assigned rules and consider how they limit the permissive nature of FRCP 20.

Finally, some additional reading to skim in Glannon: pp. 479-98 on claim preclusion/res judicata and pp. 499-520 on issue preclusion/collateral estoppel; focus on the introductory material in both chapters, worry less about the M/C problems. I want you to read it to get the basic ideas of preclusion. Consider how preclusion would apply in the following:
   • Naruto sues Slater for copyright infringement and the Court says non-human animals are not protected by copyright. Naruto now wants to sue Blurb for copyright infringement.
   • Godin sues Metta and the court finds that the statements that Godin abused the children were true. Godin now sues the Bord for breach of contract.
   • VOA sues BSO for Breach in one suit and for Copyright in a separate suit. Think about how claim preclusion/res judicata interacts with FRCP 18(a) in this situation.
   • Godin sues the Board and the Union in one suit and the individuals in a separate suit.

Monday, January 14, 2019

For Wednesday--Section B

Monday audio.

We continue with Joinder. Do the Rule 20 analysis for joining both sets of defendants in Godin. Do the Rule 20 analysis for plaintiffs in Morgan, as well as for Krista's products claim. With respect to Krista's products claim, does it matter whether she also has the loss of consoritum

Then consider our hypothetical case of Bob Jones (apologies for referring to it in class as Smith) and whether that claim could be included with Morgan:
   • One month after the Morgan accident, Bob Jones is in an accident on a different stretch of the NJ Turnpike, when he is struck by a truck driven by a different Walmart driver, who also had been driving a long way for more than 24 hours. Jones wants to sue Walmart and Walmart Transport for negligence.

What is the problem with VOA bringing claims of copyright, trademark, and breach of contract? How do the rules address this?

Review the remaining assigned rules and consider how they limit the permissive nature of FRCP 20.

Finally, some additional reading in Glannon (we likely will get to this on Friday, although maybe at the end of class Wednesday): pp. 479-98 on claim preclusion/res judicata and pp. 499-520 on issue preclusion/collateral estoppel. I want you to read it to get the basic ideas of preclusion. Consider how preclusion would apply in the following:
   • Naruto sues Slater for copyright infringement and the Court says non-human animals are not protected by copyright. Naruto now wants to sue Blurb for copyright infringement.
   • Godin sues Metta and the court finds that the statements that Godin abused the children were true. Godin now sues the Bord for breach of contract.
   • VOA sues BSO for Breach in one suit and for Copyright in a separate suit. Think about how claim preclusion/res judicata interacts with FRCP 18(a) in this situation.
   • Godin sues the Board and the Union in one suit and the individuals in a separate suit.

Friday, January 11, 2019

For Monday-Section B

Friday audio.

We start on Joinder, focusing on FRCP 18, 20, and 21. What is the scope of joinder of claims (one party against one opposing party) under FRCP 18 compared with joinder of parties under FRCP 20? What makes someone an "opposing party"? What allow open joinder of claims?  Why allow less open (but still broad) joinder of parties? What happens if a party is improperly joined?

Review our four complaints. Are the claims and parties properly joined? Consider the following additional claims and whether they could be included in the current action:
   • In 2014,VOA provided different material for BSO to use in its performances pursuant to a different contract. BSO didn't pay on that contract. VOA wants to sue for breach of contract.
   • Six months after the car accident, Krista Millea buys a toaster from Walmart that explodes and injures her. She wants to sue Walmart for products liability.
   • One month after the Morgan accident, Bob Jones is in an accident on a different stretch of the NJ Turnpike, when he is struck by a truck driven by a different Walmart driver, who also had been driving a long way for more than 24 hours. Jones wants to sue Walmart and Walmart Transport for negligence.

Wednesday, January 9, 2019

For Monday-Section C

Wednesday audio--Hour I, Hour II.

Continue reviewing our Complaints, noting the structure in light of FRCP 8 and 10. What are the "themes" the plaintiffs try to use in telling their stories?

Then move to Joinder of Parties and Claims. What is the difference between FRCP 18 and 20? What are the benefits and drawbacks to broad joinder of claims and parties? How does FRCP 20 strike the balance between those benefits and drawbacks? What happens if some parties are improperly joined

Review our four complaints. Are the claims and parties properly joined? Consider the following additional claims and whether they could be included in the current action:
   • In 2014,VOA provided different material for BSO to use in its performances pursuant to a different contract. BSO didn't pay on that contract. VOA wants to sue for breach of contract.
   • Six months after the car accident, Krista Millea buys a toaster from Walmart that explodes and injures her. She wants to sue Walmart for products liability.
   • One month after the Morgan accident, Bob Jones is in an accident on a different stretch of the NJ Turnpike, when he is struck by a truck driven by a different Walmart driver, who also had been driving a long way for more than 24 hours. Jones wants to sue Walmart and Walmart Transport for negligence.

