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."

Thursday, April 20, 2017

Another note on creative projects

This is extra credit, so not blind-graded. I need your name on the project, not your ID #.

Wednesday, April 19, 2017

For Monday--Section C

Wednesday audio.

Change in plans. We will finish with Erie itself, then stop. So it will be a slightly shortened class. What is the constitutional problem created by the fact that common law is, by definition, state law?  What is the meaning of Brandeis' rejection of a "transcendental body of law" that informed Story's view in Swift?

Reviews, Exams, and Creative Projects

Monday is the final class for both sections. The exam is Monday May 1--Section A at 9 a.m. and Section C at 6:30 p.m.

I will hold two Q&A Sessions, everyone is welcome to attend either or both. The first will be on Friday, April 28, the second will be on Saturday, April 29; times T/B/A.

Creatives projects for Section A will be displayed/presented at the Friday session; projects for Section C will be displayed/presented at the Saturday session. If you want to turn something in prior to the session, please get it to me by Thursday, April 27. This is particularly true for videos (provide me with a thumb drive, if possible) and anything visual for display. If you are writing poems or something similar that you are going to read live, you can send me a copy in advance or give it to me at the session.

The Q&A sessions are just that--Q&A. I will have nothing prepared; I will just be answering questions that you have from your studying. And we will stay until people are out of questions.

In addition, you can email me or post to the blog any questions that arise while studying; I will answer them with periodic blog posts. Check the blogs periodically over the weekend to see what has been asked and answered--it may be things you were thinking of.

Finally, the exam will 15 short-answer questions, worth four points each; the format is the same as the Preliminary Exam; you will have four hours. You may bring with you all assigned course materials (all books and anything assigned and posted to the blog, such as additional cases, provisions, or documents, such as pleadings); class notes; and a course outline for which you were at least 25 % responsible (i.e., a study-group outline). You may not bring in any materials that were not assigned as materials in the class (no additional commercial study guides, etc.).

For Friday--Section A

Wednesday audio.

We continue with the Erie Hypos, beginning with # 2 and the unguided Erie analysis over jury size. Now that you know the framework, work through each problem as if you were outlining an essay on it. This will cover Friday and our final class next Monday.

Essay VIII


Zervos v. Trump:

The defamation lawsuit in Zervos v. Trump was filed in state court in California, the plaintiff’s home state. Trump moves to dismiss for lack of personal jurisdiction.

As the court, decide the motion to dismiss.

For purposes of this question:

1) California has a catch-all Long Arm Statute, stating “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”

2) Accept all the facts in the complaint as true.

Tuesday, April 18, 2017

Erie Hypos--Section A

After the jump are the problems we are going to work through to show how the Erie/Hanna framework operates. For tomorrow (Wednesday), prepare ## 1-3. We will work through the rest on Friday and Monday.

For each problem, consider:
  1) What law applies and why
  2) What countervailing federal rules/statutes might apply
  3) How the issue would be raised, argued, and resolved procedurally in the trial court
  4) How the court will resolve the dispute.

With respect to any state laws given in the hypo, try to figure out what the underlying policies of those laws might be (i.e., what the state is hoping to accomplish by having such a law). So, for example, why do we have statutes of limitations? With respect to possibly applicable federal laws/rules, if they are ones we have already learned in this class, I have not identified them in the hypo; you have to figure out what federal statutes/rules might be in play (consider this a pleading review). If the federal law/rule is new (or fake), I have identified it in the hypo. Needless to say, you will need your rule book in class.

Picture of the board from Monday 4/17


SCOTUS on sanctioning powers

SCOTUS today decided Goodyear Tire & Rubber v. Haeger, addressing the requirement for imposing discovery sanctions under inherent power. It is a short, unanimous opinion, but worth reviewing for its overall discussion (in both text and footnotes) of the sanctions options available to district courts.

In particular, see how the various statutory, rule-based, and inherent sources of sanction power relate and run out. Plaintiffs were complaining about discovery abuse (refusal to produce certain documents), but misconduct not discovered until after the case had settled. So what source? Not FRCP 11, since sanctions cannot be sought once the case ends. Not FRCP 37, since the sanctions for non-production all related to an ongoing case and the appropriate sanction--entering a default--is not an option to a settled case. Not § 1927, since that gets at the attorney, not the party (and it appears the misconduct was by the party, not trial counsel). So the court had to fall back to inherent powers.

Monday, April 17, 2017

For Wednesday--Section C

Monday audio.

We begin with Venue, Change of Venue, and FNC. Read §§ 1291 and 1404 in light of the discussion of both in Atlantic Marine. What is the connection between transfer venue under § 1404 and forum non conveniens? Is venue proper in VOA? What role might § 1404 have played in Burger King? How does the presence of a forum-selection clause affect both the § 1391 and § 1404 analysis (the Court enumerates 5 ways). What is the connection between § 1404 and Forum Non Conveniens; when does the latter come into play. Look at Fla. § 1.061 for its version of F/N/C.

We then turn to Erie; prepare Introduction and History (which is mainly Erie itself), Problem of Procedure, and Modern Approach (which is mainly Hanna). Read Erie with great care, identifying the five steps Justice Brandeis takes in overturning Swift.  Think about how the parties raised these issues procedurally. Read and understand § 1652, which is the touchstone for all of this. Read and understand § 2072 in light of the discussion in Hanna.

Finally, we will not have time to do this in class, but here is a personal jurisdiction problem from an actual case. You can work through it to see what the analysis might look like.

For Wednesday--Section A

Monday audio.

We continue with Hanna, which tells us that a federal statute applies so long as valid. What does the REA require for a rule of procedure to be valid and how does Hanna explain those requirements? Review §§ 2072-2074 and understand the REA process--how does that process affect court's determination of a rule's validity? What happens if no act of Congress is controlling--what does Hanna say the analysis should look like? What is the analytical framework for all these questions?

