Monday, January 30, 2017

For Wednesday--Section C

Monday audio. Essay I due at the beginning of class on Wednesday.

We continue with The Idea of Notice Pleading. What are the benefits to the plaintiff of relaxed notice pleading, without the demand for facts? What are the strategic drawbacks to pleading too much. How does a 12(e) motion work? What happens if a 12(e) is granted and how does that resemble 12(b)(6)?

We then turn to Fact/Heightened Pleading. Do not read Tellabs, only Swierkiewicz. Look at FRCP 9(b) and the Private Securities Litigation Reform Act (PSLRA), section (b). What does each require? How are they different? Why fraud or securities fraud for differential treatment? Does the departure from transsubstantivity make sense? Why does 9(b) not apply to discrimination or civil rights claims, as explained in Swierkiewicz? What was the argument it should and why did the Court reject the argument?

We then turn to Present and Future of Federal Pleading, focusing in detail on Twombly and Iqbal and how they changed our understanding of 8(a)(2). What does "plausible" mean? What is the analysis the court now performs on a 12(b)(6) motion? This will carry us into next week.

For Wednesday--Section A

Monday audio. Essay I due at the beginning of class on Wednesday.

We pick with with Fact/Heightened Pleading, look at both FRCP 9(b) and the Private Securities Litigation Reform Act (PSLRA). What does each require? How are they different? Why fraud or securities fraud for differential treatment? Does the departure from transsubstantivity make sense? Why does 9(b) not apply to discrimination or civil rights claims, as explained in Swierkiewicz? What was the argument it should and why did the Court reject the argument?

We then turn to Present and Future of Federal Pleading, focusing in detail on Twombly and Iqbal and how they changed our understanding of 8(a)(2). What does "plausible" mean? What is the analysis the court now performs on a 12(b)(6) motion?

Responding to claims for relief

In answer to this question about the add-on paragraph at the end of 12(b):

That comes up in downstream additional claims (for example, an answer to a counterclaim in response to a third-party complaint or an answer to a counterclaim in response to an intervention). These do not necessarily come within the list of required pleadings under 7(a), although courts allow them. This additional paragraph is understood to preserve these defenses.

We will see more of this when we get to Responsive Pleadings in a few weeks.

Sunday, January 29, 2017

Rule 12 Defenses "Flowchart"

Here is my attempt to crystallize whether or not you can assert the different defenses under Rule 12. I'm not saying this is right, so feedback is always welcome.

Rule 12 Defenses Flowchart

Can you assert a 12(b) defense?

  1. 12(b)(1) Lack of Subject-Matter Jurisdiction: At any time a court must dismiss an action if it determines it lacks of subject-matter jurisdiction. No limit on asserting this defense.
  2. 12(b)(2)-(5) defenses: Was a prior Rule 12 motion made when the defense was available but omitted?
    1. Yes = defense waived according to 12(h)(1)(A).
    2. No. Was a responsive pleading required to be filed?
      1. No. Defense may be brought at trial, by motion prior to the responsive pleading, included in a responsive pleading, or in an amended pleading.
      2. Yes. Has the responsive pleading been filed?
        1. No. The defense may be asserted by motion prior to the responsive pleading, included in the responsive pleading, or included in amendment as a matter of course under 15(a)(1); else the defense is waived under 15(h)(B)(ii).
        2. Yes. The defense may be included in an amendment as a matter of course under 15(a)(1). Otherwise the defense is waived under 15(h)(B)(ii).
  3. 12(b)(6)-(7) defenses: Was a prior Rule 12 motion made when the defense was available but omitted?
    1. Yes. Defense may be raised under any 7(a) pleadings, as part of a 12(c) Motion for Judgment on the Pleadings, or at trial.
    2. No. Defense may be raised by a Rule 12 motion, or by any 7(a) pleadings, as part of a 12(c) Motion for Judgment on the Pleadings, or at trial.

