12(b)(6) in Trump v. WSJ

The district court granted the Wall Street Journal's motion to dismiss President Trump's action arising from a WSJ article about the Jeffrey Epstein "birthday book." (This is the action that produced Section B's Essay #5).

This is a great example of how a court handles:

    • What it can consider on the 12(b)(6), including whether the underlying article is incorporated into the complaint (it is) and whether the birthday book and Trump's birthday letter are incorporated (they are not).

    • Judicial notice of certain congressional documents.

    • 12(b)(6) analysis of the allegations in the complaint, including disregarding conclusory allegations and determining whether non-conclusory allegations meet the substantive law.

    • The terms of dismissal 

    • The decision with respect to attorney's fees under Florida's anti-SLAPP law (this is the law in play in several of the Erie puzzles we will work through this week).

Essay # 10 (Both Sections)

Download here. Due outside my office by 11 a.m. (Section B) and 3 p.m. (Section A) next Monday, April 20.

Essays ## 8 and 9 (Both Sections)

Download here. Due outside my office by 11 a.m. (Section B) and 3 p.m. (Section) next Monday, April 20.

Both essays arise from the same case. Make sure you write on the correct essay and the correct assignment within that essay.

Final points on personal jurisdiction

Two final things on personal jurisdiction:

• Here is the board with the Shoe algorithm. This gives the basic framework of your RE, but you must fill in with citations and actual language and details from cases. You will not get complete credit if you regurgitate the basics of the outline without the details.

 

• This is a bit dated (from 2006) given the run of recent cases, but it is amazing:

For Wednesday, April 15

Friday audio--Section B, Section A. Essays ## 6 and 7 due in class Wednesday. Essays ## 8, 9, and 10 posted on Monday, due at what would have been class time (11 a.m., Section B, 3 p.m., Section A) on Monday, April 20 in my office.

I posted a photo of the board for Erie, below. Work through this in conjunction with the Glannon reading to understand how the non-REA portion works. Read Berk v. Choy, especially the majority; this is the Court's most recent Erie case (from January) and offers a nice explanation of the REA analysis (also the first majority on the issue in quite awhile). Justice Jackson's concurrence agrees with the basic analysis; she believes a different rule controls the issue (and she probably has the better of the issue).

Prep the Erie Puzzles. As you will see, the problems hit on each prong of analysis. Prep them as if you were writing an essay, including fully providing the RE, not just the A we will focus on in class. Be sure to consider and be ready to discuss the procedure in which the issues arise--how will the issue be raised and presented and argued to the court?

 

Creative Projects & Q&A Review

Per the grading information:

• Q&A Review Sessions on Thursday, April 23 (the Thursday before the exam). Section B at 10 a.m. and Section A at 1 p.m. Both in RDB 2008. Everyone is welcome to attend both sessions.

• Creative projects will be displayed and/or presented at each Section's session. Visual displays will be put up around the room. Audio/Video works will be played on-screen (please send me links or files a couple days prior). Live performances will be performed (reading poems, performing songs, whatever). This will take about the first 30 minutes of the session, followed by Q&A.

• The Q&A is just that--your chance to ask questions. I have no prepared comments. You can stay for as much or as little of the session as you want. You may use computers. I will not record it.

 • The exam will post at 9 a.m., Monday, April 27. It is due in hard copy at my office by 1 p.m. Tuesday, April 28.

• Everyone will answer 3 questions--two 1000-word essays and one short-answer (less than 40 words).

For Friday, April 10

Thursday audio--Section B, Section A.

Section B meets at 11 tomorrow in the Courtroom; the first 3-4 rows will be set aside for you. Admitted students will observe the class, so please be especially prepared and participatory in front of your future colleagues. Section B meets at 2 (instead of 1).

We turn to Erie, which functions as something of a capstone and review of the class. The issue is what law applies. But in working through problems, you necessarily have to think about the entire litigation process--how issues are raised, the rules that apply to those issues, etc.

Prep Intro (focusing on Erie and § 1652) and Procedure (focusing on Hanna and § 2072) and all the associated questions. Work through the process under §§ 2072-2074 and how the FRCP are drafted and passed. For tomorrow, we will introduce and put together the Erie and Hanna framework tomorrow. Next week we will apply that to the puzzles in the Puzzle Document.

For Thursday, April 9

Wednesday audio--Section B (first ~20 minutes cut off), Section A. Essays ## 6 and 7 posted.

Those assigned Essays ## 8, 9, and 10: Would you rather have it posted this Friday (due our final day of class) or next Monday (due the last day of class in my office, even though we do not meet).

If you are interested, here is Mallory, in which the Court held that a state could compel consent to general jurisdiction in its registration statute. And here is Fuld, in which the Court did not decide what, if any, limits the 5th Amendment imposes on Congress' power to grant personal jurisdiction.

Question 8 on Glannon p.149 illustrates the type of Quasi-in-Rem II action that survives Shaffer--plaintiff seizing property in State B to enforce a (valid) judgment from State A. One way to think about is that Ito's property in New Mexico (his minimum contact with that state) is related to the enforcement action in New Mexico, satisfying Shaffer. The enforcement action is a distinct civil action in New Mexico from the underlying fraud action in Emporia. And the property is related to that enforcement action as a possible way plaintiff can enforce the valid judgment.

Prep Venue, Transfer Venue, and FNC. I hope to finish that in one day. For tomorrow:

The Atlantic Marine excerpt omits FN 6 (on the word "consideration," at the end of Sentence 1 of ¶ 1 of Part III.A). This offers a different statement of the 3-part balancing test on Glannon p.183. The footnote reads, in full, as follows. You can use either version (or both) in your analysis.