Important point (and something Glannon makes clear): The starting point in your analysis cannot be "the rule is procedural or the rule is substantive." As Glannon says, that is a conclusion, not an analysis.

I will post the hypos on a separate post.

Sunday, April 16, 2017

Essay VII--Sample Answer

Sample answer after the jump.

Let me highlight some common problems I saw, both specific to this problem and in legal analysis generally.

As to this problem:

• While the problem turned on the Forum Defendant Rule, you cannot ignore whether there is jurisdiction. § 1441(b)(2) speaks of a case otherwise removable and the basis must be diversity. So you first must establish that there is diversity, before turning to whether the FDR applies.
• There are two distinct questions--whether Trump changed his domicile to D.C. and whether, if not, Trump was a New York citizen. Too many of you focused only on the conclusion that Trump had not changed domicile, without talking about where his domicile is. You need to explain, not just conclude, why it is New York.
• No one explained how diversity jurisdiction applies to Washington, D.C., which is (controversially) not a state.

As to legal analysis generally:

• Get yourselves out of the arguments. It's not "As Zervos, I will argue that the motion should be granted because . . ." or "Zervos will argue that the motion should be granted because . . ." It should be "The motion should be granted because . . ." This saves words and reads much better.
• When you have multiple rules and sub-rules, focus on how they fit together and structure your essay accordingly. This problem is a nice example. The question begins with Removal, which then takes you to § 1332, then to the elements of that, then to citizenship and domicile, then to the facts showing domicile. Structure it that way.
• Watch the repetition. Quote or paraphrase the rule--no need to do both.

Friday, April 14, 2017



    U. S. ex rel. Mayo v. Satan and his Staff

     54 F.R.D. 282 (W.D. Pa. 1971)

    Several procedural issues prevented this claim from being brought to court:
    • Complaint failed to state a claim upon which relief could be granted (presumably by an Earthly court.)
    • Personal jurisdiction called into doubt
      • Defendant not a resident of the judicial district.
      • Defendant may be classified as a foreign prince (though this claim was reportedly disputed in another case.)
    • Failure to include with complaint sufficient information for the US Marshalls to serve defendant.
    • Although the Court did note there was a potential for a class action under FRCP 23.
    What procedural rules could you use to have an action heard in court against this particular Defendant?

    Wednesday, April 12, 2017

    For Monday--Section C

    As I said in class, I am holding you to the rest of Modern Approach, covering the facts of Hess analyzed under the modern Shoe approach, Burger King, and Walden. The audio from Section A covering this material is in this post; the discussion begins around the 36:00 mark and runs to the end of the class. I suggest doing this prior to class on Monday.

    For Monday, prepare General Jurisdiction Revisited, Property and Service, and International. Consider the distinction between specific and general jurisdiction and what each requires. When is a defendant subject to general jurisdiction? When dealing with specific jurisdiction, what additional question must we now ask with respect to the constitutional test? How does Shoe apply to in rem and quasi in rem cases? Return to the two hypos about the suit in Florida between the Floridian and New Yorker using property; is there jurisdiction in either one? Finally, note the sharply divided (again) Court in Burnham, with (again) no majority.

    Think about how this personal jurisdiction analysis can or should work with respect to internet contacts. Think about all the different sites and things you do on the internet and how this might work.

    Note, again, that what we're doing is building the analytical outline for your personal jurisdiction analysis--the precise framework you will follow in doing an essay or brief on the subject. As we go, we are adding pieces, such as additional ways for a defendant to purposefully avail. But your answer will follow that flowchart and that language. 




    Then move to Venue, reading the various statutory provisions closely and in light of the discussion in Atlantic Marine. What is the difference between improper venue and venue transfer?  Read §§ 1391 and 1404 in light of the discussion of both in Atlantic Marine. What is the connection between transfer venue under § 1404 and forum non conveniens? Is venue proper in VOA? What role might § 1404 have played in Burger King? Be sure to read the assigned pages in Glannon, which do a nice job of elaborating on the analysis for § 1404.


    Personal Jurisdiction


    For Monday--Section A

    Wednesday audio. Essay VIII to be posted next Wednesday (April 19), due on the last day of class (Monday, April 24).

    For Monday, prepare Introduction and History, Problem of Procedural Rules, and Modern Approach. We pick up where we left off: You are the Railroad; given the differences in possible legal rules, what is your procedural move and your argument in support? What were the five steps Justice Brandeis took to overrule Swift and create the new regime in Erie? How does Hanna follow Erie and how does it change the analysis when the FRCP are in play?

    We will not get to the hypos until Wednesday, so they will be posted early next week.

    § 1367(b) and Rule 19 (Answered)

    Professor,

    Regarding Sec. 1367(b) and Rule 19 plaintiffs:

    • if original jurisdiction is based on diversity and properly fulfilled under 1332, and
    • adding a Rule 19 plaintiff would not destroy complete diversity
    • But the Rule 19 plaintiff's claim does not meet the amount in controversy requirement;
    Would 1367(b) bar supplemental jurisdiction? In Exxon the court reasoned that 1367(b) does not apply to Rule 20 plaintiffs because of the text of the statute (which only applies to plaintiffs joined under 19/24), and also explained that the principle behind the amount in controversy requirement is not undermined if at least one claim meets the amount required.

    But it seems the text of 1367(b) would bar Rule 19 or 24 plaintiffs whose claims are not greater than $75k, even though the principle of the amount in controversy is the same. Is this why the Exxon Court hypothesized that perhaps Congress wanted a higher threshold for claims from these types of "essential" plaintiffs?

