Monday, February 27, 2017

Sample Answer--Essay IV

Sample Answer after the jump. Essays can be picked up outside my office.

My conclusion is that Count I is compulsory and Count II permissive. But over the 10 essays, we got every combination in addition to mine: Both compulsory, both permissive, and Count I permissive and Count II compulsory.

Look to economize with your words. Instead of, "As FRCP 13(b) tells us, a permissive counterclaim is one that is not compulsory."  Instead, how about "A permissive counterclaim is one that is not compulsory. FRCP 13(b)"

And definitely keep yourself out of the argument. Not "I will argue ____" or "Next I will turn to Rule 13". Just argue ___.

Section A: Mean 17.7; Median 18
Section C: Mean 13; Median 15

Again, if you are at or below the mean or median on any of these (or even above it), please come see me.

For Wednesday--Section C

Monday audio.

Essay V is due at the beginning of class Wednesday. Make-up on Saturday morning, time and room TBD.

We continue with both parts of Discovery. Why impose the proportionality requirement? Think about how the exchange of discovery requests works. Think about how the different discovery devices operate and some logical order in which you might might employ different devices. How do the parties get the court into a dispute and what are the different motions that can be filed? How do parties enforce and resist discovery, how does the court become involved, and how do disputes get resolved? Consider not only the applicable rules, but also the discussion in Seattle Times. What are the consequences for ignoring discovery obligations?

Just read both sections of Discovery; we will not get to Summary Judgment until Saturday.

Then, be ready to discuss the following hypothetical, working through the arguments about discoverability, motions, and sanctions as attorney for both sides.

Coca-Cola Bottler ("Bottler") has a contract with Coca-Cola Co. ("Coke") to produce and bottle "Coca-Cola." The formula for that drink is the best-kept trade secret in American business; the written formula is kept in a safe at corporate headquarters and only two people at any one time have the combination. Under the contract, Bottler purchases the syrup for Coca-Cola at an agreed-upon price, mixes it with carbonated water, then bottles and ships it. Coke begins sending Bottler syrup for Diet Coke, but charges twice the contractual price.

Bottler sues for breach of contract, alleging that Coke is obligated to charge the same contract price for the Diet Coke syrup. During discovery, Bottler wants to obtain production or inspection of the formula for Coca-Cola. 


For Wednesday--Section A

Monday audio. Remember that we will do a double session (12:10-1:20) on Friday. Essay V due on Wednesday.

We continue with Discovery and the question that stumped everyone: If Tracy Morgan refuses to submit to a court-ordered physical exam (the only way for Wal Mart to rebut evidence from Morgan's doctor and medical records), he can be sanctioned in a number of ways, including having his complaint dismissed. But he cannot be held in contempt. Given the privacy concerns, why is that?

We then go back to the Bottler v. Coca Cola hypo, same sides. Work through the problem through each step of the dispute from where we left off--Bottler has served discovery requests, seeking production or inspection of the formula. What happens next and after that?

We then move to Summary Judgment: Standards and Procedures. For Adickes, read only the Intro and Part I of Justice Harlan's opinion. For Scott, be sure to watch the video, available from the Supreme Court web site (the link is on the blog). Break out the elements of FRCP 56, in connection with Celotex and Scott (note that the text, division, and numbering of FRCP 56 has changed since both cases, but the general principles remain the same).

Friday, February 24, 2017

Essay V (Due Wednesday, March1)

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John and Jane Doe 1--12 v. Palm Beach County School Board and John Roe

The twelve plaintiffs in this action include four African-American students in a public high school in Palm Beach County, Florida, along with their parents (two plaintiff parents for each student). The Complaint alleges that the students were physically and emotionally abused by a substitute teacher at the high school over a period of two weeks from November 2 to November 15, 2014. The abuse included striking the students during and outside class with his fist and with a paddle, locking them inside an overheated classroom for detention, and repeatedly taunting them and daring them to complaint about his behavior, challenging that no one would believe the word of a group of “delinquents” over him.

Wednesday, February 22, 2017

Essay IV (Due Monday, February 27)


Klein and JLA v. Goldsmith

Jonathan Goldsmith is a long-time working actor, primarily in commercials and television guest-spots. Beginning in early 2007, Goldsmith struck gold as the spokesman for Dos Equis beer, playing the “Most Interesting Man in the World.” A series of commercials showed Goldsmith engaging in all sorts of activities, with a voiceover offering statements demonstrating how interesting and awesome he is (“Socrates taught law school using his method”). Each ad closed with Goldsmith saying into the camera, “I don’t always drink beer. But when I do, I drink Dos Equis,” then urging viewers to “Stay Thirsty.” The commercials were pop-culture sensations; they spawned memes, won awards, helped fuel a 15% increase in Dos Equis sales, and made Goldsmith a well-known actor. In 2016, his final year playing the character, Goldsmith earned more than $ 1 million in royalties from the ads.

For Monday--Section A

Wednesday audio.

We start with Julio's question--can a party get information beyond 26(b)(1) by using a subpoena? How do parties enforce and resist discovery, how does the court become involved, and how do disputes get resolved? Consider not only the applicable rules, but also the discussion in Seattle Times. What are the consequences for ignoring discovery obligations.

