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