Thursday, July 13, 2017

Saturday, April 29, 2017

Joinder Question and Answer

A sues B, in a valid diversity action in federal court(+75k and complete diversity). B then has a third party claims against C , for contribution. Under joinder 18(a), B wants to add another claim against C, for damages in an unrelated claim. 1367(a) dictates that a "same case and controversy " standard controls supplemental juris.

Does 1367(a) bar that "18(a)" claim between B and C because of the" same case and controversy" standard?

I think it does. What bothers me about this question is that it is properly joined , but no SMJ/ SUPP J over that claim. (yes this is simliar to Krista Millea case )


You don't say this, but I am assuming B and C are not diverse. If they are diverse, you don't need to look at § 1367.

If they are not diverse, then you are correct--FRCP 18(a) would be satisfied, but the court lacks jurisdiction over the claim, so the claim cannot be brought. We discussed this in class--about how the requirements of jurisdiction limit what a party can bring under FRCP 18(a), just as they might limit whether a defendant can bring a permissive counterclaim (especially in those courts that do not treat "same case or controversy" as different than "same transaction or occurrence").


Why should this bother you? The Federal Rules can't expand jurisdiction.


Note that this is not like the hypothetical claim by Krista Millea. Because she is diverse from Wal-Mart, should could add her products claim under 18(a) and there would be diversity jurisdiction. The better example we used was Godin suing the Board for money owed on her contract for her first year teaching, which is unrelated to her due process claims, and where there is no diversity.

Many, many questions and answers

Questions in bold; answers in plain text.

As for sanctions, is there a max to the amount of sanctions that a court may impose? In other words, if both apply, can a party be sanctioned under rule 11 and 1927?

Yes, because they impose different sanctions for different misconduct. The Supreme Court two weeks ago reaffirmed that a court must establish a but-for causal connection between the misconduct and whatever sanction it imposes.

Under 12(b)(7), the small paragraph says "a motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed," but can a party raise lack of subject matter jurisdiction at any time by a motion and for instance 12(b)(6) can be raised by a motion under 12(c) - both circumstances AFTER a responsive pleading?

Yes--See FRCP 12(h).

Can a third party defendant, respond with a pre-answer motion?

 See FRCP 14(a)(2)(A)

Under 15(c), we discussed how notice can be given formally by serving the amended complaint. So just to make sure I understand how this plays out, as the P, I would file my amended pleading with the court, serve it on the defendant pursuant to rule 5 and then I would argue under 15(c) that my claim in the amended pleading should not be barred as it relates back because, among the other factors, the Defendant had notice?

If it happens within the 90 days, yes.

Under rule 30(a)(2)(A)(i), are we concerned about the eleventh deposition by any one party or the eleventh deposition by "all the plaintiff" or "all the defendant" collectively?

Each party. Note the language in FRCP 30(a)(2)(A)(i)--more than ten "by the plaintiffs, or by the defendants, or by the third-party defendants."

Since we mentioned that we should point to all grounds for jurisdiction, should we include 1367 (when applicable) as back up or is that not necessary when we have original jurisdiction? I know that original jurisdiction is what we should look for first, but I am not sure if we should include 1367 as a back up because I noticed that our sample complaints sometimes do that.

Of course, if you have a claim (e.g., the defamation claims in Godin) where § 1367 may be (or turn out to be) the only way to get jurisdiction. In a Complaint, you always identify every possible basis for jurisdiction, even if they are redundant (e.g., citing both § 1331 and § 1338 for jurisdiction over the trademark claim or citing both § 1331 and the Title VII grant in a Title VII claim).

For in rem II, if I am seeking to enforce a judgment, is there any limit to what property I can attach? 

None that matters for jurisdictional purposes (it might matter for substantive purposes)

In one of my hypos from class, I wrote that the Plaintiff removed, can a plaintiff remove? I think only a defendant can based on the rule, but I just want to make sure this was not an exception of some sort.

You wrote it wrong in your notes. Only a defendant removes. If a plaintiff wants to be in federal court, she will file there in the first place.

Again, as I have been saying over and over, don't look at or rely on your notes, at least not exclusively. Go to the actual source of law and look at the text and base your notes on that--§ 1441(a) says removed "by the defendant or the defendants." So that should answer it.

When you remove to federal court, does the plaintiff have to be served pursuant to rule 4 since this is the start of litigation in federal court?

No, because it is the same litigation, just in a new court. And, again, if that was required, the statute would say so. Besides, it would make no sense to serve a plaintiff with a summons and complaint. The point of service of process is to give formal notice to someone who is not a party to litigation. The plaintiff knows about the suit--she was the one who filed it in the first place. Serving the Notice of Removal gives her notice of the move to a new court. But she already knows there is litigation.