FRCP 12(b) (Defenses) - clarification

Professor Wasserman,

From my reading of 12(b):

Rule 12(b) mentions being able to assert any defense at trial if a claim for relief does not require a responsive pleading. Under what circumstances would a claim for relief not require a responsive pleading?

Rule 12(a)(1) seems to indicate you will always have to serve an answer to a complaint, counterclaim, or crossclaim, giving rise to my question.

Friday, January 27, 2017

For Monday--Section A

Friday audio.

We will continue with Motions and the waiver hypotheticals. Review # 3 by reading FRCP 12(h)(1)(B)(ii) together with FRCP 15(a)(1); focus on the precise text of each rule, the relationship between them, and what you have to do moving between each rule. Think of them as one CREAC embedded within another. We will review the last two hypos, then discuss FRCP 12(f).

We then move to The Idea of Notice Pleading. This will bring us back to the question of what FRCP 8(a)(2) means by "short and plain statement of the claim" and when a claim is subject to dismissal under FRCP 12(b)(6). Read Conley, trying to figure out what the plaintiffs claimed and what they included in the complaint. What are the arguments for allowing the plaintiff to plead minimal facts? What are the drawbacks to the plaintiff including more facts in the complaint?

Then move to Fact of Heightened Pleading. Ignore Tellabs. Read FRCP 9(b) and Swierkiewicz, along with section (b) of the Private Securities Litigation Reform Act. We now see our first departure from transsubstantivity, with special pleading rules for fraud and securities fraud.Think about the reasons for imposing heightened pleading here--why demand more facts in the Complaint for these allegations and claims? Do those reasons actually make sense?

Essay I

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Zervos v. Trump is an action filed against President-Elect (now President) Donald J. Trump by Summer Zervos, a former contestant on The Apprentice. Zervos alleges that Trump sexually assaulted her in a hotel room in Florida in 2007. Her claim, however, is for defamation. Her theory, as revealed in the allegations of the Complaint, is that Trump, as a presidential candidate, repeatedly and publicly denied allegations of assault (by Zervos and other women) and claimed those claims were fabricated. In doing so, he was calling Zervos a liar. And since her accusations of assault were true, his calling her a liar was false, thereby constituting defamation per se.



On October 12, 2016, around the time that Ms. Zervos publicly spoke about her alleged assault and prior to many of Trump’s denials described in the Complaint, Natasha Stoynoff, a journalist at People Magazine, publicly reported that Mr. Trump had sexually assault her in 2005.

Ms. Stoynoff wants to bring a similar action against Mr. Trump for defamation. Stoynoff will assert a similar theory as in Zervos: Trump’s denials of the assaults and his statements (quoted in the Zervos Complaint) that reports of an assault were fabricated labeled Stoynoff a liar. Because Trump did assault Stoynoff, her statements were true, meaning Trump labeling her a liar was false, thereby constituting defamation per se.



Can Stoynoff join as a plaintiff in this single lawsuit with Zervos? If Stoynoff does not join and files a separate action (in the same federal district), is there anything the courts or parties can do to make litigation of the two cases more streamlined and efficient?



(For purposes of this essay, treat this action and Stoynoff’s potential action as having been filed in federal district court and subject to the Federal Rules of Civil Procedure. Also for purposes of this essay, consider and work with all the facts and statements quoted in the Zervos Complaint. In addition, accept that Trump made other statements, not quoted in the Zervos Complaint, explicitly denying Stoynoff’s accusations and stating that Stoynoff had fabricated her claims.)

This is due at the beginning of class on Wednesday, January 31. 

Wednesday, January 25, 2017

For Monday--Section C

Wednesday audio.

We continue with Motions; be sure you have read all the materials assigned, including the cases. We pick up with FRCP 12(b)(6). What is 12(b)(6) asking, taking all the facts and inferences as true? If that motion takes the facts as true, what is the court's job? How would this work on the motion in Naruto? A complaint can fail 12(b)(6) for one of two reasons: it is legally insufficient/defective or factually insufficient/defective? What does each mean, what is the difference, and how does it affect whether dismissal should be with out without prejudice? Consider both the Naruto complaint and motion, as well as PAE.