    Yes. Exxon required  additional analysis because the situation--claims by persons joined under Rule 20--was not listed in § 1367(b). But a person to be joined under Rule 19 is listed in an express exclusion in § 1367(b). So those claims are not within supplemental jurisdiction, regardless if the problem is lack of complete diversity or less than $ 75k being sought.

    Tuesday, April 11, 2017

    "Time spent reading the rules is never time wasted."

    One of my favorite podcasts, "Your Weekly Constitutional," has a great new episode titled, "Montpelier Summit! Congress, the Courts, and the Separation of Powers."

    The Federal Rules of Civil Procedure are mentioned a few times in a larger conversation about government as a whole. Furthermore, one of the guests speaking on this episode is Paul Michel who is the former Chief Judge of the United States Court of Appeals for the Federal Circuit, and in that role, he contributed to the body that develops the FRCP.

    It is a free listen, as well as interesting and relevant:
     https://itunes.apple.com/us/podcast/your-weekly-constitutional/id439735399?mt=2&i=1000384177455

    Monday, April 10, 2017

    Personal Jurisdiction Review

    Clemens v. McNamee

    The plaintiff, Roger Clemens, moved to Texas in 1977 at the age of fifteen. In 1983, after playing college baseball for the University of Texas, he was drafted by the Boston Red Sox, a Major League Baseball team. Clemens played for the Red Sox until 1996, when he signed with the Toronto Blue Jays. As a member of the Blue Jays, Clemens met the defendant Brian McNamee, an athletic trainer for the Toronto organization. In 1999, Clemens joined the New York Yankees, and one year later, the Yankees hired McNamee as an assistant trainer. Clemens trained with McNamee until some point in 2007. Over the course of their professional relationship, McNamee traveled to Texas approximately thirty-five times to train Clemens and other professional athletes. Although he temporarily resided in other cities during his professional baseball career, Clemens returned to Houston at the end of every baseball season. He currently lives in Texas with his wife and four children.

    In the summer of 2007, federal authorities contacted McNamee in New York City in connection with the Government's criminal investigation of BALCO, a Bay Area laboratory allegedly involved in the development and sale of performance-enhancing drugs. At the interview, authorities told McNamee that the Government had sufficient evidence to secure a conviction against McNamee for delivering illegal performance-enhancing drugs to athletes. In lieu of prosecution, the United States Attorney's Office for the Northern District of California gave McNamee use immunity for any statements he gave in relation to the Government's investigation. McNamee was interviewed by the Government for two days during which he told investigators that he had injected Clemens with performance-enhancing drugs in 1998, 2000, and 2001. These injections, according to McNamee, took place in Toronto and New York.

    A short time after his interview with the Government, federal authorities contacted McNamee again, this time requesting that he cooperate with a Major League Baseball investigation being conducted by former United States Senator George Mitchell into the use of performance-enhancing drugs in the game ("Mitchell Commission"). Federal investigators arranged and participated in McNamee's meeting with Mitchell in New York. On December 12, 2007, the Mitchell Commission released the findings of its investigation in its Report to the Commissioner of Baseball of an Independent Investigation Into the Illegal Use of Steroids and Other Performance Enhancing Substances By Players In Major League Baseball ("Mitchell Report"). The Mitchell Report included McNamee's statements concerning Clemens' use of performance-enhancing drugs. Every national news service, as well as every major newspaper in Texas, republished McNamee's statements. Following the Mitchell Report's release, McNamee spoke with John Heyman, a senior writer for the internet site SI.com. During this interview at McNamee's house in Queens, New York, McNamee repeated the statements that had been published in the Mitchell Report. Heyman posted an article containing these statements to the website SI.com on January 7, 2008.

    In January 2008, Clemens filed suit for defamation against McNamee in Texas state court. McNamee removed the action to the United States District Court and moved to dismiss Clemens' complaint for inter alia lack of personal jurisdiction.

    For purposes of this analysis, proceed as if Texas has a catch-all long arm statute, giving courts jurisdiction "To the extent permitted by the Constitution of the United States."

    For Wednesday

    Monday audio.

    We pick up with Atlantic Marine. How does the presence of a forum-selection clause affect both the § 1391 and § 1404 analysis (the Court enumerates 5 ways). What is the connection between § 1404 and Forum Non Conveniens; when does the latter come into play. Look at Fla. § 1.061 for its version of F/N/C.

    Then be ready to discuss the Personal Jurisdiction Review Hypo, which will be posted separately.

    Then go on to Erie: Introduction and History. Read Erie with great care, identifying the five steps Justice Brandeis takes in overturning Swift.  Think about how the parties raised these issues procedurally. Read and understand § 1652, which is the touchstone for all of this.

    Friday, April 7, 2017

    Essay VII (Due Wednesday)


    Zervos v. Trump

    Summer Zervos filed suit against President Donald J. Trump. The action asserts one claim for defamation (a state-law cause of action), alleging that Trump, as a candidate for president in 2016, repeatedly and publicly called her a liar in denying her allegations that he sexually assaulted her. Although the complaint does not specify the amount sought, successful defamation plaintiffs often recover well in excess of $ 100,000 in compensatory damages. The complaint asks for punitive damages, which are legally available in defamation cases.

    Zervos filed the lawsuit in the Supreme Court of New York (New York’s trial court) on January 23, 2017. This was three days after President Trump’s inauguration (which, by constitutional command, occurred at noon on January 20 (U.S. Const. amend XX)). Trump was served on Thursday, March 23. On Friday, April 7, Trump removed the action to the United States District Court for the Southern District of New York.

    For Monday--Section A

    We will finish Property and Service with Burnham and transient jurisdiction. What is the point of departure between Scalia and Brennan over the application of Shoe to transient jurisdiction? Are there any limits to in-state service being sufficient? Another proposed solution to the narrowing of general jurisdiction, with respect to business entities, is consent, given at the time the business registers to do business in a state. How might this work with personal jurisdiction?