I believe we will spend both days next week on Joinder. If you prep the next section on FRCP 11, that will put you ahead of the game.

For Friday-Section B

Wednesday audio. It is essential that you spend more time looking at and thinking about the statutes, what they say, and how they fit together.

We continue with Introduction to Pleading. How many claims are in each of the four cases and what are they? Compare the structure and content of the four complaints in light of the requirements of FRCP 10 and FRCP 8(a), (d), and (e)? Given that each claim is independent, how does the success or failure of one claim affect another? What is the purpose of the complaint? How does the fact that we are an adversary system affect how a plaintiff drafts a complaint? How those purposes affect how you draft the complaint, how you frame it, and the language you use?

Jump to the very beginning of Joinder, looking only at FRCP 18(a) and pp. 241-43 in Glannon's. We will dive into Joinder more next week.

Monday, January 7, 2019

For Wednesday-Section C

Monday audio--Hour I, Hour II. Review the Syllabus and grading information; we will take a few minutes on Wednesday for any questions. Seating chart on Wednesday.

We continue with our Introduction to Civ Pro. We left off on the Rules Enabling Act process. What happens under § 2074(a) if Congress does nothing? Look at FRCP 83--what other sources of rules are there?

Then prepare Introduction to Pleading, including all the rules assigned. Review the four assigned Complaints and note how they are structured in light of the rules governing the basic structure of pleadings. What is a "claim" and how many claims are contained in each of our cases?

For Wednesday-Section B

Monday audio. Seating chart on Wednesday. Review the Syllabus and Grading info--we will answer questions in the first couple of minutes on Wednesday.

We continue with our Introduction to Civ Pro. We left off on original jurisdiction and who exercises it; what is appellate jurisdiction, what court exercises it, and when? Consider a different pair of jurisdictions--concurrent v. original (compare § 1332 with § 1338).

Where do procedural rules come from? Review §§ 2072-2074 and the 2015 Chief Justice Report and be ready to discuss the process for making the Federal Rules.

Then prepare Introduction to Pleading, including all the rules assigned. Review the four assigned Complaints and note how they are structured in light of the rules governing the basic structure of pleadings. What is a "claim" and how many claims are contained in each of our cases?

Friday, December 22, 2017

Civil Procedure Overview

Welcome to Civil Procedure.

This short video was done by a graduate of Indiana-Indianapolis and is posted here with his permission. This provides a succinct overview of everything you are going to learn over the next 14 weeks. You may not understand any of this now. But I promise that when you rewatch it at the end of the semester, you will know and understand everything in it.

Also, you should begin to get a general sense of the structure of the two judicial systems with which we will deal this semester: the United States and Florida as an example of a state court. This map shows the basic set-up of the federal judiciary: one Supreme Court of the United States, 12 regional Courts of Appeals ("Circuits"), each consisting of multiple districts within states (plus the Federal Circuit, which hears appeals in patent matters and claims against the federal government); 94 trial courts ("Districts"), each state having at least one district, many states with multiple districts, and no district crossing state lines. This site provides an overview of the Florida judicial system of one Supreme Court of Florida, 5 District Courts of Appeal, 20 Circuit Courts (for larger trial matters), and 67 County (Courts (one for each county, for smaller trial matters). Please learn to call courts by their proper names. The appellate courts in the federal system are Courts of Appeals for the ____ Circuit, while in Florida they are the ___ District Court of Appeal. As you can see from the sample pleadings, federal trial courts are the United States District for the ___ District (e.g., Southern District of Florida). In what federal circuit and district is Miami?

Finally, I have assigned two recent Year-End Reports of the Federal Judiciary, written by Chief Justice Roberts, which offer a nice overview to what we will be dealing with. For the 2015 Year-End Report, focus on pp. 1-6 and 10-12; this introduces the federal judicial system and an explanation for the statutes and rules we'll be looking at. It describes the process for creating the Federal Rules of Civil Procedure, so read this in conjunction with §§ 2072, 2073, and 2074. For the 2016 Year-End Report, read the whole thing; it offers a good overview on the work of federal district (trial-court) judges, which is where we will focus. Finally, look at pp. 12-15 of the 2018 Year-End Report, which provides workload statistics for the federal courts, paying close attention to case filings in the district courts, which will be our focus.

Enjoy. See you on January 7.

Civil Procedure Blog

Welcome to Civil Procedure and the Civil Procedure Blog. This will be the primary means of communicating assignments, questions, comments, stories, and other information between class meetings.It also is a forum for you all to bring forward questions, comments, and other Civ-Pro-related stuff. The purposes and uses of the blog are discussed in the Syllabus.

