Two final points on pleading

Two final points on pleading I forgot to mention in class. For your complete information:

• FRCP 55 controls what happens if a defending party fails to respond to a claim (by motion or responsive pleading). FRCP 55 allows for issuance of a default, which the court reduces to a default judgment. A default judgment has the same force and effect as a judgment entered following adversarial litigation and can be enforced the same way.

• FRCP 41 controls when a plaintiff has filed a complaint but does not wish to proceed. She can voluntarily dismiss the suit (some states refer to this as a "nonsuit"), ending the litigation on various terms.

For Friday

Wednesday audio--Section A; Section B. No class Thursday; to be made-up after break. Only 70 minutes on Friday. Essay # 1 due outside my office by the beginning of your respective class times. Essay # 2 due a the beginning of class Friday.

We turn to Amendments, the last piece of pleading. Prep everything for Friday. Remember to work off the new version of FRCP 15 on the blog, as well as the committee notes for the relevant changes. Remember that we already discussed how to choose between FRCP 15(a)(1)(A) and (B), so review those notes.

    • What might a party do in amending a pleading that states a claim for relief? What might a defending party do in amending a responsive pleading? Review the facts and procedure in Zielinski and Krupski and consider arguments around different possible pleadings.

    • How do the 15(a)(1) time periods work? What is the latest a party can amend and what is the earliest?

    • When must a party look to FRCP 15(a)(2)? What should a party do if a pleading is improperly filed under FRCP 15? Consider whether the latest pleading is properly filed:

            Dec 3, 2022: A files complaint against City, Chief of Police, and 7 officers

            Apr. 29, 2023: Parties confer: A agree to drop chief and 6 officers and proceed against city and 1 officer

            Apr. 30, 2023: Ct accepts agreement. Gives A ten days to file amendment.

            May 7, 2023: A files and serves Amended Complaint

            May 15, 2023: X files and serves a 12(b)(6) motion

            June 2, 2023: A files and serves Second Amended Complaint, without requesting leave

    • What is the effect of the amended complaint and previously filed pleadings and motions?

    • How do amendments affect FRCP 7(a) designations for pleadings stating a claim and for responsive pleadings?

    • What should the last document be called?

            • A files a complaint

            • X files an answer

            • A files a complaint

            • X files an answer

            • A files a complaint

            • X files __________

    • What should the last document be called?

            • A files a complaint

            • X files a 12(b)(6)

            • A files a complaint

            • X files a 12(b)(6), which the court denies

            • X files an answer

            • A files a complaint

            • X files an answer

            • A files a complaint

            • X files an answer

            • X amends to file a _______

    • Do Winston's eight and ninth affirmative defenses have any force or effect?

    • How does FRCP 15(a)(2) connect to dismissals with or without prejudice?

    • What are the six considerations for leave in Foman?

    • Consider: In Zielinski, PPI moves for leave to amend to change its answer to ¶ 5 to make clear it is not responsible for the pier. What is Zielinski's argument for undue prejudice?

For Wednesday

Friday audio--Section A, Section B. Apologies for the delay in posting Essay # 2. Essay # 1 due in class on Thursday; Essay # 2 due in class on Friday. The instructions for formatting are in the Grading Information sheet included in the introductory blog posts from the beginning of the semester.

We dive into the weeds of FRCP 14 and the downstream claims in 14(a)(2), (a)(3), and (a)(5). Work through Holmes; identify each claim and whether it can be included in the action. Consider the role that FRCP 18(a) plays in all of this.

    • What does the logical relationship require? What are its limits, according to Jones? Are Winston's counterclaims permissive or compulsory? Were Ford's counterclaims permissive or compulsory?

    • Consider whether the counterclaims in the following case are permissive or compulsory:

        Consumers Union publishes Consumer Reports Magazine. CR publishes a negative review of some stereo products made by Bose. Bose holds a press conference to announce plans to sue Consumers Union for trademark infringement, then files the lawsuit. Consumers Union wants to assert two counterclaims: Defamation (arising from false statements at the press conference) and Abuse of Process (alleging that the trademark itself is so frivolous as to be tortious.

    • What is the difference between an affirmative defense and a counterclaim? Can the same legal rules serve as both? Consider fraud and contributory/comparative negligence. What happens if a party mixes them up?

My plan is to finish Reponsive Pleadings on Wednesday, then move to Amendments on Thursday and Friday.

Essay # 2

Acrison, Inc. v. Anthony Rainone and Brach Eichler LLC

 

Acrison, Inc. (“Acrison”) files this complaint in the District of New Jersey on February 3, 2024. It alleges one count under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. Defendants are Brach Eisler LLC (“Brach Eisler”), a law firm, and XDD, Inc. (“XDD”), a computer services company.

