Just to be clear, if it isn't from the Glannon reading: Mutuality used to be the rule for issue preclusion--it could only be raised in actions involving the same parties. Modern courts have abandoned mutuality. As we discussed in class, a non-party to Case # 1 (such as Blurb in the second Naruto suit or the Board after the Metta suit) can avail themselves of preclusion in Case # 2. But it cannot go against a non-party to Case # 1, who never had an opportunity to litigate.
How does claim preclusion affect plaintiffs' strategy under FRCP 18(a)? If VOA brings it contact claim first in state court, then (after final judgment) brings its copyright claim in federal court, does preclusion apply? (Note: The answer is not that it is a different court system--courts respect and give preclusive effect to judgments from other courts).
How does preclusion affect FRCP 20(a) decisions? Consider two contexts:
1) Godin wants to break-up her claims against the Board (breach) and Nicely (defamation).
2) Godin wants to break up her claims against the Board (breach) and the Union (DP)
Then move to Responding to a Pleading: Motions. Prep the assigned provisions in FRCP 4, 5, 7, 8, 10, and 12(a), 12(b), and 12(d). Look at the complaint and motion in Naruto, along with Glannon pp. 401-17 and PAE.
• What does service of the initial complaint operate? What is the purpose and effect of service?
• What are the defendant's options in response to a complaint?
• What does a defendant seek to do with a motion under 12(b)? What are the issues that can be raised on such a motion? What is the difference between 12(b)(4) and (5)?
• What is the defense argument in the motion in Naruto.
• Claims or complaints can be dismissed with prejudice or without prejudice? What does that mean? When should a dismissal be with prejudice and when without prejudice?
• What is argued on 12(b)(6)? How does 12(b)(6) related to 8(a)(2)? What does the court analyze on a 12(b)(6) motion?
• A complaint can be legally or factually insufficient. What is the difference? How does that map onto dismissal with or without prejudice?
