Thursday audio--Section B, Section A (forthcoming).
We continue with Amendments. Prep everything but Krupski and Herrera. Prep through Question 16. Our focus is going to be the text of 15(a)(1), Foman's interpretation of 15(a)(2), and the six factors Foman introduces. Be aware of the basic principle of relation back, although we will not dive into its elements until after break.
Wednesday audio--Section B, Section A. Essays ## 2 and 3 due in class tomorrow.
Prep the remainder of Responsive Pleadings. Work through all of Holmes; identify each claim and determine whether it is properly brought in this litigation. Consider also the counterclaims in Kinsmann, Bose, and Jones. Consider how FRCP 18(a) fits into all of this.
We might get to the beginning of Amendments at the end of class. Review FRCP 15(a)(1) and (2), Questions 1-3, and the two puzzles for this section. We are going to parse and break down the text of all parts of FRCP 15(a).
Stats: Mean: 28.4; Median: 24; High:40
Sample answer after the break.
Stats: Mean: 25; Median: 32; High: 37
Answer after the break.
During the discussion of the "office deal" statute, some suggested that the plaintiff should plead "not office" as an element, just to be safe. But the effects--taking on the burden of persuasion--weigh against that. The better answer there is for plaintiff to plead the cause of action as she understand it, be ready to fight for that position on the eventual dispositive motion, and be ready to change strategy if she is wrong. That actually captures why we allow dismissal without prejudice--it gives parties a chance to correct mistakes or change course if what they initially believed the law to be turns out to be wrong.
But the discussion also raised a slightly different idea--whether plaintiff in the complaint should anticipate and respond to likely defenses. Someone raised the prospect of pleading a response (e.g. tolling) to an anticipated limitations defense to a complaint the plaintiff knows was untimely filed. This case offers another example--the plaintiffs sued several members of Congress over their votes on legislation giving money to Israel, conduct that everyone knows is absolutely protected from civil liability by legislative immunity under the Speech or Debate Clause.
There are two pieces to this: One is the strategic question of how best to litigate your case. The other is the ethical question of whether filing a complaint the plaintiff knows to be subject to a strong defense (unless the plaintiff has a response or is arguing for an extension of the law) violates Rule 11.
There are two schools on this. On the strategic point, pleading the anticipated response probably will not make that much of a difference. Perhaps seeing the tolling facts in the complaint will cause the defendant not to bother filing the motion, realizing his defense will fail. More likely, the defendant already knew what the plaintiff's tolling argument will be, so this is not news to him. The defense's incentive remains the same--file the motion, make the plaintiff respond, and let the court decide. Same with the Israel suit--defendants will move to dismiss on immunity grounds, regardless of what the plaintiff includes in the complaint.
The Rule 11 concern might play differently. By pleading the response to the anticipated defense, perhaps plaintiff signals to the court that they have done their homework and filed a claim well-grounded in law and fact: They acknowledge the claim was filed after the limitations period but show why the claim is nevertheless timely; they acknowledge that legislators ordinarily cannot be sued but show the planned request for an extension of the law. One can see both sides of this point. For example, the silence of the plaintiffs in the Israel suit suggests they had not really considered the issue at all, making this sanctionable.
But note how this flattens out what should be a sharp distinction between claims (raised by plaintiff) and affirmative defenses (raised by defendant). After all, what if the defendant messes up and fails to raise that affirmative defense? Perhaps the plaintiff--as a matter of ethics and strategy--should be able to plead her claim (as the law defines it); put the onus on the defendant to raise his proper defenses; and respond as necessary?
No right answer. Strategic points to think about.
I am working through the first batch of essays. They are, overall, quite good.
Some additional stylistic points, which I think the sample answers reflect:
• Avoid "narrating" your answer--"the court does X, now the court does Y." Just do X and Y, explaining why it matters.
• Avoid talking (or severely limit how much you talk) about the parties or the other side. Rather than "plaintiff argues X, but plaintiff is wrong about X" or "defendant argues Y, here is how I resolve Y," just analyze and explain X or Y. It saves you words (which are sparse) and reads much better.
Thursday audio--B; A. Essays ## 2 and 3 posted; due in class next Thursday.
Think about what happens if the defense tries to use 12(c) on an affirmative defense, after the plaintiff has filed a reply to an answer. The court takes the facts in all pleading, if disputed, in light most favorable to the non-movant and then decides whether the non-movant could prevail.
Prep the remainder of Additional Claims. Work through the entirety of Holmes, identifying each claim by each party, whether it can be brought, why and how? Consider the requirements for counterclaims, crossclaims, and third-party claims in terms of relatedness and compulsoriness. Why make some counterclaims compulsory? Why are crossclaims and third-party claims never compulsory?
Wednesday audio (only Sec. B recorded--same stuff). Essays ## 2 and 3 drop at 12:30 tomorrow; due in class on Thursday, February 19. No class this Friday.
One quick note: Contrast Winston's approach to the answer--provide a lot of detail, a lot of new facts, and present a counter-narrative--with the far more common approach described in King Vision, where defendants refuse to admit (or even respond to) anything and end up with a document full of nonsense. Neither is consistent with the FRCP, although for different reasons. But only rarely (as with Judge Shadur in King Vision) do judges or plaintiffs bother to do anything about it.
Prep the remainder of Affirmative Defenses. Consider the following additional problem for identifying what is the claim and what is an affirmative defense:
§ 1: Prohibited Conduct: No person shall cause a retirement plan to engage in a transaction if he knows or should know that the transaction constitutes an agreement with a party in interest.
§ 2: Transactions Exempted The prohibitions provided in § 1 shall not apply to a contract or reasonable arrangements for office space.
A sues X under § 1 over a transaction that might be one for office space. What must plaintiff plead in his complaint?
Move to Additional Claims. Prep everything but Rules 41 and 55 and Jones, prepping Questions 1-7. Start putting together the pieces of the Holmes v. Clear Code puzzle; for tomorrow, identify the label for each claim.
Wednesday audio--B; A. Essay # 1 has been posted--make sure you have the updated version. Due next Wednesday in class. Can someone from Section B please send me a photo of today's board?
We will have a few final words on Twiqbal. Then moved to Responing to a Complaint: Responsive Pleadings. Prep both Failure of Proof Defenses and Affirmative Defenses (Questions 1-3) for Wednesday; I hope to get to the latter toward the end of class. For Thursday, we will finish Affirmative Defenses and begin New Claims.
Download here. (Typo corrected in the caption--please use the updated version).
Due at the beginning of class next Wednesday, February 11.