 

The CFAA contains the following provision:

 

18 U.S.C, § 1030(g): No action may be brought under this subsection unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage.

 

Brach Eisler and XDD file a joint Motion to Dismiss under FRCP 12(b)(6). They argue that the complaint is untimely, in that Acrison failed to plead facts showing the complaint was timely filed.

 

In response to the motion, Acrison argues: 1) the statute of limitations is an affirmative defense that cannot be raised on a 12(b)(6) motion, and 2) if the issue can be raised on a motion to dismiss, the motion should be denied.

 

As the court, decide the motion.

Essay # 1 (Due Thursday, February 22)

Honorable Paula Patrick v. The Daily Beast Co. and Laura Bradley

Plaintiff filed this amended complaint in the United States District Court for the Eastern District of Pennsylvania, asserting one count of False Light, arising from publication of an article, authored by Bradley and published on the website The Daily Beast.

 

Beyond the pleading, you have the following information:

 

Published News Reports (bullet points indicate statements made in the stories):

 

   Daily Beast, October 9, 2021 (this is the story at issue and was attached to the Amended Complaint).

   Q’Anon Linked Judge Rules in Unhinged War Over Philly Columbus Statute; After a lawyer threatened to tear down a plywood box covering the statute itself Judge Paula Patrick ruled that it must remain visible to the public.

      • Paula Patrick is a state trial court judge in Philadelphia, Pennsylvania and an unsuccessful candidate for the Pennsylvania Supreme Court.

      • During her unsuccessful Supreme Court bid, Judge Patrick participated in many campaign events. One event was a 40-minute video interview on Up Front in the Prophetic with QAnon supporter Prophetess Francine Fodsick. During the interview, Patrick was asked whether she was considering appearing at a Q-Anon-associated conference later that year; she said she had not ruled it out.

      • QAnon supporters believe, without evidence, in many conspiracies. One is that Donald Trump was elected President to defeat a cabal of cannibalistic pedophiles working in the government.

      • Judge Patrick’s name appeared on a list of speakers for the conference.

      • Judge Patrick has denied that she ever planned to attend a QAnon-affiliated event and had no idea why she was listed as a speaker.

      • In September 2021, Judge Patrick issued a decision in a lawsuit about efforts to take down a statue of Christopher Columbus in South Philadelphia. She ruled that the statute must remain up and visible, rejecting suggestions that it could be covered up by boards.

      • This story cites reporting in the Philadelphia Inquirer, ABC6 (a Philadelphia TV station), and CBS Philadelphia (same).

 

    Philadelphia Inquirer, April 30, 2021

   Judge Denies Link to Q’Anon

       • Judge Paula A. Patrick denied any link to QAnon.

       • Judge Patrick did not attend a scheduled conference associated with QAnon.

 

 

Substantive Legal Principles:

 

Graboff: False light imposes liability on a person who publishes material that is not true, is highly offensive to a reasonable person, and is published with “actual malice,” meaning with knowledge of its falsity or reckless disregard for its falsity.

 

McCafferty: Actual malice focuses on the defendant’s attitude towards the truth, not towards the plaintiff. Actual malice does not mean the defendant acted with malice, ill will, or bad motive towards the plaintiff or with intent to harm the plaintiff. It means defendant did not care whether the published statements were true—the defendant knew they were false or was reckless as to whether they were false.

 

Tucker: Actual malice requires that defendant doubt the truth of his statements. Failure to investigate or confirm statements does not constitute actual malice, absent some indication a journalist subjectively doubted the veracity of the story. Reporters do not act with actual malice in relying on prior news reports, absent facts showing they subjectively doubted the truth of those prior reports.

 

Harte-Hankes: The press need not accept a person’s denials, however vehement; such denials are so commonplace in the world of charge and countercharge that they do not alert the conscientious reporter to the likelihood that his statements are false or in error.

 

Procedural Background:

 

   • This is the third complaint Judge Patrick has filed. She filed in state court, then withdrew the complaint. She refiled in federal court and the court dismissed her original federal complaint.

 

 

You are counsel for Daily Beast and Bradley. You file a Joint Motion to Dismiss under FRCP 12(b)(6), arguing the complaint fails to sufficiently plead the element of actual malice. You attach copy of the April 30, 2021 Philadelphia Inquirer article and ask the court to consider the article as part of the motion to dismiss.

 

For defendants, argue in support of the motion, including why the court can consider the Inquirer  article and the appropriate terms of any dismissal.

For Friday

Thursday audio--Section A, Section B. Essay # 1 posted at noon. Essay # 2 posts at noon tomorrow. Section B meets in RDB 1000 tomorrow.

