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.