Be ready to discuss all sides of this hypo:

Coca-Cola Bottler ("Bottler") has a contract with Coca-Cola Co. ("Coke") to produce and bottle "Coca-Cola." The formula for that drink is the best-kept trade secret in American business; the written formula is kept in a safe at corporate headquarters and only two people at any one time have the combination. Under the contract, Bottler purchases the syrup for Coca-Cola at an agreed-upon price, mixes it with carbonated water, then bottles and ships it. Coke begins sending Bottler syrup for Diet Coke, but charges twice the contractual price.
Bottler sues for breach of contract, alleging that Coke is obligated to charge the same contract price for the Diet Coke syrup. During discovery, Bottler wants to obtain production or inspection of the formula for Coca-Cola. 


We should finish Discovery on Monday (or at worst a bit on Wednesday), then move to Summary Judgment.

Monday, February 20, 2017

Essay III--Sample Answer

Sample answer after the jump.

Several things to keep in mind in writing these (or any other) essays. First, focus on the question asked and do the analysis relevant to that. If you are asked about an affirmative defense, don't talk about counterclaims. There is no need to survey everything about pleading (such as time limits or defaults), just go to what you are asked to analyze. Second, it is not enough to throw out a bunch of rules--you need to apply them to the facts at hand. This question asked you to explain how each procedural approach might work, which required some application. Third, it is obvious from many answers that the writers are working from their class notes (and what they may or may not have heard correctly in class), rather than going to the primary source of the text of the rules. Fourth, key terms always should be defined. Here, for example, you should explain what an affirmative defense is (we discussed a good definition in class and on the blog).

Section A: Median 11.5; Mean 13.3
Section C: Median: 10; Mean: 8.7

For Monday--Section C

Monday audio.

No class on Wednesday; make-up on Saturday, March 4, time TBD.

Essay IV posted on Wednesday and due on Monday, February 27. Essay V posted on Friday and due on Wednesday, March 1.

On Monday, we continue with Relation Back, with a careful focus on Krupski and the Court's understanding of mistake? What is a mistake? Was there a mistake in Krupski? And should Krupski change the analysis in Doe cases, such as Smith. What about the plaintiff's delay in amending in Krupski--how does that affect the relation back analysis?

This will complete our discussion of Pleadings. So move on to Managerial Judging and the first two parts of Discovery, Introduction and Discovery Process. What are the standards for discoverability? Think about how the exchange of discovery requests work. Think about how the different discovery devices operate and some logical order in which you might might employ different devices. How do the parties get the court into a dispute and what are the different motions that can be filed.

Flow Chart - Open to suggestions.

Essay II Scores

Section A: Median 18; Mean 17.6

Section C: Median 18; Mean 18

For Wednesday--Section A

Monday audio.

Remember for this week: No class on Friday. Essay IV posted Wednesday, due next Monday. Essay V posted Friday, due next Wednesday.

We continue with Discovery, so be sure to read Discovery Process and Enforcing and Avoiding Discovery Obligations. Think about how the exchange of discovery requests work. Think about how the different discovery devices operate and some logical order in which you might might employ different devices. How do the parties get the court into a dispute and what are the different motions that can be filed.

Be prepared to argue both sides and all issues with respect to the following.


Coca-Cola Bottler ("Bottler") has a contract with Coca-Cola Co. ("Coke") to produce and bottle "Coca-Cola." The formula for that drink is the best-kept trade secret in American business; the written formula is kept in a safe at corporate headquarters and only two people at any one time have the combination. Under the contract, Bottler purchases the syrup for Coca-Cola at an agreed-upon price, mixes it with carbonated water, then bottles and ships it. Coke begins sending Bottler syrup for Diet Coke, but charges twice the contractual price.

Bottler sues for breach of contract, alleging that Coke is obligated to charge the same contract price for the Diet Coke syrup. During discovery, Bottler wants to obtain production or inspection of the formula for Coca-Cola.

Friday, February 17, 2017

For Monday--Section A

Friday audio. Nice job in front of a big audience today.

Essay III will be due on Wednesday Monday. Essay IV will be posted on Wednesday and due on Monday, February 27. Essay V will be posted on Friday (when, remember, we do not have class) and due on Wednesday, March 1.

On Monday, we continue with Relation Back, the last piece of Amending Pleadings (and the last piece of the Pleading section). Starting with Krupski, what else will the court look to in determining whether a party made a mistake concerning identity? What did the Court do with the fact that Krupski waited several months to seek leave to amend--how does that affect relation back and how does it affect whether leave to amend should be granted? Why did the Smith Court not allow relation back? Is there a reading of Krupski that suggests the claims should have related back?

This then brings us to the end of Pleading. You now have a complete flowchart to use to organize your notes and outlines and to see how the pieces fit together.

We then turn to Managerial Judging, focusing on FRCP 16 and FRCP 26(f), along with the two recent Annual Reports. Consider the benefits and drawbacks to a focus on settlement?

