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?

Monday, March 6, 2017

For Monday after break--Section C

Monday audio.

Read/review both sections of Summary Judgment prior to class on Monday, March 20. Review your notes on how burdens link with the mechanisms of FRCP and 56 and what must be done depending on who is the moving party.

For class on the 20th, consider:

What does the evidence look like on summary judgment and consider how it can be used at summary trial or trial in both Adickes and Celotex. How much evidence is necessary to create a genuine dispute? How does the legal standard play into this (consider Sitzes and Justice Ginsburg's concurring opinion in Scott)? Break down the facts and evidence in Sitzes. How did the standard the court adopted (subjective intent to harm) affect the summary judgment analysis? If intent is the material fact, what were the key basic facts? What did the evidence in the record show and how did it go (or not) to subjective intent? Then look at Young and see how employment discrimination claims, which include burden-shifting, work on summary judgment. Look at the Seventh Amendment to the Constitution and consider how that might interest with summary judgment--is S/J constitutional?

The Preliminary Exam will be posted on Monday, March 20 and due at the beginning of class on Monday, March 27. It will be five (5) short-answer questions, worthfour points each.

For Wednesday--Section A

Monday audio.

We continue with Sitzes. How did the standard the court adopted (subjective intent to harm) affect the summary judgment analysis? If intent is the material fact, what were the key basic facts? What did the evidence in the record show and how did it go (or not) to subjective intent? Then look at Young and see how employment discrimination claims, which include burden-shifting, work on summary judgment. Look at the Seventh Amendment to the Constitution and consider how that might interest with summary judgment--is S/J constitutional?

On the chance that we do get all the way through the rest of S/J, we will start Subject Matter Juridiction. So prepare Overview of Federal Jurisdiction, including the jurisdictional allegations in our sample pleadings.

Sunday, March 5, 2017

Two Different Perspectives on Rule 26

According to Judge Andrew Pack of the S.D. N. Y., lawyers need to learn and understand the amended FRCP Rule 26(b)(1), the rule governing the scope of discovery, because lawyers can't just request anything, regardless of its relevance. Previously, Rule 26(b)(1), permitted information that was "reasonably calculated to lead to the discovery of admissible evidence." The amended rule re-defines the scope of discovery as "any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Also, lawyers should work together and cooperate on what documents can be requested for discovery, in order to save clients money and avoid aggravation.

http://www.law.com/sites/almstaff/2017/02/14/bursting-through-the-legal-tech-bubble-judge-andrew-peck-talks-discovery-in-the-age-of-esi/

A second article states the "new" proportionality concept of Rule 26(b) did not change much since proportionality was already covered by the old Rule 26(b)(2)(C)(iii), which stated discovery was limited when its burden outweighed its benefits, and the old Rule 26(g)(1)(B)(iii), which stated that lawyers must certify that discovery will not be unduly burdensome. Although much hasn't changed with the 2015 Amendment, the new language has streamlined the process by emphasizing the need to analyze proportionality before requesting discovery information.

http://apps.americanbar.org/litigation/committees/pretrial/articles/spring2016-0516-proportionality-amended-rule-26b1-new-mindset.html

Saturday, March 4, 2017

For Monday--Section C

Make-up session: Part I, Part II.

We continue with Summary Judgment: Standards and Carrying the Burden of Production. Can you reconcile Celotex and Adickes in terms of what is demanded of each party on summary judgment? How did Justice White's approach in Celotex differ from Justice Rehnquist's? Break down the language of FRCP 56(a)--what does it mean and how does it work? Look-up (in Black's or some similar source) and think about the concepts of Burden or Persuasion and Burden of Production; think about how they work at trial and on summary judgment.

Friday, March 3, 2017

For Monday-Section A

Friday double-session audio (compressed).

Review Standards and Procedures and prepare Carrying the Burden of Production. What does the evidence look like on summary judgment and consider how it can be used at summary trial or trial in both Adickes and Celotex. How much evidence is necessary to create a genuine dispute? How does the legal standard play into this (consider Sitzes and Justice Ginsburg's concurring opinion in Scott)? Break down the facts and evidence in Sitzes.

Thursday, March 2, 2017

Sample Answer--Essay V

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Section A: Mean 16, Median 17
Section C: Mean 18, Median 20.5

One point about content: Just about everyone confused 15(a)(1)(A) and (B), looking to whether either was satisfied (was it filed within 21 days of service or 21 days of service of the response). Remember, only one can possibly apply, depending on whether the pleading to be amended is one to which a responsive pleading is required (FRCP 15(a)(1)(B)) or not (FRCP 15(a)(1)(A)). So you first ask what you're amending, then pick one rule or the other.

Answers are still conclusory. This question included a lot of detailed facts. Use them to explain, in detail, why there is or is not undue delay, undue prejudice, etc. Don't assume I know the facts leading to your conclusion--state the facts that support it.

Again, think about the the flow of your answer: Rule, Explanation, Application. Each Foman factor is its own rule. So state that, explain what it means, then apply it. Then move to the next factor (rule), state and explain it, then apply it.

Sample Answer after the jump

Wednesday, March 1, 2017

For Saturday Make-up--Section C

Friday audio. Make-up session (the first of three) at 11 a.m. Saturday in RDB 2008.

We finish on Discovery, looking at the available sanctions under FRCP 37. What is the purpose of sanctions for discovery violations and how does that affect the choice of sanctions. Prepare the Coca-Cola hypothetical, thinking about how the dispute over that piece of evidence will play out procedurally and the arguments from both sides. Be ready to work through the entire dispute, start to finish.

We then turn 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). Can you reconcile Celotex and Adickes in terms of what is demanded of each party on summary judgment? Break down the language of FRCP 56(a)--what does it mean and how does it work? Look-up and think about the concepts of Burden or Persuasion and Burden of Production; think about how they work at trial and on summary judgment.

Making arguments

A thought on structuring legal arguments, whether in class discussions or papers (and this goes not only for civil procedure but for all classes):

It is important to think about all the possible legal rules and how they all fit together and to structure your argument in the best way possible. You eventually will (or at least may) get to everything. But there is an order in which to do it and you must figure out your hard and soft positions and make your case accordingly, being careful not to conflate them or to give up on one too easily.

So consider Coke's position on its motion for a protective order (or opposition to the Bottler's motion to compel): Coke had two arguments: 1) We should not have to produce and 2) If we have to produce, it should be under certain terms and conditions. Both arguments must be made and they are not mutually exclusive. But think about how you want to present them and why you should not give up on # 1 too quickly to fall back to # 2. So the initial focus (and where I was trying to direct the conversation) was on what Coke should argue to avoid producing at all, rather than falling too quickly into conceding production and then trying to limit the business harm.

For Friday (Double session)--Section A

Wednesday audio. Remember, a double session on Friday. We should be done by around 1:15-ish.

We continue with Summary Judgment: Standards and Procedures. Can you reconcile Celotex and Adickes in terms of what is demanded of each party on summary judgment? Break down the language of FRCP 56(a)--what does it mean and how does it work? Look-up and think about the concepts of Burden or Persuasion and Burden of Production; think about how they work at trial and on summary judgment.

Look ahead assignment-wise: The Preliminary Exam is a take-home, involving five (5) short-answer questions, 150 words per question. It will be distributed on March 20 (the day we return from spring break) and due one week later, on March 27. (That will be more than enough time to work on it).

Essay V will be distributed sometime after break, in all likelihood. To the extent the timing overlaps, we will adjust as needed.