Section A: Median: 14; Mean: 15.2
Section B: Median: 15; Mean: 17
A couple of general reminders about common problems that have come up on all 3 essays; I addressed these in the instructions for the essays and in the blog posts on good writing, but they bear repeating (and the prior explanations bear review):
• Know the role the question asks you to play. If you are the judge deciding a motion, don't say "The court should grant the motion." You're the court--grant it or deny it.
• I don't require you to find the original cases and provide full citations. In fact, the instructions make very clear that you should not be looking at anything other than the essay prompt and class materials. You should not be going online for anything, even to find a full citation for a case--since you don't need to provide citations at all.
• Think about how you organize your rule/explanation where you have a rule with multiple possible independent factors, such as the Foman reasons. Is it better to list and explain all 6 reasons, then go back and apply each? Or is it better to explain and apply one ground, then move on to the next? Which makes it easier for a reader to see and understand your rule/application?
• On that note: If you do not have facts that could support some of those reasons, no need to give equal space to all.
• You were asked to decide a motion for leave to amend. FRCP 15(a)(1) is irrelevant to anything in the case. Regardless of whether the party could have amended as a matter of course, by moving he necessarily asked the court for permission and therefore must satisfy 15(a)(2) and Foman. In other words, there was no reason to analyze or even discuss the 15(a)(1) time periods at all.
• Similarly, no facts indicated the amendment was filed after the limitations period had run. So there was no need to discuss relation back.
• You do not have write to the full 1000 words. But I try to make each essay substantial enough that a good anser will come close to that. It is unlikely anyone is such a concise writer that he could do a thorough and complete analysis in 700 words.
College Republicans v. Rose
Plaintiff’s motion for leave to amend is granted.
A party may amend a pleading with leave of court. FRCP 15(a)(2). A court “should freely give leave when justice so requires.” FRCP 15(a)(2). Justice so requires unless when one of the six considerations of Foman is present—undue delay, bad faith, dilatory motive, repeated failure to cure, and futility of amendment. The court presumes amendability, granting leave unless one of these exceptions, narrowly construed, is present. This furthers the FRCP's goals of resolving cases on the merits. Foman. Because none is present, justice requires that plaintiff have leave to amend.
This represents plaintiff’s first attempted amendment; there has not been repeated failure to cure pleading defects because there has been no prior attempt to cure defects. No facts suggest plaintiff knows his amended pleading lacks merits so as to constitute bad faith or that he files it for the purpose of delaying proceedings. The court focuses on the remaining Foman factors.
Undue Delay
Undue delay considers whether plaintiff unduly delayed seeking leave to amend and whether allowing amendment will unduly delay the proceedings. Neither is the case here.
Plaintiff did not delay seeking leave to add the individual-capacity claim. It filed this motion on January 15, 16 days after completing the final depositions, within the 30-day period authorized in the court’s scheduling order. Plaintiff could not have sought leave earlier, as it uncovered the facts supporting the new individual-capacity claim during discovery.
Nor should this new claim unduly delay proceedings. The new claim does not require costly or time-consuming further discovery. Parties should not need any further discovery on this claim. They identified and exchanged documents and witness testimony relevant to this claim; that is how plaintiff learned the basis for pleading it. If they require further discovery, the new claim overlaps with the existing official-capacity claim—both consider whether the First Amendment was violated—on which discovery is near complete. Further discovery would focus on the narrow issue of Rose’s individual violative actions; that discovery should not add excessive cost or time. Moreover, any further discovery remains within the scope of the court’s scheduling order. Discovery closes 90 days after the final depositions (in December 2023)—late March; at least six weeks of discovery remained when plaintiff filed this motion. The court never set a trial date, thus additional discovery will not delay trial.
Undue Prejudice
Undue prejudice focuses on the additional burden, costs, and hardship an amendment imposes on the opposing party—here the burden on defendant of defending a new claim. The non-movant defendant must experience more than the ordinary costs and burdens of defending a claim. He must experience greater prejudice than he would have had the new claim been included in the original pleading.
Defendant should not experience any prejudice from defending this new claim, let alone undue prejudice. Rose has known it might have to defend an individual-capacity claim since the action commenced. The original Complaint included an individual-capacity claim, although plaintiff lacked supporting facts; the proposed amendment seeks to reinstate that claim, with new supporting facts. The proposed amendment does introduce a new claim involving new facts arising from distinct events about which defendant was not on notice. The court dismissed the prior individual-capacity claim without prejudice, stating “plaintiff may move to amend if discovery reveals Rose’s personal involvement in the violations.” Defendant knew that plaintiff might do what it did here—identify new information in discovery and plead new facts showing defendant’s individual actions—and was on notice to plan and litigate accordingly. Again, the individual-capacity claim overlaps factually with the existing official-capacity claim. Both turn on the same facts and evidence of what happened to disrupt the two campus events, with the new claim requiring additional facts about Rose’s individual actions. Other than that one issue, Rose is prepared to defend this reinstated individual-capacity claim because it has prepared to defend the existing official-capacity claim.
Futility of Amendment
An amendment that states a claim for relief is futile if the claim in the amended pleading would not survive a 12(b) motion. Where the question is the sufficiency of the amended complaint, the court incorporates and applies to the motion for leave the analysis it would on a 12(b)(6) motion to dismiss the amended complaint. That is, if the amended complaint would survive a 12(b)(6), it is not futile and the court should allow amendment. The movant must attach a proposed amended pleading to the motion for leave (as plaintiff did here), allowing the court to perform a 12(b)(6) analysis. The court reviews the four corners of the pleading, takes nonconclusory facts as true, and determines whether it includes a “short and plain statement of the claim showing the pleader is entitled to relief.” (FRCP 8(a)(2)). It must include sufficient nonconclusory factual matter to state a claim “plausible on its face,” in that the court can “draw the reasonable inference that the defendant is liable.” Iqbal.
Plaintiff’s amended complaint states an
individual-capacity claim. Again, the original Complaint sufficiently pleaded facts
showing that allowing the two events to be disrupted violated the First
Amendment.; the court deemed those facts sufficient in denying defendant’s
motion to dismiss the official-capacity claim. Those allegations remain in the
new pleading and apply to the new individual-capacity claim to show a plausible
entitlement to relief on the separate claim. The Amended Complaint adds new
allegations that plausibly describe Rose’ direct actions around those violations—she
was at the Tabling Event, did not intervene, and told disruptors she would not
stop them from interfering with plaintiff's speech (¶¶ 52-53); she told her underlying to encourage Dr. Laffer to cancel
his speech and leave campus (¶¶ 91-92); and she observed and did not stop the
disruption of the Laffer Event. (¶ 102). Taken as true, these facts plausibly plead
defendant’s individual actions that caused the interruption or disruption of plaintiff’s
expressive events, the basis for the alleged First Amendment violation.