We then start Discovery: Introduction to Discovery. With respect to FRCP 26, focus attention on FRCP 26(a)(1), 26(b)(1)-(2), 26(c), 26(d), and 26(f). How is pre-trial discovery consistent with and inconsistent with having an adversary system? How does adverseness affect the discovery process? What is the point of disclosure and what evidence must be disclosed? What evidence is generally discoverable?

Federal Bar Association Programs

This is information on a series of programs sponsored by the FIU COL chapter of the Federal Association. The focus is on federal discovery, so it fits right in with what we are about to get into in the class.

The next program is 5:30 p.m. on Tuesday, February 22, with three more to follow in March. I encourage everyone to attend, both to learn some things about discovery and as a networking opportunity.

Wednesday, February 15, 2017

Sample Answer--Essay II

West Bend Insurance Company’s (“West Bend”) complaint is factually sufficient and satisfies the pleading requirements of FRCP 8(a). The motion to dismiss for failure to state a claim is denied.

A motion to dismiss for failure to state a claim tests the legal and factual sufficiency of a pleading stating a claim for relief. FRCP 12(b)(6). The pleading must comport with FRCP 8(a)(2), requiring a “short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint must provide the defendant with “fair notice of the claim and the grounds upon which it rests.” Twombly; Conley. In deciding a motion to dismiss, the court reviews the four corners of the complaint, including any written instruments attached to the complaint and made a part of t, pursuant to FRCP 10(c).

For Monday--Section C

The material covered in this evening's class was covered on Monday and the first part of Wednesday in Section A; audio can be found there.

On Monday, we continue with Amending Pleadings. What are the reasons identified in Foman for denying leave to amend and what do they mean? How does the concept of leave to amend under FRCP 15(a)(2) interact with dismissals with and without prejudice? What does it mean for an amendment to be futile and how does that issue get raised and argued in court?  How can the court determine whether a proposed amended pleading would be futile, if futility means the claim(s) in the pleading would not survive a 12(b) motion to dismiss? Think about futility and arguments about futility in the following situations:
   1) Jones v. Ford Motor: D's Answer does not include any counterclaims. It now seeks leave to amend the Answer to add the counterclaim for non-payment.
   2) Stanard: P seeks leave to amend his complaint one more time

How does the statute of limitations play into futility? Consider what would happen if Zielinski moved to amend to add CCI as a defendant. Why do we have statutes of limitations--what are their purposes? Review FRCP 15(c); try to work out how and when relation back arises, what it means, and what the rule requires. Pay particular attention to the meaning of "mistake" in FRCP 15(c)(1)(C)(ii).

Finally, read the section on Managerial Judging, focusing on FRCP 16, as well as the annual reports.

Essay III


Zervos v. Trump

A Complaint was filed in Zervos v. Trump. (For purposes of this problem, treat the action as having been filed in Federal District Court and being governed by the Federal Rules of Civil Procedure).

You are counsel for President Trump. You believe he has a meritorious defense of “Presidential Temporal Immunity,” which provides that a “sitting President” cannot be made to litigate or defend a civil action while in office, even where the civil action arises from conduct that occurred prior to his presidency or is unrelated to his official presidential duties. The defense originates and is grounded in constitutional principles of separation of powers and the fact that the President wields the executive power under the Constitution. If the defense applies, the trial court must dismiss the action without prejudice, giving the plaintiff leave to refile when the President leaves office (any statute of limitations stops running during this period). It is not clear that the defense exists as a matter of substantive constitutional law; it has never been established by the Supreme Court of the United States, but there is room for legal argument on the issue.

As counsel for the President, discuss the different procedural mechanisms and strategies through which you could raise this defense and get the district court to immediately rule on it. Discuss which approaches will or will not work in this case and why.

For Friday--Section A

Wednesday audio. Essay III will be posted in ten minutes and due next Monday. Essay IV will be posted on Friday afternoon, due on Wednesday, February 22. Essay V will be posted on Friday, February 24 and due on Wednesday, March 1.

Remember we are in RDB 2008 on Friday.

We pick up with the question we left-off on: How can the court determine whether a proposed amended pleading would be futile, if futility means the claim(s) in the pleading would not survive a 12(b) motion to dismiss? Think about futility and arguments about futility in the following situations:
   1) Jones v. Ford Motor: D's Answer does not include any counterclaims. It now seeks leave to amend the Answer to add the counterclaim for non-payment.
   2) Stanard: P seeks leave to amend his complaint one more time

How does the statute of limitations play into futility? Consider what would happen if Zielinski moved to amend to add CCI as a defendant. Why do we have statutes of limitations--what are their purposes? Review FRCP 15(c); try to work out how and when relation back arises, what it means, and what the rule requires.

Still more on consent

The problem is that the plaintiff did not only allege harmful conduct, she also alleged lack of consent. Which she had to do, because assault and sexual battery both include lack of consent as elements of the claim to be pled and proven. Consent cannot be an affirmative defense (new matter, admitting facts in prior pleading, show cause why they should not have their ordinary effect), since lack of consent was pled in the original pleading. A defendant cannot say "yes, lack of consent (which was pled in the prior pleading), but she consented."