Read FRCP 12(g) and (h) carefully and try to break them down. Then consider the following hypos:

1) A v. X. X files a motion raising insufficient service; the motion is denied. Can X now include lack of personal jurisdiction and failure to state a claim as a defense in the Answer?

2) A v. X. X files a motion raise improper venue; it is denied. X files an Answer. Can X now file a motion to dismiss for lack of subject matter jurisdiction?

3) A v. X. X files an Answer, raising no 12(b) defense. Four weeks later, X realizes it has defenses for lack of personal jurisdiction and failure to state a claim. Can X include that in an Amended Answer (hint: You must read FRCP 15(a)(1) and (2) carefully to answer this).

4) A v. X. X moves to dismiss for lack of subject matter jurisdiction; motion denied. Can X now file a motion to dismiss for failure to state a claim?

We then will move to The Idea of Notice Pleading. This will bring us back to the question of what FRCP 8(a)(2) means by "short and plain statement of the claim." Read Conley, trying to figure out what the plaintiffs claimed and what they included in the complaint. What are the arguments for allowing the plaintiff to plead minimal facts? What are the drawbacks to the plaintiff including more facts in the complaint?

Looking ahead to all of next week, we will get to the next three sections: The Idea of Notice Pleading; Fact Pleading; and Present and Future of Federal Pleading.

Sample Essay (Both Sections)

After the jump, is an essay question from two years ago, along with a sample answer. It will give you a basic sense of what I am looking for in your answers and how it should be structured. Note that I am trying to be straight-forward: Give and explain the rule (starting with the statutory or FRCP text and then moving outward to other sources), then apply it to the facts. Note that there may be sub-issues, each demanding its own Rule/Explanation/Application.

One additional note, building on the Essay Instructions (which you all should have read): I do need full citations or bluebook form. It is enough to say FRCP ___ or § ____ or give the first name of a case. However, I expect you to be precise as to which part of a multi-part statute or rule you are citing to, getting to the most-specific language, as needed. And I expect that to be numbered and presented properly in terms of lower case or capital letters and the use of parens. Especially since you should not be time-crunched in doing this.

Rule numbering goes as follows:

FRCP Number(lower case)(Number)(Capital Letter)(Little Roman numerals, known as "Romanettes"). So:, if you are telling me the defendant has 21 days to file an Answer, you should cite: FRCP 12(a)(1)(A)(i).

Question and Sample Answer after the break:

For Friday--Section A

Wednesday audio.

We continue with Motions; be sure you have read all the materials assigned, including the cases. We pick up with FRCP 12(b)(6). If that motion takes the facts as true, what is the court's job? How would this work on the motion in Naruto? A complaint can fail 12(b)(6) for one of two reasons: it is legally insufficient/defective or factually insufficient/defective? What does each mean, what is the difference, and how does it affect whether dismissal should be with out without prejudice? Consider both the Naruto complaint and motion, as well as PAE.

Read FRCP 12(g) and (h) carefully and try to break them down. Then consider the following hypos:

1) A v. X. X files a motion raising insufficient service; the motion is denied. Can X now include lack of personal jurisdiction and failure to state a claim as a defense in the Answer?

2) A v. X. X files a motion raise improper venue; it is denied. X files an Answer. Can X now file a motion to dismiss for lack of subject matter jurisdiction?

3) A v. X. X files an Answer, raising no 12(b) defense. Four weeks later, X realizes it has defenses for lack of personal jurisdiction and failure to state a claim. Can X include that in an Amended Answer (hint: You must read FRCP 15(a)(1) carefully to answer this).

4) A v. X. X moves to dismiss for lack of subject matter jurisdiction; motion denied. Can X now file a motion to dismiss for failure to state a claim?