Factors relating to the parties’ private interests include “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Piper Aircraft Co. v. Reyno, (internal quotation marks omitted). Public-interest factors may include “the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Ibid. (internal quotation marks omitted). The Court must also give some weight to the plaintiffs’ choice of forum. 

 

 

 

We then will start Erie on Friday. 

Essay # 6 (Both Sections)

Download here. Due in class Wednesday, April 15.

Essay # 7 (Both Sections)

Download here. Due on Wednesday, April 15.

Sample Answer: Essay # 5 (Sec. A)

Available outside my office.

Mean: 32.85

Median: 36

High: 45

Sample answer after the jump.

Sample Answer: Essay # 5 (Sec. B)

Available outside my office.

Mean: 29.14

Median: 30

High: 35

Sample answer after the jump. 

For Wednesday, April 8

Friday audio--Section B, Section A. Essays ## 6 and 7 will post at 12:30 Wednesday (please note the correction on which essays). Essays ## 8, 9, and 10 will post on Friday or the following Monday. Again, all essays will be due before classes end and reading week begins.

We will cut 10 minutes off class on Wednesday and Friday of next week; we will make it up the following week.

Section B: Remember that we are flipping class with Crim; we will meet at 9 on Wednesday in RDB 2008. Remember that next Friday's class will be in the Courtroom.

Prep the rest of Personal Jurisdiction--Property and Review. We will begin with whether the contacts in Ford "relate to" the claim. What make "relate to" entail beyond what Ford did? Consider: Defendants travel to TX to enter into a contract to provide transportation services for a pipeline project in Colombia; the helicopter crashes in Colombia; plaintiffs sue in TX.

How is Ford not the old "doing business" general jurisdiction? Note Justice Breyer's concerns in Nicastro for Appalachian potters, Brazilian coops, and Egyptian shirtmakers; how should the Shoe algorithm deal with those concerns?

I want to do a short discussion at the end about PJ in federal court. Go back to FRCP 4(k). Consider 18 U.S.C. § 2333, authorizing suit against foreign terrorist organizations, and § 2334, which establishes jurisdictional rules for such actions. Thinking about how Shoe and World Wide define what the the 14th Amendment does, what is different about the due process analysis in federal court and how might that affect the PJ analysis?

For Friday, April 3

Thursday audio--Section A. Essays ## 7 and 8 will post next Wednesday, April 8, due Wednesday, April 15.

Prep all cases in Modern Analysis (Nicastro, Walden, BK), then prep General Jurisdiction Revisited. Prep the puzzles and questions ahead of time.

On the subject of Long Arm Statutes: This short article includes an appendix identifying the long-arm provision for each state, including where it appears (Constitution, statute, court rules) and whether it is an enumeration, a catch-all, or a hybrid. Nice resource to have.

In returning to Daimler, the casebook omits two footnotes that are worth highlighting, for understanding the Shoe Algorithm and how the analysis works. Both are on p.173:

• FN 19 is at the end of ¶ 2, on the word State.

We do not foreclose the possibility that in an exceptional case, see, e.g., Perkins, described supra, at 10–12, and n. 8, a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State. But this case presents no occasion to explore that question, because Daimler’s activities in California plainly do not approach that level. It is one thing to hold a corporation answerable for operations in the forum State, see infra, at 23, quite another to expose it to suit on claims having no connection whatever to the forum State. 

• FN 20 is at the end of Part IV.B, on the word California.

To clarify in light of Justice Sotomayor’s opinion concurring in the judgment, the general jurisdiction inquiry does not “focu[s] solely on the magnitude of the defendant’s in-state contacts.” Post, at 8. General jurisdiction instead calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, “at home” would be synonymous with “doing business” tests framed before specific jurisdiction evolved in the United States. See von Mehren & Trautman 1142–1144. Nothing in International Shoe and its progeny suggests that “a particular quantum of local activity” should give a State authority over a “far larger quantum of . . . activity” having no connection to any in-state activity. Feder, supra, at 694.Justice Sotomayor would reach the same result, but for a different reason. Rather than concluding that Daimler is not at home in Cali- fornia, Justice Sotomayor would hold that the exercise of general jurisdiction over Daimler would be unreasonable “in the unique circumstances of this case.” Post, at 1. In other words, she favors a resolution fit for this day and case only. True, a multipronged reasonableness check was articulated in Asahi, 480 U. S., at 113–114, but not as a free-floating test. Instead, the check was to be essayed when specific jurisdiction is at issue. See also Burger King Corp. v. Rudzewicz, 471 U. S. 462, 476–478 (1985). First, a court is to determine whether the connection between the forum and the episode-in-suit could justify the exercise of specific jurisdiction. Then, in a second step, the court is to consider several additional factors to assess the reasonableness of entertaining the case. When a corporation is genuinely at home in the forum State, however, any second-step inquiry would be superfluous.Justice Sotomayor fears that our holding will “lead to greater unpredictability by radically expanding the scope of jurisdictional dis- covery.” Post, at 14. But it is hard to see why much in the way of discovery would be needed to determine where a corporation is at home. Justice Sotomayor’s proposal to import Asahi’s “reasonableness” check into the general jurisdiction determination, on the other hand, would indeed compound the jurisdictional inquiry. The reasonableness factors identified in Asahi include “the burden on the defendant,” “the interests of the forum State,” “the plaintiff’s interest in obtaining relief,” “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,” “the shared interest of the several States in furthering fundamental substantive social policies,” and, in the international context, “the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction.” 480 U. S., at 113–115 (some internal quotation marks omitted). Imposing such a checklist in cases of general jurisdiction would hardly promote the efficient disposition of an issue that should be resolved expeditiously at the outset of litigation.