It can be tricky figuring out whether something is a failure-of-proof defense or an affirmative defense. It ties back to the applicable substantive law and how it defines the cause of action, but it is not always clear. So take a simple example of defamation:
 
    1) Defamation means "D made false and harmful statements about P, causing injury"--The elements are falsehood, harmfulness, and injury, to be pled and proven by P.
    2) Defamation means "D made harmful statements about P, causing injury"--the elements are harmfulness and injury. Truth is an affirmative defense, to be pled and proven by D.

In First Amendment defamation cases, substantive law adopts # 1. In private defamation, substantive law adopts # 2. Either one could make sense.

So here, consent is in the same position as truth/falsity. But the plaintiff pled her claims as if lack of consent were an element. Which seems right--otherwise any touching would presumptively be a tort, unless defendant could prove consent.


More on Consent

Responding to Katarina's post on consent.

By asserting a defense of consent the defendant would be stating that the allegation was true so far as there was harmful or offensive contact (or whatever the allegation), but that the plaintiff consented to the contact so there is no liability.

I think you would still assert this defense, but I imagine a defendant would want to assert it in the alternative.

First, deny the allegation regarding the harmful or offensive contact (or whatever), as was done in Kinsman. Then, in the alternative, that to the extent there was any contact at all, that the plaintiff consented to the contact.

This would be consistent with FRCP 8(d)(2)/(3).

Tuesday, February 14, 2017

Affirmative Defenses under 12(b)(6) and 12(c)

A point of clarification on affirmative defenses decided through 12(b)(6) and 12(c).

The motion will not automatically be granted, even if the facts are undisputed. Rather, the motion tees-up for the court to decide the legal issue of whether the defense, on the undisputed or taken-as-true facts, has been established. The undisputed facts set up the court's legal analysis of some question, from which it then determines liability or not.

Take the statute of limitations example. If the date of the events appears in the complaint, the defendant can file a 12(b)(6); the court will take that fact as true, then resolve the legal issues of what the limitations period is (not always an obvious question) and whether it has run or not. If she decides it has run on these undisputed facts, she grants the motion; if she decides it has not run, she denies the motion. Similarly, if the defendant pleads the date in the answer and the plaintiff admits the date in the Reply to the Answer, the court on the 12(c) now takes the undisputed fact and resolves the legal issues of what the limitations period is and whether it has run or not. Again, if she decides it has run on these undisputed facts, she grants the motion; if she decides it has not run, she denies the motion.

The point is that when there is a factual dispute, a case must proceed (the motion denied) because only the fact-finder can resolve factual disputes (or, at the very least, we must get beyond the pleadings and allegations and into evidence). Absent the factual dispute, there is nothing for the jury to do. But the court still must analyze the legal question (that, recall, is the point of a motion--to give the district court the opportunity to analyze and resolve the legal issue).

Monday, February 13, 2017

For Wednesday--Section C

Monday audio.

We continue with additional claims on Wednesday. Try to figure out what all the remaining claims are in Holmes and whether the applicable rule is satisfied as to each. How does the S/T/O standard apply in each of these claims. Work through all the "downstream" claims in FRCP 14, especially 14(a)(2), which shows what the third-party defendant can do in response to being dragged into the case. With respect to the claims between Clear Code and Cosgrove, consider: What is the difference between a counterclaim and cross claim, how do you know when something is one or the other, and why does it matter? Also, consider the role that FRCP 18(a) may play in all this (with respect to Cosgrove's claims and Jasper's claims against Holmes).

We then turn to Amending Pleadings, which means starting over at some point in that flowchart. Review FRCP 15(a)(1) and the two distinct timelines, which we discussed when covering the disfavored 12(b) defenses. What might a party do in amending a pleading? What are the reasons identified in Foman for denying leave to amend and what do they mean? How does the concept of leave to amend under FRCP 15(a)(2) interact with dismissals with and without prejudice? What does it mean for an amendment to be futile and how does that issue get raised and argued in court?

Consent

After today's class, Professor Wasserman and I briefly discussed "consent" as an affirmative defense and the way the defendant's attorney used consent as an affirmative defense in Kinsman.

The second affirmative defense listed in Kinsman (p. 40) states that, "Plaintiff consented to and was a willing participant in the acts alleged and her claims are barred by consent." If you then go to back to p. 35 and read Count 1 - Sexual Battery, Paragraph 49, you will see that the plaintiff was alleging that, "Without privilege or consent, Defendant intentionally caused offensive and harmful contacts with Plaintiff's person by removing Plaintiff's clothing, holding Plaintiff down, and forcibly raping Plaintiff ...."

Now what is interesting is that consent (or actually a lack of it) may itself go into the elements of battery. Since underlying wrong in battery is harmful or offensive conduct (and yes, there must be an intent), if there was consent in the first place, then technically it should not be a battery at all because consent would negate the harmful or offensive contact.

Therefore, if we think about consent in the above way, the counsel should have not used consent as an  affirmative defense (yes, but consent), but should have gone with failure/proof option.


Question for Review--Section A

We did not have time to discuss this in class, but consider: Are the counterclaims in Kinsman compulsory or permissive?