We then will move to The Idea of Notice Pleading. This will bring us back to the question of what FRCP 8(a)(2) means by "short and plain statement of the claim." Read Conley, trying to figure out what the plaintiffs claimed and what they included in the complaint.

Monday, January 23, 2017

For Wednesday--Section C

Monday audio--Hour I, Hour II.

We continue with Rule 11.We start with the question we left on--how is pleading inconsistent or contradictory claims consistent with FRCP 11(b)(3)? Consider how VOA handled that in ¶¶ 68-74 of the Complaint?
   • Then consider what sanctions are imposed--what is the purpose of sanctions under 11(c)(4)? What other purpose might courts seek to serve in the sanctions it imposes?
   • Then consider the processHow does the "safe harbor" operate for parties seeking sanctions under 11(c)(2)? What were the problems with the sanctions motion in Roth? Did the procedural defects get the attorney off the hook for sanctions?

We then move to Responding to a Complaint: Motions, which looks at the first option for a defendant in responding to a Complaint. Do not worry about the waiver hypotheticals; we will do those for next week. But read all the assigned materials--in addition to the rules listed on the syllabus, please look at FRCP 3 and 4 (focusing on 4(a), (c), (e), (f), and (m)). Pay close attention the timing requirements in FRCP 12(a). Then figure out what each of the defenses are in FRCP 12(b). What does it mean for a claim to "fail to state a claim" under 12(b)(6)? What might be the difference between saying a claim is "legally defective" as opposed to "factually defective."

Finally, because it was asked after class: I will occasionally lecture on material in class that was not part of the reading, usually because the material involves side issues for which I do not want to impose additional reading.

For Wednesday--Section A

Monday audio.

We continue with Rule 11. How does the "safe harbor" operate for parties seeking sanctions? What were the problems with the sanctions motion in Roth? Did the procedural defects get the attorney off the hook for sanctions?

We then move to Responding to a Complaint: Motions, which looks at the first option for a defendant in responding to a Complaint. Do not worry about the waiver hypotheticals; we will do those for Friday. But read all the assigned materials--in addition to the rules listed, please look at FRCP 3 and 4. Pay close attention the timing requirements in FRCP 12(a), as well as the various defenses listed in 12(b).

Saturday, January 21, 2017

"simple, concise and direct" requirement FRCP 8(d)(1)

I found this blog post regarding the "simple, concise and direct" requirement for each allegation presented. Although it is a state case, Ohio Rule 8(E) also requires "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required" which has similar language to FRCP 8(d)(1) that requires "Each allegation must be simple, concise and direct. No technical form is required"


The problems according to the plaintiff included: “run-on sentences, multiple allegations in the same paragraph, conclusions, verbose exaggerations, and ‘stream of consciousness’ rhetoric.” 

The response is a gigantic run-on sentence found here:
http://abovethelaw.com/2017/01/lawyer-pens-incredible-brief-about-punctuation-chickens/2/?rf=1

Friday, January 20, 2017

Essay Assignments--Section C

There are eight (8) topics. Four (4) topics will have four (4) people writing, 4 topics will have three (3) people writing.

For some of the questions, I may split the group and have one group write on one side of the issue and the other group argue the other side.

Breakdown after the jump. 

Essay Assignments-Section A

There are eight (8) topics. Five topics will have seven (7) people writing, 3 topics will have six (6) people writing.

For some of the questions, I may split the group and have one group write on one side of the issue and the other group argue the other side.

If you do not see your number on here, double-check and make sure you have your number right, then go see the Registrar.

Breakdown after the jump.



For Monday-Section A

Friday audio.

We are now done with Joinder and turn on Rule 11 and Honesty in Pleading. Make sure you look at the assigned committee notes (from 1983 and 1993) and see how the Rule changed in 1993 and why. Read the current statute carefully to see how all the pieces fit together. In particular, understand the process for obtaining sanctions and the 11(c) "safe harbor." Why does the deterrence purpose of sanctions matter? What would be a different purpose behind sanctions and how might that affect the choice of sanctions.

