Thursday, March 2, 2017

Sample Answer--Essay V

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

Doe v. Palm Beach County School Board:

The motion for leave to amend is granted; plaintiffs may file the Amended Complaint.

Parties may amend pleadings once as a matter of course (as of right) within certain times periods. (FRCP 15(a)(1)). Otherwise, they can amend only with written consent of the opposing parties or the court’s leave.

The pleading sought to be amended is a Complaint, a pleading to which a responsive pleading is required. Any amendment as a matter of course must be filed with 21 days of service of a pre-answer motion or responsive pleading. Defendants served their responsive pleading on December 27, 2016; the plaintiffs’ right to amend as a matter of course expired 21 days later, on January 17, more than a month before plaintiffs moved for leave to amend.

This Amended Complaint can be filed only with this court’s leave. A court should freely grant leave “when justice so requires.” In Foman, the Supreme Court identified six reasons that a court may deny leave to amend—six reasons why justice does not so require leave. These are: 1) undue delay in seeking to amend; 2) bad faith in seeking to amend; 3) dilatory motive (seeking to amend for the purpose of delay); 4) repeated failure to cure; 5) undue prejudice; and 6) futility of amendment. Absent one of the six reasons, courts should grant amendment liberally.

This is the plaintiffs’ first attempt to amend, so there are no past pleading defects they have failed to cure. There are no indications that they are adding this claim in bad faith—that they do not believe the claim has merit—or that they are asserting the claim to delay or draw out proceedings.

Nor was there undue delay. Plaintiffs’ attorneys identified the new claim upon doing further research and interviews with their clients. While not a persuasive reason, because they could (and should) have done that investigation sooner, the motion was filed less than two months after service of the responsive pleading, so there was no significant delay in bringing the amendment. More importantly, adding the claim does not adversely affect the proceedings, which remain in the embryonic stages. Discovery has not begun and the parties have only had preliminary, informal conversations about discovery and settlement. The parties have not held a pretrial conference with the court and no schedule has been set for discovery or trial. Adding this claim, and the additional discovery that goes with it, does not multiply proceedings that have been ongoing for a long time or that are close to completion. The case will not be delayed, much less unduly, by litigating an additional claim.

For similar reasons, the Board will suffer no undue prejudice in having to defend this new claim. Undue prejudice means the burden or disadvantage to a party in having to respond to an amendment is greater than it would have been in having to respond to the same issues in the original pleading. The question is whether the Board is more burdened in having to defend the Title VI claim in an Amended Complaint than if it was in the original. There is no indication that the Board will suffer any such prejudice. It has been consulting with counsel and preparing to defend itself. It has not yet expended time, money, or effort in litigating the case. While having to defend a seventh claim is a burden, it is no greater than if the plaintiffs had pled the claim in the original pleading two months ago.

The Board’s strongest argument for denying leave is that this amendment is futile because filed after expiration of the statute of limitations. Title VI has a two-year limitations period, running from the date of the last discriminatory act. That last act occurred on November 15, 2014, meaning the limitations period expired on November 15, 2016. Plaintiffs sought leave to amend on February 24, 2017; the Amended Complaint, if allowed, would be filed after the limitations period had expired.

This argument fails, however, because the Title VI claim relates back to the date of the original pleading. FRCP 15(c)(1). Relation back allows a pleading party to avoid the statute of limitations, and thus futility of amendment, when amendment is sought after the limitations period has run. If a new claim relates back, it will be treated as if included in the original, timely filed pleading. In this case, that means the original Complaint, timely filed on October 28, 2016.

The Amended Complaint adds a new claim against the Board, which is a party to the action and already defending five other claims. FRCP 15(c)(1)(B) controls, requiring that the new claim arise out of the “conduct, transaction, or occurrence set out . . . in the original pleading.” Relation back and statutes of limitations share underlying goals—ensuring notice to the defending party that he must defend himself on a claim, that he should not exercise his right to repose, and should preserve evidence and prepare to litigate. Relation back should be allowed if consistent with the notice goals of statutes of limitations. Krupski.

The same conduct, transaction, or occurrence standard of FRCP 15(c)(1)(B) matches the requirements for claim preclusion—all look to whether there is a logical relationship among the essential facts giving rise to each claim, such that fairness and judicial economy support litigating the claims together. That standard is satisfied here. The Title VI claim arises from the same real-world events as the six claims raised in the original Complaint—the physical and verbal abuse of the plaintiff students by the teacher. The claims all are based on the teacher’s abusive acts, facts the Board has been preparing to respond to and contest. A defendant is on notice to defend against all claims arising out of a particular real-world event, knowing the plaintiff must bring all claims based on those events or be precluded from bringing them in a separate action. Making the Board defend this claim would not be inconsistent with the purposes of limitations periods.