For Wednesday--Section A

Monday audio. Essay II due at the beginning of class Wednesday. Essay III will be posted on Wednesday afternoon and due on Monday, February 20. Essay IV will be posted on Friday afternoon and due on Wednesday, February 22.

We will begin on Wednesday by walking through the Responsive Pleading piece of the pleading flowchart (which someone photographed from today). You can then combine that piece with our earlier walk-through of Complaints and Motions, to form a full flowchart.

We then turn to Amending Pleadings, which means starting over at some point in that flowchart. Review FRCP 15(a)(1) and the two distinct timelines, which we discussed when covering the disfavored 12(b) defenses. What might a party do in amending a pleading? What are the reasons identified in Foman for denying leave to amend and what do they mean? How does the concept of leave to amend under FRCP 15(a)(2) interact with dismissals with and without prejudice? What does it mean for an amendment to be futile and how does that issue get raised and argued in court?

Temporary Restraining Orders - Unappealable? (Answered)

Professor,

You mentioned that TROs are not appealable, but that preliminary injunctions are.

I realize some of this crosses into appellate procedure, but I'm guessing that TROs are not appealable because they are not final orders of the court.

So how does that differ from a preliminary injunction? "Preliminary" sounds not final, either.

Under 28 U.S.C. § 1292(a), the court of appeals has jurisdiction to review an interlocutory (non-final) order "granting, continuing, modifying, refusing or dissolving injunctions." But because a TRO is not an injunction, § 1292(a) does not permit review.

We get into this in-depth in Federal Courts.

February 13 Class Flowchart. Section A



February 13th flowchart. I apologize about the layout, not sure how to rotate the image. 

Saturday, February 11, 2017

Friday, February 10, 2017

Essay II


West Bend Mutual Ins. Co. v. Roddy, Leahy, Gull & Zima and Paul Schumacher

West Bend Mutual Insurance Co. v. Roddy, Leahy, Gull, & Zima is a legal malpractice action, filed in federal district court. The plaintiff, an insurance company, has sued Paul Schumacher ("Schumacher"), its former lawyer, and Schumacher’s law firm, Roddy, Leahy, Gull & Zima (“RLGZ”). West Bend alleges that defendants committed malpractice in defending it in a prior workers’ compensation case, causing it to have to pay on a claim brought by the injured employee of one of the companies West Bend insured.

The controlling pleading is the Second Amended Complaint.

Applicable substantive law provides that a claim for legal malpractice includes the following elements:

(1) the existence of an attorneyclient relationship that establishes a duty on the part of the attorney, (2) a negligent act or omission constituting a breach of that duty, (3) proximate cause of injury, and (4) actual damages.

Courts have described the legal malpractice cause of action as following a casewithinacase model:

A legal malpractice suit is by its nature dependent upon a predicate lawsuit. Thus, a legal malpractice claim presents a case within a case. [N]o malpractice exists unless counsel’s negligence has resulted in the loss of an underlying cause of action, or the loss of a meritorious defense if the attorney was defending in the underlying cause of action.

To prevail on a legal malpractice claim, a plaintiff must prove that the defendant breached a duty, that the breach caused the plaintiff to lose a valid claim or defense in the underlying action, and that, absent that loss of a valid claim or defense, the underlying claim or defense would have been successful. In effect, a legal malpractice plaintiff must present and prove two cases—one showing that her attorney performed negligently and a second (the “predicate,” “underlying,” or “case within the case”) showing the plaintiff had a meritorious claim or defense in the underlying action that she lost because of counsel’s negligence.

Defendants move to dismiss all claims in the Second Amended Complaint for failure to state a claim upon which relief can be granted. As the Federal District Judge hearing the case, decide defendant’s motion.

[Note: In your answer, you can and should cite to relevant allegations, by paragraph number, from the Second Amended Complaint]

For Monday--Section A

Friday audio. Essay II about to be posted. Someone please post photos of the flowchart and Holmes to blog.

We continue with additional claims on Monday. Try to figure out what all the remaining claims are in Holmes and whether the applicable rule is satisfied as to each. How does the S/T/O standard apply in each. Work through all the "downstream" claims in FRCP 14, especially 14(a)(2), which shows what the third-party defendant can do in response to being dragged into the case.

We will start with the policy questions we left-off on: Why allow unrelated counterclaims? Why allow only unrelated crossclaims and impleader? Why not require any crossclaims or impleader?

Thursday, February 9, 2017

Procedure matters

Order from the Ninth Circuit denying stay pending appeal.

Recognize something important, however. For all the talk in the media about the "massive blow" to the President's immigration ban and "rebuff" of the President, consider what was actually at stake in today's decision--a motion by the government to stay the district court's order (that prohibited enforcement of the immigration order until it could hold a hearing) and allow the President's travel ban to be enforced while further, comprehensive litigation proceeded in the court of appeals. By denying the stay, all the Ninth Circuit was doing was establishing the status quo of non-enforcement of the travel ban until the judicial system as a whole (including all appeals) resolves the merits of the constitutional questions raised. In other words, all of this for a narrow procedural issue. There is still much briefing and arguing ahead over the main issue of the EO's constitutionality.