Check the blog over the weekend for the list of essay assignments. The first essay will be distributed next Friday (January 27) and due the following Wednesday (February 1).

Finally, several people have asked about outlining. The Pleading portion of the course will take about 6 weeks. We necessarily are hitting pieces in a peculiar order, which we will pull together at the end, to show how the pieces fit and in what order. That is what your outline will be. In the meantime, keep reviewing your notes and be patient.

Wednesday, January 18, 2017

For Monday--Section C

Wednesday audio. Repeating what I said in class--I need to see more than the same six or seven hands looking to participate.

We will continue with, and finish, Joinder and the Smith hypothetical. Consider both sides on whether this claim can be joined to Morgan. Then look over FRCP 19, 24, and 42, which we will discuss as limits on the permissive nature of Joinder.


Then move on to Rule 11 and Honesty in Pleading, which we will begin and then pick-up in earnest next Monday. Make sure you look at the assigned committee notes (from 1983 and 1993) and see how the Rule changed in 1993 and why. Read the current statute carefully to see how all the pieces fit together. In particular, understand the process for obtaining sanctions. Why does the deterrence purpose of sanctions matter?

For those of you looking to read for the week in advance, we will get to Motions on Wednesday.

For Friday-Section A

Wednesday audio.

We continue with Joinder. Consider the two hypos we did not get to today:

1) Smith was in an accident on a different day on the NJ Turnpike with a truck driven by a different Walmart driver. Could he join the lawsuit in Morgan?

2) Mr. McCormick was drinking one evening at a bar owned by Huls. While driving home from the bar, he is killed when he is in an collision with a truck driven by Kopmann. Mrs. McCormick wants to bring a lawsuit with two claims:
   1) v. Huls for a violation of the Dram Shop Act (a statute imposing liability on a bar for injuries involving patrons who leave intoxicated)
   2) v. Kopmann for Negligence (in a state where the plaintiff must prove she was not contributorily negligent).

Can she bring both in a single action? What is the special joinder problem here? What is the risk if McCormick files two separate lawsuits?

Look over FRCP 19, 24, and 42, which we will discuss as limits on the permissive nature of Joinder.

Then move on to Rule 11 and Honesty in Pleading, which we will begin and then pick-up in earnest next Monday. Make sure you look at the assigned committee notes (from 1983 and 1993) and see how the Rule changed in 1993 and why.

Friday, January 13, 2017

For Wednesday -- Section A

Friday audio. We are getting great participation from about 10-15 people. I need to hear from more people during class discussions.

We continue with Joinder of Parties and Claims, where our focus will be on FRCP 18(a), 20(a), and 21 (although obviously read everything). What are the benefits and drawbacks to the sort of broad joinder created by these rules? Why are the different rules for joinder of claims under FRCP 18 as opposed to parties under FRCP 20.

Consider what role FRCP 18 and 20 are playing in each of our Complaints. Be ready to discuss whether the claims and parties in our Complaints all properly joined and why?

Consider the following additional hypos:

1) Imagine that Krista Millea has a products liability claim against Walmart over a defective appliance she purchased there. Can she bring that claim in this action? What if Krista only had the products claim and not the loss of consortium claim?

2) Imagine Smith was in an accident on a different day on the NJ Turnpike with a truck driven by a different Walmart driver. Could he join the lawsuit in Morgan?





3) A and B are a same-sex couple who want to marry and are denied a marriage license by X (the clerk of that county). H and J are a same-sex couple who want to marry and also are denied a marriage license by X. Can A, B, H, and J join together to sue X?

4) Mr. McCormick was drinking one evening at a bar owned by Huls. While driving home from the bar, he is killed when he is in an collision with a truck driven by Kopmann. Mrs. McCormick wants to bring a lawsuit with two claims:
   1) v. Huls for a violation of the Dram Shop Act (a statute imposing liability on a bar for injuries involving patrons who leave intoxicated)
   2) v. Kopmann for Negligence (in a state where the plaintiff must prove she was not contributorily negligent).

