For Thursday

Wednesday audio--Section A, Section B. Essay # 7 has posted. Essay # 8 will post on Thursday.

Review Supplemental Jurisdiction.

    • If VOA is also from Massachusetts, there is no supplemental jurisdiction over the hypothetical old contract claim. But what about the actual state claims over the 2012 BSO season?

    • Ford (p.457) says § 1367(a) reaches the limits of Article III. What does that mean?

     • What is the connection between § 1367(a)'s standard and the standard for joinder in FRCP 13(a), (b), and (g); 14(a), and 20? There are 3 logical possibilities--what are they and which does Jones adopt? What does that mean for the counterclaim in Jones? What about the counterclaim in Kinsmann ((review our discussion of that from Responsive Pleadings).

    • Does § 1367(b) apply in Godin? What are the "jurisdictional requirements" of § 1332?

    • § 1367(b) identifies 3 categories of cases in which there is no supplemental jurisdiction. What do they have in common? Does § 1367(b) limit supplemental jurisdictional in the following (assume joinder is proper in all):

        • Metta wants to file a crossclaim against Nicely.

        • A (IA) v. X (NE). X (NE) impleads M (IA). A wants to file a claim against M.

        • A (FL) v. X (NY) and Y (FL) 

        • A (NJ) & B (DE) v. Walmart (DE/AR).

                (See also the discussion in Glannon (p.270) on this problem, especially as to the amount in controversy)

Then move to Removal. Read the assigned statutes (§§ 1441, 1446, and 1447) and map out the process for removal--when and how it functions and what the parties must do. What is the effect of filing a notice of removal? What is not required for a defendant to remove? What happens then? What is the timing for removal?

    • What is the logic of the "Forum Defendant Rule" of § 1441(b)(2)? 

    • A, Inc. (IL/IL) sues X, Inc. (PA/PA) in state court in Pennsylvania. The day after filing, X removes to federal court. Under § 1441(b)(2), is removal proper?

Essay # 7 (Sec. A)

Download Regular Type; Download Large Type; and after the jump. Due next Wednesday, April 9.

Two things in handling this case:

1) Math is required, as you must calculate time periods and number of dayss. You may use this site, which allows you to calculate the number of days between two dates.

2) You have pieces of deposition testimony and pieces of Affidavits. The Affidavit paragraphs are numbered. Each question and corresponding answer in the Dep is number (Q1 + A1; Q2 + A2; etc.). Be specific in what you cite to.

Pay attention to the role you are told to play.

Essay # 7 (Sec. B)

Download Regular Type; Download Large Type; Read after the jump. Due in class next Wednesday, April 9.

You have excerpts of an Affiadvit; the paragraphs are numbered. You have excerpts of a Deposition; the questions and corresponding answers are numbered (Q1 + A1; Q2 + A2; etc.). Please cite to evidence and be specific.

Pay attention to the role you are told to play.

 

 

Sample Answer--Essay # 6

Available outside my office.

Section A: Mean: 20.575; Median: 21

Section B: Mean: 17; Median: 17.375

Comments:

    • Not everything we touch in class must appear in your answer. Our class discussions, by design, cover everything about a topic; a single question may require less. The goal is to answer the question asked, not to show everything you know about the topic. So, here: You were asked to decide a motion to compel over four discovery requests. No need to discuss how the discovery process or the request for documents operates. You don't lose points for doing this. But you waste space that would allow you to write more and with more detail about what matters.

    • If you impose limits on the scope of discovery, you need to explain that limitation. If five years of emails is too long, explain why five years is too long and why a shorter period is more appropriate--besides "it's shorter."

    • Don't assume facts you do not have. You cannot say that searching her social-media feeds will require going through massive amounts of information--you do not know how active she is on social media. Maybe she does not post much, so it will not be "massive amounts of information." Or context matters for the inferences you can draw. Microsoft or GM or a government agency have "massive amounts of info" in ESI--they are huge corporations. An individual's social-media account is a different thing

    • As to Request # 1, she claims she does not take medicine. Wouldn't medical records--that show whether she takes medicine--be relevant to that?

    • Beware being too conclusory--you must explain. It is not enough to say something is relevant or proportionate--explain how and why. If your analysis or application consists of a single sentence, you need to do more.