On the other hand, if you read the first part of the opinion, you will see some procedural sleight of hand. The court of appeals took a Temporary Restraining Order, which is not supposed to be appealable, treated it as a Preliminary Injunction, which is appealable, and asserted appellate jurisdiction. This pulled the case from the trial court, even though the trial court never held a full evidentiary hearing and never performed a comprehensive constitutional analysis.

Pleading as Press Release

Actual paragraph from the complaint in a lawsuit brought against the actor who formerly portrayed the Dos Equis "Most Interesting Man in the World" by his former agent, alleging non-payment of commissions. The Complaint contains the following allegations:

"There is nothing interesting about being a deadbeat or failing to pay those directly responsible for one's career success."

"As it now turns out, had Goldsmith landed a role that more accurately portray[ed] his true character, he would have landed the role of 'The Least Honorable Man in the Entertainment Business.'"

Why would the plaintiff do this? Is it a good idea? Necessary? Appropriate?

Picture of Board from Wednesday 2/8 Class


Wednesday, February 8, 2017

For Monday--Section C

Wednesday audio.

Essay II will be posted on Friday afternoon and due at the beginning of class on Wednesday, February 15. Essay III will be posted on Wednesday, February 15 and due at the beginning of class on Monday, February 20.

On Friday, we continue with Affirmative Defenses. What facts are necessary to the affirmative defenses in 8(c)? What is required of the defendant in pleading those facts? What is the connection between 12(b)(6) and the affirmative defenses enumerated in FRCP 8(c) and when can a 12(b)(6) motion (pre-answer) be used to get the court to rule on an 8(c) defense? Think about this with a statute of limitations defense--the plaintiff files 3 years after the accident, there is a 2-year limitations period; how can the defendant raise the defense? One of the affirmative defenses in Kinsman is Consent (2d Def). Looking at the allegations in the complaint for the sexual batter claim, is consent an affirmative defense?

We then turn to New Claims, the last element of Responsive Pleadings. Read the remaining assigned rules. In addition to the ones listed, go back and review FRCP 18(a) and FRCP 20. Note the familiar definition of same transaction or occurrence in Jones (note which parts of that case to read). Then consider the following hypo, which is based on the problem on pp. 255-57 in Glannon; think bout what type of claim each might be, whether it can be brought under the applicable rules, and how it may be raised.  Try to chart it out as Glannon does; we will do the same in class.

Holmes and Clear Code entered into a contract, under which Clear Code would provide litigation software for Holmes. Holmes negotiated the contract with Cosgrove, Clear Code's president at the time. This is the second time Holmes and CC have done business; CC provided a different software project three years ago, although Holmes has not fully paid for it. CC hires Jasper to write the code for the program; he does so on a computer he rented from High Tech. This is the third time CC has hired Jasper to write code for it.

Holmes was displeased with the final product, which he insists never worked, and refused to pay. Clear Code, in turn, refuses to pay Jasper. Following this dispute, Clear Code dismissed Cosgrove as president, a firing Cosgrove believes was wrongful. Cosgrove begins working for All-Code, a competing software developer, in violation of a non-compete clause.

Litigation ensue with the following claims:

Holmes against Clear Code for the defective computer program
Holmes against Cosgrove for fraud in inducing him to the contract.
Clear Code against Holmes for non-payment on this project
Clear Code against Holmes for non-payment on the previous project
Cosgrove against Clear Code for wrongful termination.
Cosgrove against Clear Code to indemnify him (pay any judgment) for any judgment Holmes may win against him
Clear Code against its insurer to indemnify it against any judgment Holmes gets against it.
Clear Code against Cosgrove for violating his non-compete
Clear Code against Jasper for contribution, for his part in making the defective program
Jasper against High Tech for negligence in providing a defective computer
Jasper against Clear Code for non-payment on this project
Japser against Clear Code for non-payment on a previous project.
Jasper against Holmes for Quantum Meruit.
Jasper against Holmes for defamation, based on statements Holmes made about the work product after he filed the lawsuit.
Holmes against Jasper for tortious interference

For Friday--Section A

Wednesday audio. Essay II will be posted on Friday afternoon and due on Wednesday, February 15. Essay III will be posted on Wednesday, February 15 and due on Monday, February 20.

Here is the photo of the board from Monday, containing the outline/flowchart for the Complaint and the Pre-Answer motion.

Also, on Friday, February 17 (a week from this Friday), the school is hosting a program for admitted students (many of you were on the other end of this last year). They will be sitting in on our class, which will be held in RDB 2008 to accommodate them. Please be sure on that day you are here on time and especially well-prepared and participatory.

On Friday, we continue with Affirmative Defenses, beginning where we left off on whether Twiqbal should apply to pleading facts for affirmative defenses. What is the connection between 12(b)(6) and the affirmative defenses enumerated in FRCP 8(c) and when can a 12(b)(6) motion be used to get the court to rule on an 8(c) defense? Think about this with a statute of limitations defense--the plaintiff files 3 years after the accident, there is a 2-year limitations period; how can the defendant raise the defense? One of the affirmative defenses in Kinsman is Consent (2d Def). Looking at the allegations in the complaint for the sexual batter claim, is consent an affirmative defense?