    Finally, read the small article on Transational and consider who P/J works for US persons suing overseas and overseas persons suing in the US.

    We then move to Venue, Transfer Venue, and Forum Non Conveniens.  Read §§ 1291 and 1404 in light of the discussion of both in Atlantic Marine. What is the connection between transfer venue under § 1404 and forum non conveniens? Is venue proper in VOA? What role might § 1404 have played in Burger King?

    Wednesday, April 5, 2017

    For Wednesday--Section C

    Wednesday audio. No class on Monday. Essay VII posted on Friday, due next Wednesday.

    We continue where we left off--what is the problem for X in moving for personal jurisdiction in state court first, rather than removing?

    Prepare all of Modern Approach and General Jurisdiction Revisited.

    How did the WW Court turn the "certain minimum contacts" standard of Shoe into a constitutional test and what are the pieces of that constitutional test? How did Burger King tweak the connection between those strands? What is purposeful availment and how does it relate to minimum contacts?  What might the defendant do to personally avail under the cases? Review the facts of Hess and be ready to discuss how that case would be resolved under the modern Shoe framework (as opposed to the legal fiction the Court relied on under Pennoyer). 

    Reconsider the distinction between specific and general jurisdiction and what each requires. When is a defendant subject to general jurisdiction? When dealing with specific jurisdiction, what additional question must we now ask with respect to the constitutional test?

    For Friday--Section A

    Wednesday audio. Remember we are in RDB 2008 on Friday.

    Prep the next three sections of PJ: General Jurisdiction Revisited, Property, and International. Consider the distinction between specific and general jurisdiction and what each requires. When is a defendant subject to general jurisdiction? When dealing with specific jurisdiction, what additional question must we now ask with respect to the constitutional test? How does Shoe apply to in rem and quasi in rem cases? Return to the two hypos about the suit in Florida between the Floridian and New Yorker using property; is there jurisdiction in either one? Finally, note the sharply divided (again) Court in Burnham, with (again) no majority.

    Think about how this personal jurisdiction analysis can or should work with respect to internet contacts. Think about all the different sites and things you do on the internet and how this might work.

    Note that what we're doing is building the analytical outline for your personal jurisdiction analysis--the precise framework you will follow in doing an essay or brief on the subject. As we go, we are adding pieces, such as additional ways for a defendant to purposefully avail. But your answer will follow that flowchart and that language.

    Tuesday, April 4, 2017

    Sample Answer--Essay VI

    After the jump.

    Section A: Mean 17.7/Median 19

    Section C: Mean 13.5/Median 13.5

    For Wednesday--Section C

    Monday audio.

    We pick up with the last bit of Removal--what does the plaintiff do (procedurally and in terms of arguments) if the case has been removed, but she wants to be back in state court? Just to clarify a point from class tonight: A case is removable when it is one "of which the district courts of the United States have original jurisdiction"--that is, the plaintiff could have filed the case in federal court in the first instance. So figuring out whether the case is removable (e.g., under § 1331) requires the same analysis as with the plaintiff filing there in the first place.

    We then move to our second forum-selection issue, Personal Jurisdiction. Read the first two sections--Introduction and History and Shift to Minimum Contacts. Please note that 15 USC § 78aa (the Securities Act), listed on the syllabus, must be downloaded from the blog.

    Note that Pennoyer is a rite of law-school passage, one of the historically significant cases that gets read during 1L year. Try to get a grasp on the concepts of in personam and in rem jurisdiction (there is a nice summary in Glannon), which is at the core of Pennoyer.

    Consider how personal jurisdiction interacts with subject matter jurisdiction in federal court in the following cases:
       1) In World Wide, how does WW and Seaway not being subject to jurisdiction in Oklahoma affect federal subject matter jurisdiction?
       2) A (TX) sues X (NY) for defamation in Texas state court. Consider both personal jurisdiction and subject matter jurisdiction and decide what X's forum preferences are and what he should do procedurally.

    We then turn to Modern Approach, where we build out the two-step P/J framework (it ultimately will become a four-step). For Monday, prepare all World Wide and Nicastro. How did the WW Court turn the "certain minimum contacts" standard of Shoe into a constitutional test and what are the pieces of that constitutional test? What is purposeful availment and how does it relate to minimum contacts?  Review the facts of Hess and be ready to discuss how that case would be resolved under the modern Shoe framework (as opposed to the legal fiction the Court relied on under Pennoyer).

    Monday, April 3, 2017

    For Wednesday--Section A

    Wednesday class from 3:30-4:40 in RDB 2006.

    We continue PJ: Modern Approach, starting where we left off with Nicastro. What version of stream did Justice Ginsburg adopt in her dissent? What about Justice Breyer's concurrence and how does that affect the question of whether Justice Brennan's approach to stream of commerce still works? If McIntrye did not purposefully avail in New Jersey, where did he purposefully avail and does that mean it is subject to suit somewhere?

    Review the facts of Hess and explain why the defendant is subject to jurisdiction in Massachusetts under the modern approach.  Finish Modern Approach, which includes Walden and Burger King. According to BK, what is the connection between the two strands of the Shoe test? What new ways of purposefully availing do these cases introduce?

    Then move to General Jurisdiction Revisited and Daimler. We know the difference between general and specific jurisdiction. What establishes general jurisdiction and how does that affect the Shoe analysis?

    Sunday, April 2, 2017

    Preliminary Exam--Sample Answers

    These are rough, very brief sketches. Exams can be picked up outside my office beginning Monday afternoon.

    A few general comments.