Thursday, January 12, 2017

For Wednesday (Section C)

Wednesday audio. Remember no class on Monday.

Review the remaining Complaints to see the structural breakdown and organization.

We then move to Joinder of Parties and Claims, where our focus will be on FRCP 18(a), 20(a), and 21 (although obviously read everything). What are the benefits and drawbacks to the sort of broad joinder created by these rules? What are the different rules for joinder of claims as opposed to parties?

Consider what role FRCP 18 and 20 are playing in each of our Complaints. Are the claims and parties in our Complaints all properly joined and why?

Consider the following additional hypos:

1) Imagine that Krista Millea has a products liability claim against Walmart over a defective appliance she purchased there. Can she bring that claim in this action?

2) Imagine Smith was in an accident on a different day on the NJ Turnpike with a truck driven by a Walmart driver. Could he join the lawsuit in Morgan?

3) Mr. McCormick was drinking one evening at a bar owned by Huls. While driving home from the bar, he is killed when he is in an collision with a truck driven by Kopmann. Mrs. McCormick wants to bring a lawsuit with two claims:
   1) v. Huls for a violation of the Dram Shop Act (a statute imposing liability on a bar for injuries involving patrons who leave intoxicated)
   2) v. Kopmann for Negligence (in a state where the plaintiff must prove she was not contributorily negligent).

Wednesday, January 11, 2017

Revised Syllabus (Both Sections)

I have posted a revised Syllabus (and at right). The original did not include revised page numbers reflecting the new edition of Leading Cases. My apologies for the confusion. Please discard the previous copy and download this for use throughout the semester.

For Friday-Section A

Wednesday audio. We are still meeting at 10:45 on Fridays.

Review the remaining Complaints; identify how many claims are in each, by whom, against whom, and for what legal right. Then examine the structure of each pleading in light of the requirements of FRCP 8 and 10--how does each comport with those rules and what decisions did the drafter make as to each? What is the purpose of a complaint, both from the standpoint of the judicial system and the plaintiff filing the complaint? How do each of these complaints reflect those purposes?

Then move to Pleading: Joinder of Parties and Claims. For Friday, focus on FRCP 18 and 20(a), then consider how those rules are in play in each of our pleadings and the way each plaintiff structured their case. Why the different treatment of joinder of parties compared with joinder of claims? Are the parties and claims properly joined in our cases?

Monday, January 9, 2017

For Wednesday--Section C

Monday audio. We will do the seating chart at the beginning of class. We will take a couple minutes at the beginning of class for questions on the syllabus and on grading.

We move to Pleading: Introduction to Pleading. Consider the concept of "transsubstantivity"--what does it mean (you can sound it out) and how does it apply to the FRCP?  Review all four complaints; understand the facts and law involved as well as how the case is structured in terms of parties involved and legal rights asserted. Note the structure and organization of the complaints in light of FRCP 10. What is the purpose of a complaint, both from the standpoint of the judicial system and the plaintiff filing the complaint? How do each of these complaints reflect those purposes?

Then move to Pleading: Joinder of Parties and Claims. Look at FRCP 18 and 20(a), then consider how those rules are in play in each of our pleadings.


For Wednesday-Section A

Monday audio. Very nice start to the semester; I like the high level of participation. Remember that name cards and the seating chart will be distributed on Wednesday.

We continue our Introduction to the class. Consider the second forms of jurisdiction--exclusive jurisdiction as opposed to concurrent jurisdiction. What is the difference? See § 1338. Review the Rules Enabling Act (§§ 2072-2074), along with the 2015 Annual Report, which provides an overview of the rulemaking process, and all the assigned Federal Rules.

We then move to Pleading: Introduction to Pleading. Review all four complaints; understand the facts and law involved as well as how the case is structured in terms of parties involved and legal rights asserted. Consider the concept of "transsubstantivity"--what does it mean (you can sound it out) and how does it apply to the FRCP?