We then turn to New Claims, the last element of Responsive Pleadings. Read the remaining assigned rules. In addition to the ones listed, go back and review FRCP 18(a) and FRCP 20. Note the familiar definition of same transaction or occurrence in Jones (note which parts of that case to read). Then consider the following hypo, which is based on the problem on pp. 255-57 in Glannon; think bout what type of claim each might be, whether it can be brought under the applicable rules, and how it may be raised.  Try to chart it out as Glannon does; we will do the same in class.

Holmes and Clear Code entered into a contract, under which Clear Code would provide litigation software for Holmes. Holmes negotiated the contract with Cosgrove, Clear Code's president at the time. This is the second time Holmes and CC have done business; CC provided a different software project three years ago, although Holmes has not fully paid for it. CC hires Jasper to write the code for the program; he does so on a computer he rented from High Tech. This is the third time CC has hired Jasper to write code for it.

Holmes was displeased with the final product, which he insists never worked, and refused to pay. Clear Code, in turn, refuses to pay Jasper. Following this dispute, Clear Code dismissed Cosgrove as president, a firing Cosgrove believes was wrongful. Cosgrove begins working for All-Code, a competing software developer, in violation of a non-compete clause.

Litigation ensue with the following claims:

Holmes against Clear Code for the defective computer program
Holmes against Cosgrove for fraud in inducing him to the contract.
Clear Code against Holmes for non-payment on this project
Clear Code against Holmes for non-payment on the previous project
Cosgrove against Clear Code for wrongful termination.
Cosgrove against Clear Code to indemnify him (pay any judgment) for any judgment Holmes may win against him
Clear Code against its insurer to indemnify it against any judgment Holmes gets against it.
Clear Code against Cosgrove for violating his non-compete
Clear Code against Jasper for contribution, for his part in making the defective program
Jasper against High Tech for negligence in providing a defective computer
Jasper against Clear Code for non-payment on this project
Japser against Clear Code for non-payment on a previous project.
Jasper against Holmes for Quantum Meruit.
Jasper against Holmes for defamation, based on statements Holmes made about the work product after he filed the lawsuit.
Holmes against Jasper for tortious interference
 

Drafting Complaints in the Post-Iqbal World

Drafting Complaints in the Post-Iqbal World

Tuesday, February 7, 2017

Regarding our recent discussion of plausible pleading and the fact that legal allegations are not presumed to be true:

I have discovered one "bald allegation" that would, actually, also be given the same presumption of truth as factual assertions. Any guesses as to what that might be?

Monday, February 6, 2017

For Wednesday--Section C

Wednesday audio.

We will spend a final few minutes on Twiqbal, beginning where we left off--if Twombly and Iqbal set the pleading standing in light of the unique contexts of those complex cases, how might that affect how lower courts apply the standard in other cases? Read Johnson v. City of Shelby, as an example of the Court's approach to Twiqbal since those two cases were decided.

We then turn to Answers, Affirmative Defenses, and Additional Claims, focusing on the second responsive option., We fill focus on the first two elements of an Answer--failure-of-proof defenses and affirmative defenses. Prepare FRCP 8(b) and (c), FRCP 12(b), (c), and (f), along with King Vision and Zielinski. Review the first portion of the Kinsman Answer and see the different responses the defense uses. What is the strategy in King Vision when the response is improper? Why was the the defendant's response to ¶ 5 improper in Zielinski?

A court defined an affirmative defense as "allegations or statements of new matter, in opposition to a former pleading which, admitting facts in such former pleading, shows cause why they should not have their ordinary legal effect. Under that standard, evaluate the affirmative defenses in Kinsman. What is necessary to plead an affirmative defense and why? Through what procedures can a defendant raise and get a court to act on an affirmative defense?

For Wednesday--Section A

Monday audio.

We continue with Answers, focusing on the first two elements of an Answer--failure-of-proof defenses and affirmative defenses. Prepare FRCP 8(b) and (c), FRCP 12(b), (c), and (f), along with King Vision and Zielinski. Review the first portion of the Kinsman Answer and see the different responses the defense uses. What is the strategy in King Vision when the response is improper? Why was the the defendant's response to ¶ 5 improper in Zielinski?

A court defined an affirmative defense as "allegations or statements of new matter, in opposition to a former pleading which, admitting facts in such former pleading, shows cause why they should not have their ordinary legal effect. Under that standard, evaluate the affirmative defenses in Kinsman. What is necessary to plead an affirmative defense and why? Through what procedures can a defendant raise and get a court to act on an affirmative defense?

FRCP Form 18 is dead

The Judicial Conference of the United States eliminated Form 18, which was originally written in 1938, used for patent infringement, because not enough facts were needed to create a complaint and led to abuse. The high cost of the discovery process made many defendants settle even frivolous patent suits before discovery. Now, parties that sue for patent infringement are held to a higher standard (plaintiffs have to allege more facts and cannot list multiple defendants). Hopefully, this will decrease the number of frivolous patent infringement cases.

http://www.ipwatchdog.com/2016/10/07/frcp-form-18-not-sufficient-plead-patent-infringement/id=73589/


Saturday, February 4, 2017

FRCP Rule 24 Making Headlines

Commonwealth of Virginia filed a motion to intervene as plaintiff in Aziz v. Trump. The motion applies both 24(a) and 24(b), found here.

