Sample Answer-Section A

The court should grant defendant’s motion and dismiss both counts with prejudice and without leave to amend. Claim preclusion bars the claims by both parties.

FRCP 12(b)(6) Standard

A motion to dismiss for failure to state a claim tests the legal and factual sufficiency of a pleading stating a claim for relief. FRCP 12(b)(6). A claim is legally insufficient when the plaintiff asserts a legal right that does not exist on the facts pleaded. A claim is factually insufficient when the plaintiff fails to plead sufficient facts to show entitlement to relief.

The court looks at the four corners of the complaint. FRCP 12(d). The “four corners” includes three things. The court looks at the allegations in the complaint. It can view written instruments and documents attached to the pleading, which are treated as part of the pleading for all purposes. FRCP 10(c). And the court can take judicial notice of facts established in public records such as those of judicial proceedings, whose reliability cannot reasonably be questioned. If on a 12(b)(6) motion material not contained within (or treated as within) the four corners is presented to and not excluded by the court, the court must convert the motion to one for summary judgment. FRCP 12(d).

The court takes all nonconclusory allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. Vullo.

 Resolving as 12(b)(6)

 The claim preclusion defense relies on facts contained in the pleadings, declarations, and court decisions in Combs v. TEA (Tex. 2011), a decision of the Texas Supreme Court. The court may take judicial notice of these facts, as they appear in the records of judicial proceedings, thus their reliability cannot reasonably be questioned. Along with the facts pleaded in the Complaint, the facts established in the prior litigation are part of the complaint and can be considered on a 12(b)(6) motion.

 Claim Preclusion

Claim preclusion (at common law res judicata) prevents parties from litigating claims for relief that were or could have been litigated in a prior suit.

Claim preclusion requires that: 1) the prior litigation produced a final judgment on the merits; 2) the same parties or those in privity are involved in both actions; 3) the claims in the current action were brought or could have been brought in the prior action; and 4) the claims in the current action are part of the same cause of action as in the prior action. For the final prong, courts apply the “transactional approach,” under which parties cannot bring new claims arising from the same transaction or occurrence, meaning the same set of underlying historical facts or events. Courts apply the “logical relationship” test, looking to whether the essential facts of the claims in the second action are so logically connected to the claims in the prior action that considerations of judicial economy dictate that they be litigated together. Jones (2d Cir.).

Plaintiff concedes all but the second element of preclusion. As to the same-party prong, they argue that neither Airport nor Arabian was a party to Combs, which involved the Texas Entertainment Association (“TEA”). Thus, they argue, neither can be bound by the judgment. (Opposition).

Claim preclusion extends to situations in which the parties to the second action are in privity with the parties to first action. Privity exists when the parties to the first action expressly represents and protects the interests of non-parties who become parties in the second action. Privity treats the party to the second action as if it were party to that action. A non-party sharing “similar interests” in establishing defendant’s liability is not sufficient to bind a non-party to another party’s action. But a party in a representative capacity can bind a non-party. (Glannon) 

Arabian

 Arabian is a member of the TEA. (Compl. ¶ 6). The TEA is a trade association for the adult entertainment industry, representing the legal, business, and economic interests of its members. (Compl. ¶ 2; Motion ¶ 1). TEA litigated Combs on behalf of its members, to protect those legal interests. Arabian is one of those members and thus one of those on whose behalf TEA litigaion. Arabian was in privity with TEA, therefore it is as if it were party to Combs and it is bound by that judgment.

Airport

The analysis is more complicated as to Airport, which is not a member of the TEA. (Compl. ¶ 3). Nevertheless, Airport maintains substantial connections to TEA and its members, such that TEA can be said to have represented Airport’s interests in the first action. Claim preclusion therefore applies to its claims.

The TEA consists of forty adult cabaret establishments (Motion ¶ 2). Six of TEA’s member establishments, including Arabian, are part of the Bucks Wild chain of adult nightclubs. (Motion ¶ 3). Those clubs are in privity with TEA and TEA represented the interests of those six clubs in Combs. As the seventh Bucks Wild club (Compl. ¶ 1), Airport’s interests were represented their the other clubs in the chain through TEA.

Curtis Wise is the sole owner, member, and operator of Airport. Wise also maintains an ownership interest the six other Bucks Wild Clubs. (Compl. ¶ 4). Although not a party to Combs, Wise’s interests were protected—TEA represented the interests of the six clubs Wise owns and thus the interests of Wise. Because Wise is the sole owner and operator of Airport, by representing Wise’s interests TEA also represented Airport’s interests.

Terms of Dismissal

 In granting a motion to dismiss, a court can dismiss without prejudice (meaning with leave to amend) or with prejudice (meaning without leave to amend). Leave to amend allows the pleader an opportunity to correct the defects in the pleading. A court dismisses without leave to amend when the pleader cannot correct the defects, such as when the claim is legally insufficient.