Don't overthink these things.

If you remove after you answered in state court, does that mean you have to file another answer now in federal court or does the litigation just continue where you left off?

It continues where you left off. But consider that, since you only have 30 days to remove, it's unlikely that you will have answered in most cases. Or if you did answer, it likely is a case that became removable later. So now the question is what made it removable under § 1446(b)(3)? If, for example, it became removable because the plaintiff filed an amended complaint adding a federal claim, the defendant has 30 days to remove, so probably would not answer the amended complaint until after the case is removed.

Can a person intervene to become a Plaintiff or Defendant, or is it just an option to intervene as a Plaintiff (or vice versa)?

A party can intervene as either. 


Final Exam Information (so there are no surprises)


Format:
This is your in-class Final Examination. Because this exam is being administered to two different classes and because some students take exams at different dates or times, you must ensure that you do not discuss the exam with, or in the vicinity of, anyone who has not already taken it. If you take the exam at some later point, you must ensure that you do not discuss the exam with anyone until you take it.
The exam can be completed either on computer using ExamSoft or in blue books. If you write in blue books, please be legible; I cannot evaluate an answer that I cannot read or decipher.
The exam consists of 15 Short-Answer Questions, worth a maximum of four (4) points each.
Questions are in Bold. Facts and details about the hypothetical are in Plain Text.

Note on the Hypotheticals:
The basic factual scenarios all are taken from actual cases; most underlying real-world facts and procedural issues are real, with some slight elaborations or changes. One case scenario/fact pattern often covers multiple questions, as indicated. When this is so, the introductory paragraphs present the basic factual and procedural situation and apply to every question arising from that scenario. Additional facts may be added for subsequent questions; a question may take into account all facts already presented in the case. All facts necessary to resolve a question are presented before the question is asked; a question will not require any facts that have not already been presented. Later questions may rely on all previously introduced facts.
All cases are in the courts indicated in the facts. Cases in federal court are governed by the Federal Rules of Civil Procedure and applicable federal jurisdictional and procedural statutes and principles.
Read the facts carefully. While some are quite detailed, the questions and issues to be drawn out of each question are straightforward; don’t go looking for hidden balls. All necessary facts are provided; if some fact is not provided, that means it is not necessary to the analysis. You may draw appropriate conclusions from the absence of a fact and you may draw fair inferences from the facts you have. Do not assume any facts and do not fight or overcomplicate the facts you have. Some of the problems include details about the law at issue in the question.
Most questions ask you to take a position--court or counsel for one of the parties. Pay close attention to the precise question in framing your argument.
Names in the multiple-choice fact patterns correspond (in obvious ways) to the role someone plays in the factual scenario and in the case. Thus:
   Name begins with P: Plaintiff
   Name begins with D: Defending party
   Name begins with Th: Third-party defendant
   Name begins with N: Non-party character in the real-world drama (who is not party to the case)
   Name begins with A: Attorney
If the question provides a short version or abbreviation for some name, please use that short name or abbreviation in your answer.

Approaching Short-Answer Questions
You may write up to 150 words on each question. That is an intentionally wide figure (even wider than in your mid-term) to give you maximum room to write, although you will not write that much on most questions. Save your words and avoid throat clearing; jump right into your answer.

Answer each question in a separate paragraph, clearly identifying the question being answered at the start (preferably by writing the question number in bold above the paragraph--e.g. Question 1). In a parenthetical at the end of each answer, indicate the number of words in that answer. If you are using ExamSoft, you can do this by highlighting the paragraph and doing “word count” for just the highlighted portion. If you are handwriting in bluebooks, you must manually count.

Each answer should be concise, brief, and direct, but still thorough. A good answer will identify and briefly state the applicable rule (or relevant portion of the applicable rule) and apply it to the facts at hand to produce a conclusion with a short explanation. You need not write out the entire explanation of the rule (as you did with your Essays); focus on application of that rule to the facts. The questions lend themselves to short, quick answers, although you obviously must briefly present the applicable legal rule, apply it to the facts, and explain your conclusions. The word limit still leaves you a lot of room to write what you need to, including the precise words of the applicable rule or statute. Make sure any conclusion is supported by discussion of the facts at hand (e.g., don’t say “The parties are from different states”; say “The parties are from different states because the plaintiff is from California and the defendant is from Oregon.”). Keep yourself out of the argument; I know the role or position you are playing, so no need to repeat it. Get to your point.

