Friday audio--Section A, Section B. Essay # 1 will post on Wednesday; each section has a different essay, so make sure you do the right one. Essay # 2 likely will post next Friday.
Circling back to claim preclusion and privity, because several people have raised this: VOA and Naruto offer examples of what are likely privity relationships. Slater set up Wildlife Personalities as the company through which he does business; in all likelihood, he is the sole member and he controls it. So claim preclusion would apply had Naruto sued Slater then sued Wildlife in a subsequent action, because they are in privity and thus essentially the same parties are involved in both actions. Similarly, Sohm likely set up VOA as the company through which he does business; we need more facts to be sure, but he probably is the sole member and controls its actions. So if VOA loses and then Sohm tries to bring a new lawsuit against BSO, claim preclusion likely would apply; although Sohm was not a party to VOA, because he and the company are in privity (he controls VOA), he would be bound by the judgment against it.
We continue with Motions. What does factual insufficiency mean and what should be the terms of a dismissal? Read FRCP 12(g) and (h) together. Review the three categories of 12(h) rules. Why the increasing non-waivability in each? Review the waiver puzzles, which should be easier now that we have gone through the waiver rules. Again, by giving them in advance, everyone should have prepared answers and be ready to volunteer. What is the purpose of FRCP 12(f) and how does it differ from 12(b)(6)?
Then move to How Much Detail? The Idea of Notice Pleading and An Alternative: Fact or Heightened Pleading. This gets us into what I said was the foundational question under the rules--how much detail is required in the complaint. These will cover Wednesday and Thursday of next week.
• How does Conley interpret FRCP 8(a)(2) and why? What is the purpose of the complaint and when is a complaint sufficient? Is Conley legal or factual sufficiency?
• What are the arguments for not requiring too much from the plaintiff in the initial pleading? What is "information asymmetry" and how does it affect the pleading standard?
• What does it mean to say a plaintiff "pleaded himself out of court?" Consider how a court should resolve a 12(b)(6) in the following cases.
• Godin includes in her complaint allegations that she hit the students.
• A, an African American non-attorney, applies for a position as an attorney in a law firm. The firm sends him a rejection letter reading, "We are not hiring you because you are not an attorney and because we do not hire African Americans as attorneys in our firm." A sues under an anti-discrimination law; the plaintiff must show race was a but-for cause for his non-hiring (that is, he must show that he would have been hired but-for the protected characteristic).
• How do the rules prevent pleading from becoming too loose and limited to simple notice?
• How does FRCP 9(b) differ from 8(a)(2)? FRCP 9(b) presents our first non-transsubstantive rule. Why have a special rule for fraud and mistake--what are the rationales for special treatment and do those rationales justify the special rule?