The court should dismiss both plaintiffs’ claims with prejudice and without leave to amend. Airport and Arabian’s claims are barred by claim preclusion because TEA represented the interests of both parties in the prior action. Nothing either plaintiff could do in a new pleading can change that fact.

Sample Answer--Section B

The motion is granted in part and denied in part. The motion is granted as to Arabian and the claim against it is dismissed with prejudice. The motion is denied as to Airport.

FRCP 12(b)(6) Standard

A motion to dismiss for failure to state a claim tests the legal and factual sufficiency of a pleading stating a claim for relief. FRCP 12(b)(6). A claim is legally insufficient when the plaintiff asserts a legal right that does not exist on the facts pleaded. A claim is factually insufficient when the plaintiff fails to plead sufficient facts to show entitlement to relief.

The court looks at the four corners of the complaint. FRCP 12(d). The “four corners” includes three things. The court looks at the allegations in the complaint. It can view written instruments and documents attached to the pleading, which are treated as part of the pleading for all purposes. FRCP 10(c). And the court can take judicial notice of facts established in public records such as those of judicial proceedings, whose reliability cannot reasonably be questioned. If on a 12(b)(6) motion material not contained within (or treated as within) the four corners is presented to and not excluded by the court, the court must convert the motion to one for summary judgment. FRCP 12(d).

The court takes all nonconclusory allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. Vullo.

Resolving as 12(b)(6)

The claim preclusion defense relies on facts contained in the pleadings, declarations, and court decisions in Combs v. TEA (Tex. 2011), a decision of the Texas Supreme Court. The court may take judicial notice of these facts, as they appear in the records of judicial proceedings, thus their reliability cannot reasonably be questioned. Along with the facts pleaded in the Complaint, the facts established in the prior litigation are part of the complaint and can be considered on a 12(b)(6) motion.

Claim Preclusion

Claim preclusion (at common law res judicata) prevents parties from litigating claims for relief that were or could have been litigated in a prior suit.

Claim preclusion requires that: 1) the prior litigation produced a final judgment on the merits; 2) the same parties or those in privity are involved in both actions; 3) the claims in the current action were brought or could have been brought in the prior action; and 4) the claims in the current action are part of the same cause of action as in the prior action. For the final prong, courts apply the “transactional approach,” under which parties cannot bring new claims arising from the same transaction or occurrence, meaning the same set of underlying historical facts or events. Courts apply the “logical relationship” test, looking to whether the essential facts of the claims in the second action are so logically connected to the claims in the prior action that considerations of judicial economy dictate that they be litigated together. Jones (2d Cir.).

Plaintiff concedes all but the second element of preclusion. As to the same-party prong, they argue that neither Airport nor Arabian was a party to Combs, which involved the Texas Entertainment Association (“TEA”). Thus, they argue, neither can be bound by the judgment. (Opposition).

Claim preclusion extends to situations in which the parties to the second action are in privity with the parties to first action. Privity exists when the parties to the first action expressly represents and protects the interests of non-parties who become parties in the second action. Privity treats the party to the second action as if it were party to that action. But privity is rare, the exception rather than the rule. It is not enough that a non-party shares “similar interests” to a party such that it can be bound from pursuing future independent litigation.

Arabian

Arabian is a member of the TEA. (Compl. ¶ 6). The TEA is a trade association for the adult entertainment industry, representing the legal, business, and economic interests of its members. (Compl. ¶ 2; Motion ¶ 1). TEA litigated Combs on behalf of its members, to protect those legal interests. Arabian is one of those members and thus one of those on whose behalf TEA litigaion. Arabian was in privity with TEA, therefore it is as if it were party to Combs and it is bound by that judgment.

Airport

Airport is not in privity with TEA, therefore it cannot be bound by the prior judgment.

Airport is not a member of the TEA (Compl. ¶ 3). Therefore the TEA cannot be said to have “expressly represented” Airport’s interests.

The argument for privity relies on either of two possible relationships, both attenuated and none establishing privity between the TEA, the party to the first action, and Airport, the party to the current action. The first relationship is that Airport is part of a chain of seven Bucks Wild establishments; the remaining six are members of the TEA (Motion ¶ 3) and thus in privity with it. The second relationship involves Curtis Wise, the sole owner, member, and operator of Airport. (Compl. ¶ 4). Wise retains an ownership interest in those other six Bucks Wild clubs (Compl. ¶ 4), which, again, are in privity with the TEA and thus represented in the TEA.

But the TEA and Airport do not enjoy a representative relationship. Privity exists between the TEA and its members, including the six Bucks Wild clubs other than Airport (including Arabian). The argument for applying privity requires an extension from the six clubs to Airport, a non-member club that happens to be part of the same chain. Or it requires an extension from the six clubs to Wise, one of its owners who is not a party to the current action, to Airport, a non-member club that Wise happens to own. Privity cannot extend that far. At best, Airport shares similar interests to the six other clubs and the TEA. But similar interest does not establish the necessary representative relationship.