    First, this is a unique analytical format, given the word limits. But in such a situation, your focus should be on application rather than a lengthier statement and explanation of the rule and its underlying policies and theories. That is appropriate for a longer essay. For something like this, give a quick statement of the important part of the rule, then apply it, with explanation. Too many answers were conclusory--"there was no undue delay," without applying the facts to explain the conclusion. This was especially problematic, and ironic, on Q # 1. The point is, no when a brief, quick answer is required and that should focus on application, not recitation of the rule (unless the question asks you for that).

    Second, don't fight the facts. I've given you all the facts you need. If the facts aren't there, don't write about something. If you find yourself writing "If X" or "Assuming X," stop--you're going in the wrong direction. If X is part of your analysis, the question will make that clear.

    Section A: Mean: 11.3; Median 11
    Section C: Mean 12.1; Median 12

    Trump and Twiqbal

    A judge in the Western District of Kentucky largely denied a motion to dismiss in an action for incitement-to-riot against President Trump, brought by three protesters who were assaulted by other attendees at the rally. This is a good example of a court finding a complaint sufficient (although there are good First Amendment arguments that the conclusion is legally wrong). There also is a brief discussion of 12(f) motions to strike, emphasizing how disfavored such motions are and the court's reluctance to "edit" the complaint, including the introductory paragraphs featuring unrelated "rhetorical flourishes."

    Saturday, April 1, 2017

    For Monday--Section C

    Saturday make-up audio.

    We continue with Supplemental Jurisdiction. We continue with the connection between the joinder standard and the § 1367(a) standard and how it affects counterclaims under 13(a) and (b); consider the approach in Jones, with the Second Circuit being one of two courts (the other is the Seventh Circuit) that do not treat the standards as co-extension. Parse § 1367(b) and its interpretation in Exxon/Ortega. Again, this is a complicated statute, so spend some time digging into it.

    We then turn to Removal; read the assigned statutes and try to work through how removal functions, knowing what the parties do under §§ 1441, 1446, and 1447. What is the forum-defendant rule, why do we have it, and how does it operate? Please review the Notice of Removal in Kinsmann, which nicely illustrates how a defendant moves a case from state to federal court.

    Time permitting, we will work through a problem as an SMJ review--look at the complaint in Sullivan and the separate copy of the advertisement.

    Do not do the reading on Personal Jurisdiction for Monday; we will get to that on Wednesday.

    Friday, March 31, 2017

    For Monday--Section A

    Friday audio--Hour I, Hour II. Essay VII will likely be posted next Friday (April 7) and due on Wednesday, April 12; I will confirm next week. Remember that class on April 7 will be in RDB 2008 and we will have prospective students observing.

    We continue our introductory discussion of Personal Jurisdiction. Review the rest of FRCP 4(k) and understand how the two-step analysis works in federal court as opposed to state court. The consider how personal jurisdiction interacts with subject matter jurisdiction in federal court:
       1) In World Wide, how does WW and Seaway not being subject to jurisdiction in Oklahoma affect federal subject matter jurisdiction?
       2) A (TX) sues X (NY) for defamation in Texas state court. Consider both personal jurisdiction and subject matter jurisdiction and decide what X's forum preferences are and what he should do procedurally.

    We then turn to Modern Approach, where we build out the two-step P/J framework (it ultimately will become a four-step). For Monday, prepare World Wide and Nicastro. How did the WW Court turn the "certain minimum contacts" standard of Shoe into a constitutional test and what are the pieces of that constitutional test? What is purposeful availment and how does it relate to minimum contacts?  Review the facts of Hess and be ready to discuss how that case would be resolved under the modern Shoe framework (as opposed to the legal fiction the Court relied on under Pennoyer).

    Wednesday, March 29, 2017

    For Saturday make-up--Section C

    Wednesday audio. Essay VI due by 5 p.m. Friday to Donna Yff (yffd@fiu.edu). Food provided on Saturday.

    We continue with Federal Question Jurisdiction. Note the Glannon's reading on the difference in meaning of "arising under" between § 1331 and Article III. WIf the Mottleys cannot sue in federal district court, what should they do? And how do they get a federal forum for any federal issues? Under Mims, what is the core meaning of "arising under" for § 1331 purposes?

    We then turn to Supplemental Jurisdiction. Think about the bases for jurisdiction over all the different claims in VOA and Godin.  What is the connection between the joinder standard in the FRCP and the § 1367(a) standard--what are the possible meanings of each and how does it affect joinder? Think about the 4 reasons in (c) that a court could decline supplemental jurisdiction and how each might arise. Parse § 1367(b) and its interpretation in Exxon/Ortega. Again, this is a complicated statute, so spend some time digging into it.

    For Friday (Double Session)--Section A

    Wednesday audio. Essay VI posted on Friday, due on Wednesday, April 5. Double session on Friday.

    We pick up with Removal and the question we left off on--given the purposes of diversity and federal-question jurisdiction, why does the Forum Defendant Rule apply to the former but not the latter? Again, review the removal statutes and work through the removal process. Please review the Notice of Removal in Kinsmann, which nicely illustrates how a defendant moves a case from state to federal court.

    We then do the SMJ Review, with the materials from Sullivan (on the Blog). Look at the complaint and consider where the lawsuit could be brought and why and what strategic options and preferences the defendant (The NYT) might have.

    We then turn to Personal Jurisdiction, our second forum-selection issue, this going to what state a lawsuit can be brought. Prepare both  Introduction and History and Shift to Minimum Contacts. Note that Pennoyer is a rite of law-school passage, one of the historically significant cases that gets read during 1L year. Try to get a grasp on the concepts of in personam and in rem jurisdiction (there is a nice summary in Glannon), which is at the core of Pennoyer.

    Tuesday, March 28, 2017

    Zervos v. Trump (Presidential Immunity)

    Regarding the Zervos v. Trump Complaint (from the Essays)

    The president's legal team want it dismissed under Presidential Immunity until after he leaves office.

