Friday, February 5, 2016

For Monday/Tuesday (Both Sections)

Friday audio--Section B, Section A.

For those of you thinking (and even saying) that Twiqbal seems awfully amorphous, you're right about its application. We know what the cases say is required; how that applies to any one case and any one pleading is where the action is and where you earn your money in making and framing arguments.

We will do some clean-up on Twiqbal. Does the Godin complaint state plausible claims against the government for Due Process and breach of contract? What about for dafamation against the individual defendants? Why do our plaintiffs have a relatively easy time in pleading? How might/should the policy concerns that drove the specific decisions in Twombly and Iqbal affect their application to other cases, given the Court's insistence that it is a "context-specific" task? What was it about these two cases that might have been different?  What does Johnson (a summary reversal) tell us about what plaintiffs must do?

We then turn to Responding to a Pleading: Answers, Defenses, and Additional Claims; this covers the defendant's second responsive option. For Monday, prepare Zielinski and King Vision, as well as FRCP 8(b)-(c), and 12(a)-(c). In addition, we will skip the Spooner Complaint and Answer; instead review and prepare the Answer in Kinsman v. Winston, which makes the unusual move of reproducing the allegation from the Complaint to which it is responding (this will serve as out sample answer). For Monday, pay close attention to the responses to the allegations in the Complaint, as well as the "Preliminary Statement;" think about the underlying strategy involved.

Thursday, February 4, 2016

Disappearing Civil Trials

This short essay is written by D. Brock Hornby of the District of Maine. It discusses the decline in civil trials, especially jury trials (remember, only about 2 % of federal cases go to trial), through an imagined conversation among the various players in federal litigation. It touches on many of the issues we already have discussed or will discuss over the course of the semester. Have a look; it's a good and quick read.

By the way, magistrates are "adjunct" judges working within each federal district. They are hired for a term of years, rather than enjoying the life-tenure protections of Article III judges. And they perform a wide variety of tasks (particularly in pre-trial motions and discovery) to take the workload off the Article III judge assigned to the case.

For Friday (Section B)

Thursday audio.

Just to clarify. The possible/plausible/probable line ends up being more rhetorical than anything. Yes, the court is going to decide this (of course). But counsel for both sides are going to be able to make arguments, which will rely on the distinctions. The point is that as plaintiff, your argument is "we have enough in this complaint, because it does not have to probable--the judge doesn't have to believe the defendant is, in fact liable." As defendant, your argument is "they may have enough that liability is possible, but they need more, to cross over the plausible."

We continue with Twiqbal. What does Iqbal say the court should consider in determining whether the allegations are plausible? How does that line up with the PSLRA and Tellabs? What does "conclusory" mean and how do you tell a conclusory allegation from a well-pleaded fact?

Be ready to analyze the following under the Iqbal two-step:
   • Twombly
   • Iqbal
   • Godin
   • VOA
   • Morgan
   • Form 11

Why do the plaintiffs in our cases have it relatively easy? How does the new pleading standard affect litigation strategy, by both plaintiffs and defendants? What unique features are there in Twombly and Iqbal that might limit there scope, compared with other cases?

Wednesday, February 3, 2016

For Friday (Section A)

Wednesday audio. Also, two administrative points: 1) Please do not leave the room once class has begun. 2) Reiterating what I said at the end of class: Take some time before Friday's class to review today's notes and to review the reading/preparation that you did for today that carries over to the next class.

We continue with Twiqbal. How does the "obvious alternative explanation" piece line up with the PSLRA and Tellabs? What does "conclusory" mean and how do you tell a conclusory allegation from a well-pleaded fact? Be ready to analyze the following under the Iqbal two-step:
   • Twombly
   • Iqbal
   • Godin
   • VOA
   • Form 11

Why do the plaintiffs in our cases have it relatively easy? How does the new pleading standard affect litigation strategy, by both plaintiffs and defendants? What unique features are there in Twombly and Iqbal that might limit there scope, compared with other cases?

Tuesday, February 2, 2016

For Thursday (Section B)

Tuesday audio.

We will continue with Fact/Heightened Pleading. What doesn't the "protect businesses" rationale explain the special treatment of fraud and mistake? What are other possible reasons for treating fraud, mistake, and securities fraud differently than other claims? Do those reasons hold up--are these claims so different as to warrant a different pleading standard? Why did the Court rejected heightened pleading for civil rights and discrimination cases?

We then turn to The Future of Notice Pleading, focusing on Twombly and Iqbal (collectively, Twiqbal), which fundamentally and unexpectedly changed everything about federal pleading. What is the two-step approach to 12(b)(6) motions after Twiqbal? What does "conclusory" mean? What does "plausible" mean (and what does it not mean)? Be ready to discuss why complaints do or do not meet the standard in Twombly, Iqbal, Godin, and our sample cases.

Also, please note a slight change to the facts presented in Essay II. It does not change anything about your analysis, but it may clarify something.