    • (This point is not limited to discovery--it goes for everything): Don't define your case too narrowly. This case is was not about "religious discrimination" in the abstract. It is about a concrete context--plaintiff was fired because she refused to get a vaccine. She alleges that the employer violated Title VII by firing her (rather than exempting her from the vaccine) because she objected on religious grounds. But the case is "about" the firing and the vaccine as much as it is about religion. For purposes of this question, therefore, how should that affect discovery of things she said about her firing or about vaccine mandates or what medicines or procedures she does or does not receive?

For Wednesday

Friday audio--Section A, Section B. Essay # 7 will post on Wednesday, April 2, due Wednesday April 9.

Review the primer on federal question jurisdiction, along with § 1331 and Glannon pp. 25-30. You will need to have a basic grasp of "arising under" jurisdiction to understand supplemental jurisdiction. What federal claims do we see in VOA and in Godin?

We move to Supplemental Jurisdiction, which involves § 1367, an unfortunately confusing statute. Prep everything to cover Wednesday and Thursday. Review your notes from earlier in the semester on the definition of a claim, FRCP 8(a)(1), and joinder under FRCP 13, 14, 18, and 20.

    • Is there supplemental jurisdiction in VOA and in Godin and why?

    • Is there supplemental jurisdiction over Winston's counterclaims and why? Does it matter to whether the court can hear this counterclaim?

    • What might cause the court to decline jurisdiction under § 1367(c) and what facts might the court consider?

    • When should the parties and court rely on § 1367(a) and how does that reveal problems with how VOA pleaded its citizenship?

    • Why is it preferable to establish diversity jurisdiction rather than rely on § 1367?

    • Ford says § 1367(a) reaches the limits of Article III. What does that mean?

     • What is the connection between § 1367(a)'s standard and the standard for joinder in FRCP 13(a), (b), and (g); 14(a), and 20? There are 3 logical possibilities--what are they and which does Jones adopt? What does that mean for the counterclaim in Jones? What about the counterclaim in Kinsmann?

    • Recall the (fictional) prior-contract claim between VOA and BSO. Can it be joined under the rules? Is there jurisdiction? How does the answer change if Sohm is a California citizen and the only member of VOA or if VOA has another member who is a Massachusetts citizen.

    • Does § 1367(b) apply in Godin? What are the "jurisdictional requirements" of § 1332?

    • § 1367(b) identifies 3 categories of cases in which there is no supplemental jurisdiction. What do they have in common? Does § 1367(b) limit supplemental jurisdictional in the following (assume joinder is proper in all):

        • A (FL) sues X (CA) and Y (CA). X files a cross claim against Y. Y impleads its insurer, M (CA).

        • A (IA) v. X (NE). X (NE) impleads M (IA). A wants to file a claim against M.

        • A (NJ) & B (DE) v. Walmart (DE/AR).

                (See also the discussion in Glannon on this problem, especially as to the amount in controversy)

Federal Question Jurisdiction: A Primer

To save class time, a primer on Federal question juridiction; you can read and take notes here. Review this prior to class on Friday and next week, as it will be helpful in understanding  Supplemental Jurisdiction. , as well as looking at the assigned (and linked) statutes.

Read this in conjunction with the assigned (and linked) statutes; you can supplement this with Glannon pp. 25-30, which gives a nice basic overview.

We cover Federal Question Jurisdiction in greater depth in Federal Courts, an upper-level class that I encourage you to take during the next two years.

Yes, you are responsible for knowing this and it is fair game for the exam.

For Friday (Double Session)

Thursday audio--Section A, Section B. Essay # 6 due in class tomorrow.

We will finish Diversity Jurisdiction, so read and/or review all pieces of that. What are Mrs. Mas' possible domiciles and where did the court land as to her citizenship and why?

  • Consider the bases for jurisdiction (or lack of jurisdiction) of the following:

        • A (PR) v. X (DC) 

        • A (Cuba) v. X (FL)

        • A (Cuba) v. X (Venezuela)

        • A (TX) & B (China) v. X (Taiwan)

        • A (TX) & B (FL) v. X (Taiwan) & Y (FL)

        • A (Cuba/Lawful permanent resident domiciled in FL) v. X (FL)

        • A (NY) v. X (US Citizen domiciled in France) 

    • How do you determine domicile for corporations? What about for non-corporate business entities? What is the significance of entities having (potentially) multiple domiciles? Is there diversity jurisdiction in Morgan? What about in VOA?

    • What happens if adverse parties are entities (incorporated or unincorporated) with multiple citizenships? Consider whether there is jurisdiction (and on what bases) in the following cases:

        • A, Inc (DE/DE) v. X, Ltd. (NJ/Canada)

        • A LLC (NY/Mexico) v. X, Ltd. (NJ/Canada)

    • What is the purpose of the amount-in-controversy requirement? How do you determine if it is satisfied? What if the case seeks equitable relief (such as specific performance or an injunction)?

