Wednesday audio--Section A, Section B. Essay # 3 will post at 12:30 tomorrow, due in class on Thursday, February 20.
We pick-up where we left off: The court has struck an insufficient defense (as in Zielinski) or plaintiff sees that defendant failed to deny some allegations. What is plaintiff's procedural move? How can each party (plaintiff or defendant) use FRCP 12(c)?
The next two days will be spent on Affirmative Defenses and New Claims. I am going to give you stuff for both days now and advise you to prep all for tomorrow, although we will not get too far into new claims until Friday. So prep everything except FRCP 41 and 55.
For Affirmative defenses, the following offers a good definition: "Allegations or statements of new matter, in opposition to a former pleading, which, admitting facts in such former pleading, shows cause why they should not have their ordinary legal effect." What does "they" refer to? What former pleading? What is the ordinary legal effect? Consider:
• What affirmative defenses are available and where do they come from? What affirmative defenses did Winston include? What is wrong with how they were pleaded in Winston?
• What is the difference between a fact being an element of a claim and an element of an affirmative defense? How do you figure out which something is? How does it affect pleading?
• How could a fact be part of a claim or defense and how does it affect pleading in the following? Consider how pleading is affected by whether facts are part of the claim or the defense:
• Debt: 3 facts: 1) Money borrowed; 2) Money due; 3) Money paid or not
• Sexual Battery: 1) Sex; 2) Consent or not
• How did Winston arguably err in his consent defense? See ¶ 49 and the affirmative defenses.
• What is the connection between 12(b)(6) and 8(c)? What are the procedural mechanisms for a defendant ask the court to decide on an affirmative defense? Consider the example of a statute of limitations defense (that a claim was filed more than two years after the events).
Late tomorrow and Friday we will turn to new claims.
• What rules govern in pleading additional claims? What happens in response to those additional claims? Who can those claims be brought against? What happened procedurally in Jones?
• What is the common standard for bringing additional claims?
Starting Friday, we will work through the following case (this expands on the problem
in Glannon pp. 246-47). Map out all the claims, decide what type they are,
and whether they must, can, or cannot be brought. (As always, assume
jurisdiction over each and focus only on the FRCP). Everything arises
from the deal between Holmes and Clear Code to produce some code for
Holmes. Consider the first procedural steps in all of this.
• Holmes against Clear Code for breach of contract for failing to provide working code.
• Holmes against Cosgrove, Clear Code's former president, for fraud in the inducement for inducing Holmes to enter into the contract
• Clear Code against Holmes for non-payment on this contract.
• Clear Code against Holmes for non-payment on a prior job
• Cosgrove against Clear Code for indemnification of any judgment Cosgrove must pay to Holmes.
• Cosgrove against Clear Code for wrongful termination (Clear Code fired him after the Holmes deal went bad).
• Clear Code against Cosgrove to enforce a non-compete, to stop Cosgrove from working for a competitor
• Clear Code against its insurance provider, for indemnification under their insurance contract.
• Clear Code against Jasper for making bad code (Clear Code sub-contracted the Holmes job to Jasper).
• Jasper against Clear Code for non-payment.
• Jasper against Clear Code for non-payment on a past job.
• Jasper against High Tech for selling a defective computer (which caused Jasper's bad code).
• Jasper against Holmes for Quantum Meruit (to recover the value of the work done on the project)
• Jasper against Holmes for Defamation (Holmes told people Jasper was a bad coder)
• Holmes against Jasper for Tortious Interference with his original deal with Clear Code.
