Wednesday audio--Section A, Section B.
To be clear: Everything we have been talking about (FRCP and common law, such as preclusion) goes into how the plaintiff frames her complaint. A lawyer must consider and analyze all of this in the course of creating the case and then again if it arises in litigation.
For example, if VOA must analyze for itself whether the contract and copyright claims are transactionally related; that decision affects whether it includes the claims in the action. If VOA decides they are related, it will bring them together. If it decides they are not related, it can split them into two cases; if it does that, imay have to analyze that issue all over again before the second court, if BSO argues that the copyright claim is transactionally related and the second case must be dismissed.
Recall the 3 problems from last week:
• A, a cis-gender girl, sues the
Connecticut High School Athletic Association over its policies allowing
athletic participation according to an athlete's gender identity and
presdentation; A claims those policies constitute sex discrimination. A
finished second in a race to X (a trans-gender girl). One remedy A wants
is an injunction ordering the association to alter the state record
books be re-written to remove X as the winner and record A as the
winner.
• Ethlyn Hall, an elderly woman, died; she left behind two adult children, Elsa and Sam, and makes Elsa the executrix of her estate. The Estate wants to bring a claim against Sam for conversion, alleging Sam took some of Ethlyn's property for his own use. Sam wants to bring a claim against Elsa for interfering with his relationship with their mother. How can these claims be litigated together or near to one another?
• Zacek came away with an historic home run ball at a Marlins game. Matus claims that Zacek grabbed him and wrestled the ball out of his hands. Davidov claims he was the first person to have the ball until he was mobbed by a group of people and lost control of the ball. Matus and Davidov believe each has sole ownership of the ball and each believes that Zacek unlawfully took possession of it. Both would pursue claims of conversion against Zacek.
What rules allow for the protection of non-parties X and Matus?
What is consolidation? How is it different than joinder, given the text of those rules? When would consolidation apply to:
• Hall (above)
• Morgan's claims against Walmart and Jones' claims against Walmart?
• If Matus brings his own suit against Zacek.
Then move to Responding to a Pleading: Motions. Prep the assigned provisions in FRCP 4, 5, 7, 8, 10, and 12(a), 12(b), and 12(d). Look at the complaint and motion in Naruto, along with Glannon pp. 401-17 and PAE.
• What is the process and requirements for filing a motion?
• How does service of the initial complaint operate? What is the purpose and effect of service?
• What are the defendant's options in responding to a complaint?
• What does a defendant seek to do with a motion under 12(b)? What are the issues that can be raised on such a motion? What is the difference between 12(b)(4) and (5)?
• What is the defense argument in the motion in Naruto?
• Claims or complaints can be dismissed with prejudice or without prejudice. What does that mean? When should a dismissal be with prejudice and when without prejudice?
• What is argued on 12(b)(6)? How does 12(b)(6) relate to 8(a)(2)? What does the court analyze on a 12(b)(6) motion? How does FRCP 12(d) affect that?
• A complaint can be legally or factually insufficient. What is the difference? How does that map onto dismissal with or without prejudice?