 Terms of Dismissal

In granting a motion to dismiss, a court can dismiss without prejudice (meaning with leave to amend) or with prejudice (meaning without leave to amend). Leave to amend allows the pleader an opportunity to correct the defects in the pleading. A court dismisses without leave to amend when the pleader cannot correct the defects, such as when the claim is legally insufficient.

Arabian’s claims are dismissed with prejudice and without leave to amend. Its claims are barred by claim preclusion because TEA represented Arabian’s interests in the prior action. Nothing Arabian could do in a new pleading can change that fact.

Because claim preclusion does not bar Airport’s claims, those can continue.

For Thursday, February 12

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.

Complaints

The complete chart for the Complaint. Obviously you will fill in the details; this provides the basic framework.

 

 

For Wednesday, February 11 (Revised)

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.

Essay # 1 (Both Sections) (Corrected)

Download here. (Typo corrected in the caption--please use the updated version).

Due at the beginning of class next Wednesday, February 11.

Writing Reminders in advance of Essay # 1

In advance of Essay # 1 posting (and ## 2 and 3 coming next week), some further reminds about the importance of good, organized writing. I refer you to Good Writing and Talking Procedure and the sample essay and answer, which shows how you should approach, organize, and analyze problems. In addition, this doc reprints two Twitter threads by Joe Regalia on writing tips--the first on Justice Kagan's writing and the second a general, advanced tips.

A few additional points: If you are asked to argue or resolve a motion, your starting point should be your conclusion--grant or deny (or grant in part and deny in part). Your real analysis begins with the motion presented--what the motion seeks, the rule it comes from, what the rule it says, and the standard. That will take you into whatever other rules and analysis governs the answer to the motion. You can see this in the sample answer.

For Wednesday, February 4

Friday audio: Section B, Part I; Section B, Part II. Section A, Part I; Section A, Part II.

Essay # 1 will post on Wednesday. 

Complete The Future of Federal Pleading. With respect to the idea of "obvious alternative explanations," consider what the Court said in NRA v. Vullo:

The NRA sued a NY state official for a First Amendment violation, alleging that the official had threatened to investigate (or drop investigations against) insurance companies if they stopped providing services to the NRA. The official argued that an "obvious alternative explanation" for these actions was pursuing violations of state law and the ordinary give-and-take of negotiation between government and targets of an investigation. At pp. 16-17, the Court said this:

[T]his Court cannot simply credit Vullo’s assertion that “pursuing conceded violations of the law,” Brief for Respondent 29, is an “ ‘obvious alternative explanation’ ” for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns, id., at 37, 40, 42 (quoting Iqbal, 556 U. S., at 682). Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

For Friday, January 30 (Double Session)

Thursday audio--B; A. Essay # 1 will be posted at 12:30 next Wednesday, February 4; due at the start of class on Wednesday, February 11.

Don't get too caught up in the floor/ceiling thing--it is more a way of thinking about how judges view the rules and how they should view the rules. If the complaint is larded up with a lot of extraneous pleading-as-press-release stuff, it is improper and subject to having the extra stuff struck under 12(f). It would be better if Judge Merryday recognized the problem as the pleading containing immaterial or scandalous matter for 12(f) purposes, rather than saying the complaint exceeds the short-and-plain statement 8(a)(2) allows. But in Trump we end up in the same place--the court struck the pleading (or the improper parts of it) under 12(f). The issue is what the basis should have been for striking. Again, the courts do a lot of stuff in the margins of the rules to make the system hum along, even if not textually warranted.

Corrected schedule for tomorrow's double classes:

    Section B: 9:30-10:40; 20-minute break; 11-12:10

    Section A: 1-2:10; 20-minute break; 2:30-3:40. 

Prep all of Heightened Pleading; be ready to discuss the arguments for and against special treatment of fraud. Prep Present and Future; focus on Twombly and Iqbal and the new standard it created, including Questions 1-4. Don't worry about applying the standard to VOA and Godin; save that for next week. Be ready to discuss how the Court analyzed the pleadings in Twombly and Iqbal. 

 

For Thursday, January 29

Wednesday audio--B; A. Essay # 1will post next Wednesday (Feb. 4) and due the following Wednesday (Feb. 11). Clarifiying schedule for Friday make-ups:

    Section A: 9:30-10:40; 20-minute break; 11-12:10

    Section B: 1-2:10; 20-minute break; 2:30-3:40. 

We pick up with FRCP 12(f), so review Trump and Doe.

For tomorrow: Prep The Idea of Notice Pleading and  Fact or Heightened Pleading (except Swierkiewicz). FRCP 9(b) (and § 78u-4(b)) represent our first non-trans-substantive rules. Consider the likely/possible rationales for treating fraud and mistake differently than other claims and whether those rationales justify special treatment.

For our double session Friday, we wil finish Fact or Heightened Pleading (including Swierkiewicz), then move to Present and Future of Federal Pleading,

Another Complaint

 (H/T: Richard). Another example of a complaint, to see structure, framing. etc.