Monday, February 1, 2016

Law Review article relating to 9(b) pleading standard

I found a law review article that discusses the implications of the Tellabs case and discusses reasons behind the pleading standard. Most of the relevant stuff is in the intro and earlier sections. The later portion discusses whether class-action plaintiff's lawyers shop around for District courts that have a more relaxed interpretation of 9(b). Apparently most class-action securities fraud cases that survive a 12(b) motion to dismiss get settled.

Here is the link:
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2708&context=faculty_scholarship

For Wednesday-Section A

Monday audio.

We will continue with Fact/Heightened Pleading. What are the possible reasons for treating fraud, mistake, and securities fraud differently than other claims? Do those reasons hold up--are these claims so different as to warrant a different pleading standard? Why did the Court rejected heightened pleading for civil rights and discrimination cases?

We then turn to The Future of Notice Pleading, focusing on Twombly and Iqbal (collectively, Twiqbal), which fundamentally and unexpectedly changed everything about federal pleading. What is the two-step approach to 12(b)(6) motions after Twiqbal? What does "conclusory" mean? What does "plausible" mean (and what does it not mean)? Be ready to discuss why complaints do or do not meet the standard in Twombly, Iqbal, Godin, and our sample cases.

Also, please note a slight change to the facts presented in Essay II. It does not change anything about your analysis, but it may clarify something.

Friday, January 29, 2016

Essay II

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You are counsel for the plaintiff in Naruto v. Slater. The defendants file (and, on the same day, serve) a motion to dismiss the complaint. As part of that motion, they request sanctions under FRCP 11; the motion states that the complaint violates FRCP 11(b)(1) and (b)(2) and requests sanctions both from PETA, as plaintiff, and from you, as counsel.

Explain why Rule 11 sanctions should not be imposed on you or on your client.

Essay I

Two civil actions have been filed in the United States District Court for the District of the District of Columbia--Ryan Zimmerman v. Al Jazeera America et al. and Ryan Howard v. Al Jazeera America et al.  

You are counsel for Al Jazeera. Could these have been filed in one action? Since they have been filed separately, what can you do to make this litigation more streamlined and efficient?

For Monday/Tuesday (Both Sections)

Friday audio.

By the way, I forgot to mention in class: The judge granted the motion to dismiss in Naruto, in an oral order from the bench, agreeing that the Copyright Act does not protect non-humans. He has indicated he will issue a written order, including an opinion, shortly.

We continue with The Idea of Notice Pleading.

   • What are the benefits to Conley's "notice pleading"?
   • What is the argument for requiring less factual detail in the Complaint?
   • As the plaintiff, what are the drawbacks to pleading too much detail?
   • What rules are in place to limit the plaintiff from being too "noticey" in the complaint?
   • What was going on in Conley? What was the real arguable problem with that Complaint?
   • Review FRCP 84 and Form 11. How does that satisfy Conley's"fair notice" requirement?

We then turn to An Alternative: Fact or Heightened Pleading. In addition to the provisions on the Syllabus, please print out § 78u-4(b), which is the pleading provision at issue in Tellabs. Think about:
    • Why require heightened pleading for fraud and securities fraud? What are the rationales and do they hold up?
    • What were the arguments for extending FRCP 9(b) to civil rights and discrimination claims?
    • How does 9(b) interact with 12(b)(6)? Will dismissals be with or without prejudice?

Thursday, January 28, 2016

For Friday (Section B)

Thursday audio. Remember, we will begin at 9:15 tomorrow.

We continue with Motions. We left on the question of whether a dismissal for factual insufficiency should be with or without prejudice and why. We then turn to the consolidation and waiver provisions in FRCP 12(g) and (h); look at the breakdown in (h) and consider when which motions can be brought up again and how. Why are the different 12(b) motions treated differently? What is the rationale for how each class is treated?

Read FRCP 15(a) very carefully. What language should you read into 15(a)(1)(A)? Since the pleadings we are discussing right now are responsive pleadings, which provision is in play?

Work through the following hypos; consider whether the defenses can be raised and whether they can be raised through the mechanism used.
1) A v. X. X's motion to dismiss for insufficient service is denied. X answers, asserting defenses of improper venue and failure to state a claim.

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

3) A v. X. X files an Answer containing no 12(b) defenses. 4 weeks pass. X then files an Amended Answer, containing defenses of failure to state a claim and lack of personal jurisdiction.

4) A v. X. X's motion to dismiss for lack of subject matter jurisdiction is denied. X then moves to dismiss for failure to state a claim.

We then turn to How Much Detail? The Idea of Notice Pleading. This (and the next two sub-sections) explore what FRCP 8(a)(2) means by "short and plain statement of the claim showing the pleader is entitled to relief."
   • How is our understanding of that rule influenced by the "liberal ethos"?
   • What are the benefits to Conley's "notice pleading"?
   • What is the argument for requiring less factual detail in the Complaint?
   • As the plaintiff, what are the drawbacks to pleading too much detail?
   • What rules are in place to limit the plaintiff from being too "noticey" in the complaint?
   • What was going on in Conley? What was the real arguable problem with that Complaint?