Questions often require you to answer from a particular position--as counsel for plaintiff or defendant or as the court. Be sure to read the question carefully and answer the precise question asked. Answer only the question asked.

Materials:
You may bring to the exam and use any and all assigned materials from the class, including your casebook, rules pamphlet, and Glannon, as well as any and all other rules, statutes, cases, and documents, provided or assigned through the Blog. You may bring to the exam and use any original notes, outlines, or other study document that you were at least 25% responsible for creating (i.e., a communal outline created by a study group). You may not bring to the exam or use commercial outlines, supplements, or other materials and books that were not assigned as part of the class.

Academic Policies and Regulations:
This examination is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies and Regulations, reprinted in the College of Law Student Handbook.  Students are expected to be familiar with and to conduct themselves in accordance with those policies and regulations.

Thursday, April 27, 2017

Q & A Sessions

10:30 a.m. Friday and 11 a.m. Saturday, both in RDB 2005. For both, we will do the creative projects (those that are performable), then move to to Q & A. We will stay for as long or short as people have questions.

It will not be recorded.

Tuesday, April 25, 2017

Civ Pro returns to SCOTUS (Updated)

Something to watch that I forgot to mention in class yesterday: SCOTUS on Tuesday hears two new personal jurisdiction cases. Bristol-Myers Squibb v. Superior Court considers a broad approach adopted by the Supreme Court of California for when contacts "relate to" a claim--under the court's "sliding scale," contacts outside California could still relate to identical contacts in California that cause the same harm. BNSF Railway v. Tyrell considers whether an entity can be essentially at home any place other than its state of incorporation and principal place of business-that is, whether the old "doing business" general jurisdiction can survive at all. There is a side issue of whether some statutory language in the Federal Employees Liability Act (the federal statute governing lawsuits by railroad employees) affects venue in federal court or personal jurisdiction in state court.

Update: Transcript of Bristol-Myers; transcript of BNSF. Again, worth reading over as a review/application of these topics.

Monday, April 24, 2017

Essay VIII Sample Answer (Updated)

As I said in one of the classes today, I remain unsure of the right answer on this one. So I split the difference and wrote to sample answers--the first finds no jurisdiction and grants the motion, the second finds there is jurisdiction and denies the motion.

Essay VIII has been graded and can be picked up outside my office.

Final Class-Section C

Monday audio.

Q & A and Creative Project presentation on Friday, time and room TBA, and 11 a.m. Saturday morning. Again, please get any videos, visual materials, books, etc. to me by the end of Thursday.

Final Class--Section A

Monday audio.

Q&A and Creative Project presentation on Friday, time and room TBA, and Saturday morning. Again, please get any videos, visual materials, books, etc. to me by the end of Thursday.

Sunday, April 23, 2017

Need a Study Break While Buffing Up on some F.R.C.P's then "Better Call Saul".

I took a break from studying by catching up on some episodes of "Better Call Saul" on Netflix, and came across a 12(b)(6) reference in Season 2 Episode 2, "Cobbler". If you aren't familiar with the show, it is a prequel spinoff from the "Breaking Bad" series and follows the story of small-time lawyer, Jimmy McGill (referred to as Saul Goodman in the Breaking Bad series), who pushes the boundaries of legal ethics throughout the series.

Around the 20 minute mark, Jimmy discusses a case regarding a retirement community contract dispute with one of his firm's partners. Jimmy noticed in the initial disclosures that the opposing party kept referring to an optional-allowance program, but none of the tenants had opted out and Jimmy thinks its more of a mandatory financial arrangement. Jimmy reasoned this to be a failure to state a claim that the opposing party filed in their answer because if the program is optional then it's voluntary, and if opting-in is a residency requirement then their voluntary claims hold no water because the program would actually be mandatory.

Essentially, Jimmy is saying that the opposing party's answer is factually insufficient by not providing enough facts to prove the plausibility that their claims are in fact voluntary. Jimmy understands that if his motion passes it will be without prejudice thereby allowing the opposing party to amend its pleading, but considering the importance of proving the claim's voluntariness this might be a tough task for the opposing party to accomplish.

There are other Civil Procedure references scattered throughout the series, but this show might be more appropriate for a Legal Ethics class discussion. However, if you need a break from studying I would highly suggest this show as an option.

http://www.amc.com/shows/better-call-saul/season-2/episode-02-cobbler

Saturday, April 22, 2017

Essay VIII Clarification

For purposes of this question, act as if Zervos filed the identical complaint in state court in California. Everything about the Complaint is the same, except the Caption which should read "In the Superior Court of California for Orange County."