To read the blog, go to http://fiucivpro.blogspot.com; posts can be read from most to least recent. To post to the blog, go to http://www.blogger.com; log-in with username and password.

Everyone must register as an author. To register, please send an email to me (howard.wasserman@fiu.edu). In the subject line, type "Civ Pro Registration;" in the body, be sure to include your name and your email address. You will receive an "Invitation" email, inviting you to register. Follow the steps listed. Please register under your full name (first and last); no handles or user names. When you register, you also will learn how to draft posts, provide links to sites, post files, etc.

Course Materials and First-Week Assignments

Welcome to Spring Semester and Civil Procedure.

The first meeting of Section A is 10:30 a.m., Monday, January 8. The first meeting of Section B is 2 p.m., Monday, January 8.

Prior to the first class, please download and review the Syllabus, Essay Information, and Optional Creative Project (also available from the right side of the blog (under Course Materials)). This provides important information about class structure, reading assignments, preparing for class, and assessment, as well as your main in-semester writing assignments. You should bring the Syllabus (particularly the list of assignments) with you to every class.

Changes to Class Schedule: Please note the following:

• No class on Monday, January 21 (MLK Day)
Section C: We will meet on Tuesday, January 22; you will have Contracts on Wednesday, January 23

Name Cards:

At our first class meeting, there will be a stack of name cards on the table in the front of the classroom. Please find the card with your name on it and place it in front of you at your seat. You must keep that card and have it with you for every class. 

Technology and Class Conduct: 
 
Use of laptops, tablets, book readers, smart phones, and similar devices during class is prohibited, unless you have a formal accommodation.

You must be in class on time, unless I have previously given you permission to come late. You may not enter the room once class has begun, unless I have given you permission to come late. Once class has begun, you must remain in your seat, unless I have given you permission to leave during class (or you have a formal accommodation). In all cases, permission will be freely given when reasonable.
 

Required Course Materials:

1) Linda S. Mullenix, Leading Cases In Civil Procedure (West 3d ed. 2016)
2) Joseph Glannon, The Glannon Guide to Civil Procedure (Wolters-Kluwer 4th ed. 2019)
3) Federal Rules Of Civil Procedure (2018 ed.) (Compiled By Kevin M. Clermont)
   Note: Yes, you must purchase and use the most recent version of the rules
4) Civil Procedure Blog: http://fiucivpro.blogspot.com (indicated in syllabus)

First Class Assignments: For the first class (from the Syllabus)

Section B:

Introduction to Civil Procedure:                                                                       
   Provisions:
   U.S. Const. art. III
   U.S. Const. amend. V, VII, XIV
   Fed. R. Civ. P. 1, 58, 60, 83
   28 U.S.C. §§ 1331-1332
   28 U.S.C. §§ 1291, 1254
   28 U.S.C. §§ 2071-2074

   Sample Pleadings:
   Naruto v. Slater (Complaint) (Blog)
   Godin v. School Union # 134 (Blog)
   Morgan v. Wal-Mart (Blog)
   Visions of America v. Boston Symphony Orchestra (Blog)

   Other Reading First Class: See other Blog posts.

Section C:

Introduction to Civil Procedure:                                                                       
   Provisions:
   U.S. Const. art. III
   U.S. Const. amend. V, VII, XIV
   Fed. R. Civ. P. 1, 58, 60, 83
   28 U.S.C. §§ 1331-1332
   28 U.S.C. §§ 1291, 1254
   28 U.S.C. §§ 2071-2074

   Sample Pleadings:
   Naruto v. Slater (Complaint) (Blog)
   Godin v. School Union # 134 (Blog)
   Morgan v. Wal-Mart (Blog)
   Visions of America v. Boston Symphony Orchestra (Blog)

   Other Reading First Class: See other Blog posts.

 Introduction to Pleading:

   Provisions:
   Fed. R. Civ. P. 2, 8(a), 8(e), 10, 41(a) 

   Sample Pleadings:
   Naruto v. Slater (Complaint) (Blog)
   Godin v. School Union # 134 (Blog)
   Morgan v. Wal-Mart (Blog)
   Visions of America v. Boston Symphony Orchestra (Blog)
 

Questions to Consider:
   • What is "procedure" or "procedural law"? What is the complementary or opposing concept to procedure?
   • What is the "law" at issue in the four Complaints?
   • What values or goals should a system of procedure achieve? What do we want from a set of procedural rules? 
   • What does the concept of "jurisdiction" mean? Consider the meanings and differences in the following pairs: Original v. Appellate Jurisdiction; Exclusive v. Concurrent Jurisdiction; General v. Limited Jurisdiction