    • Plaintiff files in state court and wants to make clear the case cannot be filed in federal court because of the amount-in-controversy, by dramatically being .01 below the threshold. The complaint states "The amount in controversy is $ 74,999.99 and not one cent more." What did the lawyer do wrong, if the goal was to be .01 below?

    • What happens if the court finds non-diverse adverse parties and thus no jurisdiction?

We hopefully will begin Supplemental Jurisdiction, which involves § 1367, an unfortunately confusing statute. For tomorrow, prep § 1367(a), FRCP 18, and FRCP 82. Review your notes on the definition of a "claim" and consider the number, type, and jurisdictional bases for the claims in VOA and Godin.

For Thursday

Wednesday audio--Section A, Section B.  Essay # 6 due Friday--Please note that Plaintiff objected to those discovery requests from Defendant. Essay # 7 will post next Wednesday, April 2, due on Wednesday, April 9.

We continue with Diversity Jurisdiction; prep the entire section, which will take us through Friday. Review your notes (from the second day of the semester) on the basic structure of the federal judiciary and the difference between exclusive jurisdiction and concurrent jurisdiction.

    • What are the policies behind diversity jurisdiction? How does placing cases in federal court serve those policies?

    • A(FL) sues X (NY) in federal court in Louisiana; is there subject matter jurisdiction?

    • What is complete diversity and minimal diversity? What is required, by what source of law, and why? How does that requirement relate to the purposes of diversity jurisdiction? What is the argument in favor of minimal diversity and what are the problems with that argument, given the purposes of diversity jurisdiction?

    • What is the statutory basis for jurisdiction in Mas and why? Why is it necessary to consider the citizenship of Mrs. Mas in addition to Mr. Mas?

    • Consider whether there is complete, minimal, or no diversity in the following:

        • A (FL) v X (FL)

        • A (FL) v. X (NY)

        • A (FL) v. X (NY) & Y (FL)

        • A (CA) v. X (NY) & Y (MN)

        • A (NY) & B (FL) v. X (NJ) & Y (FL)

        • A (NY) & B (FL) v. X (NJ) & Y (IL)

        • A (NY) & B (NY) v. X (CA) & Y (CA)

        • A (NY) v. Audi (Ger) & VWA (NJ) & WorldWide (NY) & Seaway (NY)

    • What is domicile? What is change of domicile? What facts and evidence can parties use to prove domicile?  Where is Mrs. Mas a citizen?

    • Consider the bases for jurisdiction of the following:

        • A (PR) v. X (DC) 

        • A (Cuba) v. X (FL)

        • A (Cuba) v. X (Venezuela)

        • A (TX) & B (China) v. X (Taiwan)

        • A (TX) & B (FL) v. X (Taiwan) & Y (FL)

        • A (Cuba/Lawful permanent resident domiciled in FL) v. X (FL)

        • A (NY) v. X (US Citizen domiciled in France)

For Wednesday

Friday audio--Section A, Section B. Essay # 6 posted; Essay # 7 will post next Friday.

We will finish Summary Judgment on Wednesday; review the remaining provisions of FRCP 56, along with the 7th Amendment. Look at the problems on pp. 408, 409, and 417 in Glannon. 

    • When can a party that will have the burden of persuasion/initial burden of production at trial (e.g., plaintiff on her claim) get summary judgment and what must that plaintiff do in support of the motion for summary judgment?

    • Consider the Black Non-Attorney who was denied a job as a lawyer because he is Black and because he is not an attorney. Under the substantive law of "mixed-motive cases," the plaintiff must show that race played a role in the decision, then the burden of production shifts to the defendant to show it would have made the same decision regardless of race. The plaintiff has the burden of persuasion.

        • How could each party move for summary judgment in this case? What are the two material facts the parties will fight over? What would each party need to do to support its motion on each issue?

    • What happens if both parties believe they are entitled to judgment as a matter of law?

    • What happens if a plaintiff gets partial summary judgment? What happens if a defendant gets partial summary judgment?

We then move to Subject Matter Jurisdiction. Prep Overview, in addition to FRCP 8(a)(1), 12(b)(1), 12(h)(3), and § 1332(a).

    • When does each party consider whether the case is in the correct forum?

    • How does each party (the plaintiff filing in federal court and the defendant sued in federal court) present issues about subject matter jurisdiction to the Court?

