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.