    The argument presented by the president's legal team is that "the President [has immunity] from being sued in state court while in office"

    Article here.

    Analysis of Zervos here.

    Declaration of Domicile: 


    Today, at work, I had to look up some information from Pinellas County Clerk of Court's website, and it caught my eye that they offer a service of  "Declaration of Domicile" I likely, would not have paid attention to it before yesterday's class, and I had no idea that there was a service like that offered even though I had lived in Clearwater, Pinellas county for the last twenty years.... I wonder if there is something similar in Miami-Dade?

    Here is the info from the website, and a link:

    Declaration of Domicile

    A Declaration of Domicile is a sworn statement of permanent residency. It also states that you intend to maintain this county as your permanent residence.
    If you are an American citizen, you will need to bring:
    • A valid form of identification such as a driver's license or a Florida issued identification card. An out-of-state driver's license is acceptable.
    • Your previous address and your present address.
    If you are not an American citizen, you will need to bring proof of your PERMANENT alien status issued to you by Immigration in addition to those items listed above.
    Declaration of Domicile forms are available in the Clerk's office and in a fillable pdf format here.
    Fees are established by legislative action and are subject to change. Refer to a current "Schedule of Service Charges" available in any Clerk's office location, or online, for applicable fees.


    https://www.pinellasclerk.org/aspInclude2/ASPInclude.asp?pageName=ori.htm#domicile

    "Baseball, Apple Cake, and Civil Case Management"

    Below is a great article from the Federal Bar Association's magazine, "The Federal Lawyer." It talks about "Twiqbal," effective case management, and other relevant topics to our class.

    http://www.fedbar.org/Publications/The-Federal-Lawyer/Columns/Commentary.aspx?FT=.pdf

    Monday, March 27, 2017

    For Wednesday--Section C

    Monday audio. Essay VI due by 5 p.m. Friday, via email to Donna Yff in the Registrar (yffd@fiu.edu). Make-up from 11 a.m.-1 p.m. on Saturday.

    We continue with Diversity. Besides simplicity, why else did the Court consider nerve center a better test? How does that make sense going back to the local-bias purposes behind diversity? How are non-corporate entities treated and why? Review the allegations of diversity jurisdiction in Wal Mart and VOA Was diversity jurisdiction alleged correctly? Why or why not?

    We then turn to Federal Question Jurisdiction. Note the Glannon's reading on the difference in meaning of "arising under" between § 1331 and Article III. What are the three purposes behind federal-question jurisdiction, both under Article III and the statutes? How might Congress draft a statute giving "arising under" jurisdiction (consider all the statutes assigned and mentioned in our various complaints)? What is the "Well-Pleaded Complaint" Rule and how does it operate? If the Mottleys cannot sue in federal district court, what should they do? And how do they get a federal forum for any federal issues? Under Mims, what is the core meaning of "arising under" for § 1331 purposes?

    Dismissal: 12(b)(1) or 12(b)(6)?

    Post-class discussion suggested some confusion on something, so let me offer some clarification here:

    We said two things in class:
       1) Under § 1367(a), a court can exercise supplemental jurisdiction only if it had original jurisdiction. So if the anchor claim is dismissed for lack of subject matter jurisdiction, the court never had supplemental jurisdiction.
       2) Under § 1367(c)(3), the court may decline supplemental jurisdiction if the anchor claim has been dismissed. But the court may elect to keep supplemental jurisdiction, even if the anchor claim is gone.

    How do we reconcile? The key is identifying when a dismissal is a 12(b)(1) or a 12(b)(6)--If 12(b)(1), then supplemental jurisdiction is gone; if 12(b)(6), then the court could keep the supplemental claims. SCOTUS over the past decade has decided several cases identifying when a dismissal is (b)(1) or (b)(6), noting every time that the effect of supplemental jurisdiction is one of the key consequences of identifying the dismissal as one or the other.

    One thing to recognize, however, is the general rule that the dismissal of a claim on the merits does not retroactively deprive the court of jurisdiction. Jurisdiction is established by the allegations in the well-pleaded complaint and the failure of those claims on the merits does not change that. So, for example, that the copyright claims in Naruto are dismissed for failure to state a claim because a macaque has no rights under the Copyright Act does not mean the court lacked jurisdiction. Similarly, if the 14th Amendment claims in Godin are dismissed, there was jurisdiction because federal law created Godin's cause of action and provides the rule of decision; this means the court can exercise and retain (if it chooses) supplemental jurisdiction over the state claims.


    For Wednesday--Section A

    Monday audio. EssayVI due on Friday. Double-session on Friday.

    We continue with Supplemental Jurisdiction. We continue with the connection between the joinder standard and the § 1367(a) standard and how it affects counterclaims under 13(a) and (b); consider the approach in Jones, with the Second Circuit being one of two courts (the other is the Seventh Circuit) that do not treat the standards as co-extension. Parse § 1367(b) and its interpretation in Exxon/Ortega. Again, this is a complicated statute, so spend some time digging into it.

    We then turn to Removal; read the assigned statutes and try to work through how removal functions, especially how the procedure operates. Pay special attention to §§ 1441, 1446, and 1447.

    Friday, March 24, 2017

    Efficiency and the Well-Pleaded Complaint Rule

    Following class today, Josh offered an important insight on Mottley and the Well-Pleaded Complaint Rule: It is really inefficient. SCOTUS had the case the first time, sent the Mottleys to go all the way through the state system, only to come back several years later for SCOTUS to reach the merits of the defense. Does that make sense from an efficiency standpoint?

    A couple of responses, just on inefficiency:

    1) Mottley itself was inefficient, but not the W/P/C in all cases. Once Mottley established the W/P/C, that inefficiency disappears, because the parties to the next Mottley-type case know they have to file in state court rather than federal court. Otherwise, the only inefficiency is adding an additional layer before parties are able to get into a federal forum.