Aziz v. Trump info found here. Plaintiffs argue that Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States,” signed by President Donald J. Trump on January 27, 2017, infringed on several of platinffs' constitutional rights. Plaintiffs sought a temporary restraining order to compel the defendants to allow them access to counsel and to prohibit the defendants from deporting them for seven days.

Friday, February 3, 2017

Sample Answer for Essay I

The sample answer is after the jump. This is a model of how I want you to do the analysis, not necessarily the conclusion I was expecting or wanting. But do note how I answered and how I would like to see you approach: 1) Full rule, beginning with statutory text, then its elaboration and interpretation, leaving no open words or terms unexplained; 2) Application of that rule to the facts, getting specific about the facts supporting my conclusionand always explaining "why" for any legal or factual conclusion.

Some common mistakes/problems:

1) Too conclusory, either in explanation of the rule (leaving terms or concepts undefined or unexplained or not getting into the reasons and policies behind the rule) or in application (not explaining what question of law or fact was common and why it would be common in both actions). Because you have the space, I want to see a more-detailed rule analysis than you might, for example, do on a short answer.

2) Case analogies for no reason. If you are going to analogize to a case, you have to explain why that case suggests anything about this case. Several people analogized to Morgan, without explaining why Morgan is similar to this case (hint: I am not sure it is). Analogous cases must be analogous in some meaningful way, where those similarities matter. Otherwise, in an assignment this short where you are operating on general principles and have not done a ton of case research, don't bother.

3) A question of law for 20(a)(1)(B) or (a)(2)(B) purposes is the legal rule or standard or issue. Whether both statements were defamatory is not a question of law. The common question of law is defamation law, which applies to both cases.

4) Similarly, the truth of the allegations (whether Trump committed sexual assault) cannot be a common question of fact because the answer to one has nothing to do with the other.

5) Several of you argued that both sexual assaults were the same transaction or occurrence or that "wrongdoing" by the defendant created S/T/O. Without more, that can't be right--it would be even broader than Smith in the separate accident with a Wal Mart driver.

Finally, because people have asked:

Section A: Mean was 15.1; Median was 15

Section C: Mean was 12.3; Median was 13

Note that no letter grade is assigned. I do not assign letter grades until I calculate everything at the end of the semester and curve it.

For Monday--Section A

Friday audio. Essay I available outside my office. Essay II will be distributed next Friday (2/10) and due on Wednesday (2/15).

We continue with Twiqbal. Why were the non-conclusory allegations (about the disparate racial/religious/nationality impact) in Iqbal not sufficient? Be ready to analyze the sufficiency of our sample complaints. What is the argument that there is something unique about Twombly and Iqbal, that required a slightly different pleading analysis? What does Johnson say about the stringency of Twiqbal?

We then should move on to Answers and Affirmative Defenses. For Monday, prepare FRCP 8(b) and (c) and FRCP 12(b) and (c), and Zielinski. Look at the Answer in Kinsman v. Winston (posted to the blog--disregard Spooner).


Thursday, February 2, 2017

Interesting SCOTUS discussion of Bankruptcy Rule 9011, which is similar to FRCP Rule 11.

http://www.scotusblog.com/2017/01/argument-analysis-justices-appear-divided-treatment-stale-claims-consumer-bankruptcies/

Wednesday, February 1, 2017

For Monday--Section C

Wednesday audio.

We continue with Twiqbal. Look at the 2015 and 2016 Year-End Reports from Chief Justice Roberts and what they say about district judges and their roles in managing litigation. Is there another way, besides raising the pleading bar, to control the cost, burden, and expense of discovery--and how does that relate to the Chief's description of the work district judges do? What is the analysis that Iqbal requires? What does "plausible" mean and how should courts figure it out? Be ready to discuss the sufficiency (or insufficiency) of the complaints in Iqbal, Twombly, Johnson, and all four of our sample complaints. What is good strategy for defendants now?

This will take us through Wednesday Monday and into Wednesday. If you are looking to read ahead to Wednesday, focus just on defenses and affirmative defenses. So prepare FRCP 4 (current verison) 8(b) and (c), FRCP 12(a), (b), and (c), Zielinski, and this answer in Kinsman v. Winston.

For Friday--Section A

Wednesday audio.

We continue with Twiqbal. Look at the 2015 and 2016 Year-End Reports from Chief Justice Roberts and what they say about district judges and their roles in managing litigation. Is there another way, besides raising the pleading bar, to control the cost, burden, and expense of discovery--and how does that relate to the Chief's description of the work district judges do? What is the analysis that Iqbal requires? What does "plausible" mean and how should courts figure it out? Be ready to discuss the sufficiency (or insufficiency) of the complaints in Iqbal, Twombly, and all four of our sample complaints.