    • What is the constitutional structure of the federal judiciary? What does Article III tell us about the jurisdiction of the federal courts? What doesn't it tell us about the jurisdiction of the federal courts? What is the connection between Article III and the various statutes, such as § 1331 and § 1332? (Note: We discussed Art. III § 1 and the basic court structure at the beginning of the semester--review those notes).

Essay # 6

Download Regular Type; Download Large Type; and after the jump. Due in class Friday, March 28.

Answer Key for Prelim

Section A: Mean: 9.106/10; Median: 10/10

Section B: Mean: 9.24/10; Median: 10/10

There is no need for me to hand papers back. You can compare your saved paper with this and calculate your points. If you have questions, come see me.

1) B.

    Need same transaction-or-occurrence and common question of law; C covers only the latter.

2) A.

    Certificate of Merit is a legal requirement, so it would go to legal sufficiency or insufficiency. Plaintiff still must plead sufficient facts to establish factual sufficiency.

3) C

    15(a)(1)(B) controls because it is a pleading to which a responsive pleading is required. SXSW has 21 days from when Federal moved. (B) is incorrect because a motion triggers the 21-day clock.

4) C

    Count I seeks contingent liability for current claims against SXSW, so 14(a)(1) allows it. Count II seeks liability for claims unrelated to the current action. But Count I makes SXSW and Federal opposing parties so 18(a) kicks in for Count II.

5) C

   This is futility--the amended pleading will not survive a Rule 12 motion (here a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction).

6) D

    It is not futile if it properly pleads jurisdiction. Whether SMJ is waivable is irrelevant to the issue.

7) B 

     7(a)(5) provides the designation and this is the second time SXSW tried to amend it.

8) C

    Because the entire contract was attached to the pleading, the entire contract is part of the pleading, regardless of which parts the pleading expressly discussed. The 12(b)(6) can address anything in the attached written instrument.

9) A

    Application of the facts pleaded to the law of insurance exclusions. None of the others have any legal meaning.

10) D

    This is legal insufficiency and thus dismissal with prejudice. SXSW has no existing claim against Federal because the insurance exclusion applies. It does not matter what additional facts SXSW could plead--plaintiffs seek a refund, SXSW wants Federal to indemnify it for that refund, and the insurance exclusion precludes that claim.

For Friday

Thursday audio--Section A, Section B. Essay # 6 will post at 12:30 Friday.

Be ready to discuss the problems from Glannon p. 408, 409, and 417.

    • How much of a dispute is "genuine?" What is the slightest doubt test? What did Scott replace it with?

    • Can the Non-Movant oppose summary judgment based on the possibility of disbelief of the Movant's evidence? In Adickes, had the officer denied presence, could Adickes oppose summary judgment by arguing the jury might disbelieve the officer?

    • What is required for a valid affidavit? Does it matter that the affidavit is self-serving? What should the court do if one person's affidavit and deposition diverge. Imagine:

            Adickes Deposition: The student told me the officer was in the store. I didn't see anyone.

            Adickes Affidavit (submitted in opposition to SJ motion): I saw the officer in the store.

    • How does substantive law affect the summary judgment analysis? What if substantive law requires clear-and-convincing evidence? What if, in Adickes, the plaintiff produces evidence of presence but not of communication or agreement--make the argument for defendant on summary judgment.

    • Imagine the Court in Scott adopted a per se Fourth Amendment rule: A person fleeing police at high speeds is per se an imminent threat. How does that affect summary judgment in that case? How does it affect the argument that the video is not one-sided?

 Salazar-Limon v. City of Houston:

    Salazar-Limon sues the City of Houston on a Fourth Amendment excessive force claim arising from an officer shooting him during a traffic stop. Under the Fourth Amendment, an officer's use of force is justified if he reasonably feared an imminent threat to his life or safety. Courts have held that an officer can infer an imminent threat if a suspect reaches for his waistband.

    Defendant moves for summary judgment. Argue both sides.

    The record shows the following:

        Undisputed Facts:

                • Plaintiff was shot in the back

                • Plaintiff did not have a gun.

        Plaintiff Deposition:

            I was walking away from the officer. He shot me immediately after or within seconds of commanding me to stop. I did not turn or have a chance to turn before I was shot; the shot came right after the command. I did not have anything in my waistband.

        Officer Deposition:

            The suspect raised his hands as if he were reaching for his waistband. I shot after he made the motion with his hands towards his waistband.