So a couple things to clarify:

    • If the defendant denies the allegations in the complaint and has no affirmative defenses, it likely will not file a 12(c). There is a factual dispute and the case goes to discovery.

   • That something could, logically, be either part of the claim or an affirmative defense usually is resolved before you file the complaint. The lawmakers (courts or judges) decided whether something is a claim or defense; you check the law and draft your pleadings accordingly.

    • There are, of course, rare cases in which that has not been decided--a statute does not make clear which it is. Now you have to make your best guess on your reading of the law as to which it is and plead accordingly, then the court will resolve the legal issue in this litigation.  Again, this is the outlier case.

Tomorrow, we turn to new claims:

    • What rules govern in pleading additional claims? What happens in response to those additional claims? Who can those claims be brought against? What happened procedurally in Jones?

    • What is the common standard for bringing additional claims?

Be ready to work through the following (this expands on the problem Glannon pp. 246-47). Map out all the claims, decide what type they are, and whether they must, can, or cannot be brought. (As always, assume jurisdiction over each and focus only on the FRCP). Everything arises from the deal between Holmes and Clear Code to produce some code for Holmes. Consider the first procedural steps in all of this.

• Holmes against Clear Code for breach of contract for failing to provide working code.

• Holmes against Cosgrove, Clear Code's former president, for fraud in the inducement for inducing Holmes to enter into the contract

• Clear Code against Holmes for non-payment on this contract.

• Clear Code against Holmes for non-payment on a prior job

• Cosgrove against Clear Code for indemnification of any judgment Cosgrove must pay to Holmes.

• Cosgrove against Clear Code for wrongful termination (Clear Code fired him after the Holmes deal went bad).

• Clear Code against Cosgrove to enforce a non-compete, to stop Cosgrove from working for a competitor

• Clear Code against its insurance provider, for indemnification under their insurance contract.

• Clear Code against Jasper for making bad code (Clear Code sub-contracted the Holmes job to Jasper).

• Jasper against Clear Code for non-payment.

• Jasper against Clear Code for non-payment on a past job.

• Jasper against High Tech for selling a defective computer (which caused Jasper's bad code).

• Jasper against Holmes for Quantum Meruit (to recover the value of the work done on the project)

• Jasper against Holmes for Defamation (Holmes told people Jasper was a bad coder)

• Holmes against Jasper for Tortious Interference with his original deal with Clear Code.

 

For Thursday

Wednesday audio--Section A, Section B. Essay # 1 will post at noon Thursday (tomorrow) and due at the beginning of class on Thursday, February 22. Essay # 2 will post at noon on Friday and due at the beginning of class on Friday, February 23.

The next two days will be spent on Affirmative Defenses and New Claims. I am going to give you stuff for both days now and advise you to prep all for tomorrow, although we will not get too far into new claims until Friday. So prep everything except FRCP 41 and 55.

For Affirmative defenses, call the definition we ended class with: "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." What does "they" refer to? What former pleading? What is the ordinary legal effect? Consider:

    • What affirmative defenses are available and where do they come from? What affirmative defenses did Winston include? What is wrong with how they were pleaded in Winston?

    • What is the difference between a fact being an element of a claim and an element of an affirmative defense? How do you figure out which something is? How does it affect pleading?

    • How could a fact be part of a claim or defense and how does it affect pleading in the following? Consider how pleading is affected by whether facts are part of the claim or the defense:

        • Debt: 3 facts: 1) Money borrowed; 2) Money due; 3) Money paid or not

        • Sexual Battery: 1) Sex; 2) Consent or not

    • How did Winston arguably err in his consent defense? See ¶ 49 and the affirmative defenses.

    • What is the connection between 12(b)(6) and 8(c)? What are the procedural mechanisms for a defendant ask the court to decide on an affirmative defense? Consider the example of a statute of limitations defense?

Issue preclusion in the Trump § 3 litigation

If you listened to yesterday's arguments in the litigation attempting to remove Donald Trump from the ballot in Colorado, you would hear a brief cameo from issue preclusion.

Colorado made a legal determination (about the scope of § 3) and factual finding (Trump engaged in insurrection), in an action to which Trump was a party (remember he intervened). Those legal and factual conclusions may have preclusive effect in proceedings to exclude him in other states. The issue was litigated and resolved, it was necessary to the judgment, and Trump had a full-and-fair opportunity to litigate it. Some Justices raised the concern that this would allow one state court--the first one to address the issue--to exclude a candidate from the ballot in all states. Remember that preclusion applies between states and between states and federal.

Trump's attorney identified an out, at least in this case: Colorado does not recognize non-mutual preclusion. Since any new state is a different party from Trump, preclusion would not apply. And Court # 2 applies the preclusion rules from Court # 1--giving the prior decision the same preclusive effect the issuing court would have given its decision. So Colorado's determination that Trump engaged in insurrection would not bind, say, an Illinois court considering whether to exclude Trump from its ballot.