    2) Efficiency cuts in both directions--the W/P/C also promotes efficiency, by allowing the court to decide jurisdiction early and quickly, based only on the complaint.

    3) Efficiency is not the only value. The docket-control benefits can reasonably prevail over the efficiency benefits. This is a policy debate, to which there is not necessarily a correct answer.

    Worth thinking about.

    Essay VI (Due Wednesday, March 29)


    Kuttner v. Zaruba

    Susan Kuttner, a former deputy sheriff in DuPage County, Illinois, filed suit in federal court against Sheriff John Zaruba. The single claim alleges that she was fired because of her sex, in violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination because of sex in employment.

    For Monday--Section A

    Friday audio. Prelim Exam due at beginning of class Monday. Essay VI will be posted shortly.

    We continue with Supplemental Jurisdiction and the fundamental problem case of a mix of federal and state claims between non-diverse parties (as in Godin). Think about the bases for jurisdiction over all the different claims in VOA and Godin. Is § 1367 satisfied in Godin? In VOA? What is the connection between the standard for joinder under the rules and the standard for jurisdiction in § 1367? What was going on in Exxon/Ortega? How does § 1367(b) interact with the requirements of § 1332?

    Wednesday, March 22, 2017

    For Monday--Section C

    Wednesday audio. Preliminary Exam due at the beginning of class Monday. Essay VI will be posted on Friday.

    We have a few final words on Overview. What is the rule on exclusive v. concurrent jurisdiction? How does § 1338(a) illustrate that? When was subject matter jurisdiction raised and argued in Mas and in Belleville--was that timing permissible?

    For Monday, prepare all of Diversity Jurisdiction. Consider:
       • Compare the text of Art. III § 2 with the text of § 1332.
       • What are the purposes of diversity jurisdiction?
       • What is the difference between complete diversity and minimal diversity? What is required by § 1332? What is required by Article III? And why does it make a difference?
       • What are the policy reasons for requiring complete rather than minimal diversity? What are the problems with that argument?
       • Where was Mrs. Mas from and why? What is the difference between complete and minimal diversity?
       • How are entities treated for diversity purposes and why are the each treated this way?
       • What is the policy behind the exception clause in § 1332(a)(2)?
       • Review the allegations of diversity jurisdiction in Wal Mart and VOA Was diversity jurisdiction alleged correctly? Why or why not? 

    We weil get to Federal Question Jurisdiction for Friday and Supplemental Jurisdiction for our make-up class on Saturday, April 1.

    For Friday--Section A

    Wednesday audio.

    Read and review all of Federal Question Jurisdiction. Again, note the Glannon's reading on the difference in meaning of "arising under" between § 1331 and Article III. We left off on the question of when and why we need jurisdictional grants other than § 1331--do they still play a role? What is the purpose of "arising under" federal question jurisdiction? What is the "Well-Pleaded Complaint" Rule and how does it operate? If the Mottleys cannot sue in federal district court, what should they do? And how do they get a federal forum for any federal issues? Under Mims, what is the core meaning of "arising under" for § 1331 purposes?

    Because I think we will get there, start Supplemental Jurisdiction. Just for Friday, read Glannon p. 261-69 and 275-79, along with § 1367 (focusing on subpart (a) and (c) and Jones. Think about the bases for jurisdiction over all the different claims in VOA and Godin.

    When a golf course is like a cruise line

    When is a golf course like a cruise line? When it comes to civil procedure of course!

    Yesterday, as part of LSV II requirements, I attended the oral arguments for TRUMP ENDEAVOR 12 LLC,  vs.  FERNICH, INC. D/B/A THE PAINT SPOT.

    Daily Business Review summary here:  here http://www.dailybusinessreview.com/id=1202769742287/Paint-Contractor-Wins--Award-Against-Trump-Resort. 

    Paint contractor The Paint Spot (plaintiff in original complaint and appellee) claims that President Trump's Doral golf club (defendant and appellant) did not pay the last $34k of a $130k paint bill as part of the renovations of the "Blue Monster" golf course. Paint Spot won in lower court and at one point there was a foreclosure auction sale scheduled for the golf club.

    The appellant's main claim was that  the appellee had failed to provide timely notice of a lien to the correct party.  The Paint Spot's attorney argued that since the incorrect party had been provided by the defendant, Paint Spot had substantially performed.  Trump's attorney countered that once the error had been discovered, Trump had notified Paint Spot of the correct party, with Paint Spot confirming via email that it would serve the correct party, but never did.  Paint Spot's attorney emphasized that despite this error, Trump had treated Paint Spot as though it had filed with the correct party, even asking for lien waivers in order to partially pay Paint Spot.

    The key differences in this case versus  Krupski v Costar Cruise Lines is that: (a) the defendant informed the plaintiff of the mistake, (b) the plaintiff never corrected the mistake, and (c) the defendant treated the incorrect notice as though it was valid for at least 9 months.

    This $34k dispute is now almost $300k with attorney fees.

    John Voss
    Section C

    Tuesday, March 21, 2017

    Clarification on Green Card Holders--Section A

    Clarifying Monday's discussion about the exception for Green Card holders in § 1332(a)(2):

    A non-U.S. citizen, regardless of immigration status, is treated as a citizen or subject of a foreign state for all statutory purposes. So A (Cuba) v. X (Ven) is an action between citizens or subjects of a foreign state and not within § 1332. And A (Cuba) v. X (GA) is an action between a citizen of a state and a citizen or subject of a foreign state, which would satisfy § 1332(a)(2). None of that changes if A is admitted for lawful permanent residence and domiciled in Florida.