The Court seems likely to say states cannot keep candidates off ballots for federal office, so this is moot. But see it as a surrounding issue.

Civ Pro really is all around us.

For Wednesday

Friday audio--Section A, Section B. Essay # 1 will be posted on Thursday, February 15 and due in class on Thursday, February 22. If anyone wants to send a picture of the flowchart from the board, I can post it.

We turn to Respsonsive Pleadings. As we will see, there are three pieces to a responsive pleading: 1) Failure-of-Proof Defenses; 2) Affirmative Defenses; and 3) Additional Claims. For Wednesday, we will focus on # 1. Prep FRCP 7(a), 8(b), 10, 12(c), and 12(f), along with Zielinski and King Vision. Work through the Answer in Kinsmann and how the defendant offers different responses to different allegations.

    • What are the defendant's responsive options? How does the Kinsmann answer use each and does it do so properly?

    • Must the defendant explain a response?

    • What was wrong with the defendant's initial response to ¶ 4 in Zielinski?

    • What is the remedy for an improper defense?

    • How can each party use FRCP 12(c) in response to the defendant's responses to the allegations in the complaint?

For Friday

Thursday audio--Section A, Section B.

Again, no new reading; review everything for Future of Federal Pleading.

    • Do the application of the pleading analysis for VOA and Godin.

    • What is the problem with the Court looking for and finding an "obvious alternative explanation" for the allegations in the complaint?

    • What does Johnson suggest about what a plaintiff must do in his complaint?

Sample Essay

I expect Essay # 1 to post sometime next week and Essay # 2 to come shortly after.

Below is a sample essay and answer. Because we did not cover Rule 11 in detail, the analysis may not make much sense; don't worry about that. The point is to show you what the essay questions will look like and how you should approach your analysis and writing. Please refer to the post on writing tips for more.

 

You are counsel for the plaintiff in Naruto v. Slater. The defendants file a motion to dismiss the complaint; as part of that motion, they request sanctions under Fed. R. Civ. P. 11. The motion states that the complaint violates Rule 11(b)(1) and Rule 11(b)(2); it seeks sanctions from Naruto as plaintiff; PETA, as next friend; and you, as counsel. The motion specifically requests attorney's fees as the appropriate sanction.

 

For purposes of this problem:

    • The defendant's motion cites Wiggens, Ninth Circuit precedent holding that several federal statutes do not apply to non-humans absent clear congressional statement. The Copyright Act was not among the statutes Wiggens mentioned or discussed.

 

Explain why Rule 11 sanctions should not be imposed on you or on your client.

For Thursday

Wednesday audio--Section A, Section B. 

No new reading, but review what you did for today.

    • We can think of plausibility as a baseline--one's initial, common-sense reaction to some facts. How does this work in Swierkiewicz and Morgan?

    • What determines whether the allegations, taken as true, state a plausible claim?

    • Is this legal or factual insufficiency and what should be the terms of dismissal?

    • What makes an allegation conclusory or nonconclusory (hint: Note how Iqbal describes not-presumed-as-true conclusions)? Consider Swierkiewicz and a car accident case--what would be a conclusory allegation in each and what would be a nonconclusory allegation?

    • What does it mean that this is a context-specific inquiry? What is the context of Twombly and Iqbal? What happens to the pleading standard if you change the context?

    • Be ready to discuss the sufficiency or insufficiency of the complaints in Twombly, Iqbal, Godin, and VOA. Be ready to point to specific ¶s in the complaints that establish the claim.

  

For Wednesday

Thursday audio--Section A, Section B. See everyone at the symposium tomorrow. A sign-in sheet for each section will be available.

We continue with Heightened Pleading.

    • Think about possible justifications for subject fraud, mistake, and securities fraud (and only those) to heightened pleading and the counter-arguments for why the rules are not justified. 

    • What is the argument for treating civil rights cases under FRCP 9(b) and why did SCOTUS reject them? What does the Court do with the argument that civil rights cases raise similar problems to fraud claims?

Then move to Future of Federal Pleading; read everything for Wednesday, as this will take us through most of the week.

    • Focus on Twombly and Iqbal and how they changed (or did not change) the meaning of FRCP 8(a)(2). Does any part of Conley survive? What is the pleading standard after Twombly and Iqbal?

    • What motivates higher pleading? Can what the Court said about policy arguments in Swierkiewicz be reconciled with Twombly and Iqbal's concerns?

    • What are "conclusory facts" and how are they handled on a 12(b)(6)?

    • Analyze the complaints in VOA and Godin under the Twombly/Iqbal standard and determine whether they are sufficient.