    What the exception clause in § 1332(a)(2) does is simply exclude from that subsection one particular action between a citizen of a state and citizen or subject of a foreign state--where the citizen of the foreign state is admitted for lawful permanent residence. Then, the statute requires an additional inquiry--is he domiciled in the same state as the opposing party. If he is, the case is not within the jurisdictional grant; if he is not, the case is within the jurisdictional grant.

    Thus, A (Cuba/FL) v. X (FL) is not within § 1332(a)(2) because of the exception, but A (Cuba/FL) v. X (GA) is within § 1332(a)(2). But the latter case would not be under (a)(1) because A is not treated as a citizen of FL.

    Monday, March 20, 2017

    For Wednesday--Section C

    Monday audio--Part I, Part II.

    We continue with Young and the slightly different approach the Court took to the burden-shifting framework in an accommodation case. What evidence was there on each of the points in the framework? We then have a few wrap-up points on summary judgment, looking at the 7th Amendment and FRCP 56(f) and (g). What happens if summary judgment is granted in full? What if denied or granted only in part?

    We then shift our attention to questions of forum-selection--where a case will be heard. This will also give content and detail to some rules that we already have discussed, such as 12(b)(1)-(3)--we now will discuss the legal rules that govern such motions and such issues.

    We start with Subject Matter Jurisdiction. Prepare Overview of Federal Jurisdiction, looking at the jurisdictional allegations in our sample pleadings. Then move to Diversity Jurisdiction. Consider:
       • What are the purposes of diversity jurisdiction?
       • What is the difference between complete diversity and minimal diversity? What is required by § 1332? What is required by Article III? And why does it make a difference?
       • What are the policy reasons for requiring complete rather than minimal diversity? What are the problems with that argument?
    • Where was Mrs. Mas from and why? What is the difference between complete and minimal diversity?
       • How are entities treated for diversity purposes?
       • What is the policy behind the exception clause in § 1332(a)(2)?
       • Review the allegations of diversity jurisdiction in Wal Mart and VOA Was diversity jurisdiction alleged correctly? Why or why not?

    For Wednesday--Section A

    Monday audio. Prelim Exam posted earlier; due at the beginning of class on Monday. Essay VI will be posted on Friday, due at the beginning of class next Wednesday, March 29.

    We continue with Diversity Jurisdiction. In addition to the cases assigned, download Americold from the blog. Consider who domicile is determined for all types of business corporations. What is the "Nerve Center" and why did the Hertz Court adopt that as the definition of principal place of business? Look at the jurisdictional statements in the complaints in Morgan and VOA; are there problems with the way either alleged diversity jurisdiction? Break down the jurisdiction problems in Belleville and Zambelli. Review FRCP 19(a) and (b). What can/should happen when a party in the case destroys complete diversity?

    We then turn to Federal Question Jurisdiction. For Wednesday, read the statutory provisions, Mottley, and the assigned portions in Glannon; note Glannon's discussion of the different meaning of "arising under" for § 1331 and Article III. What is the purpose of "arising under" federal question jurisdiction? What is the "Well-Pleaded Complaint" Rule and how does it operate?

    Finally, note that we will not have class on Friday, April 14. We will do an advance make-up in a double session on Friday, March 31 (a week from this Friday).

    Preliminary Exam--Both Sections

    Here. Due at the beginning of class on Monday, March 27.

    Good luck.

    Wednesday, March 15, 2017

    Sample Discovery Documents

    So you have a sense of what these look like, three interrogatories and a production request: Here, here, and here. In addition, here is a Response to Request for Admissions in Michael Brown's lawsuit against the City of Ferguson.

    Friday, March 10, 2017

    For Monday after break--Section A

    Friday audio. Have a good break.

    Preliminary Exam will be posted on Monday, March 20 and due at the beginning of class on Monday, March 27. Essay VI will be posted on Friday, March 24 and due on Wednesday, March 29.

    I realized after class that I did not assign Belleville for today; read it to see how subject matter jurisdiction came up.

    We continue with Diversity Jurisdiction. Read the entire section.

       • What is the difference between complete diversity and minimal diversity? What is required by § 1332? What is required by Article III? And why does it make a difference?
       • What are the policy reasons for requiring complete rather than minimal diversity? What are the problems with that argument? 
       • Where was Mrs. Mas from and why? What is the difference between complete and minimal diversity?
       • How are entities treated for diversity purposes?
       • What is the policy behind the exception clause in § 1332(a)(2)?
       • Review the allegations of diversity jurisdiction in Wal Mart and VOA? Was diversity jurisdiction alleged correctly? Why or why not?


    Wednesday, March 8, 2017

    For Friday--Section A

    Wednesday audio.

    The Preliminary Exam will be posted on Monday, March 20 and due at the beginning of class on Monday, March 27. Details can be found on the Syllabus. Essay VI will be posted on Friday, March 24 and due at the beginning of class on Wednesday, March 29.

    On Friday, we will wrap the discussion of Summary Judgment. Look at FRCP 56(f) and (g). What happens if summary judgment is granted in full? What if denied or granted only in part?

    We then shift our attention to questions of forum-selection--where a case will be heard. This will also give content and detail to some rules that we already have discussed, such as 12(b)(1)-(3)--we now will discuss the legal rules that govern such motions and such issues.

    We start with Subject Matter Jurisdiction. Prepare Overview of Federal Jurisdiction, looking at the jurisdictional allegations in our sample pleadings. Then move to Diversity Jurisdiction; for Friday, look at § 1332(a), § 1369, Mas, and the entire Glannon's reading. Consider:
       • What are the purposes of diversity jurisdiction?
       • What is the difference between complete diversity and minimal diversity? What is required by § 1332? What is required by Article III? And why does it make a difference?
       • What are the policy reasons for requiring complete rather than minimal diversity? What are the problems with that argument?