For Wednesday

Friday audio--Section B (Section A didn't record--don't worry, same material).

Upcoming key dates:

    • No class next Thursday.

    • Essay # 4 due on Wednesday.

    • Essay # 5 due on Friday.

    • Prelim Exam posted on Thursday; due on March 20.

    • Essay # 6 will post on Thursday, March 20.

Review both sections of Discovery--everything we have looked at so far, plus FRCP 37 and 45 and Seattle Times. 

    • Where does the obligation for parties to comply with discovery rules come from? What about non-parties?

    • How does the exchange of information work? What does each party do? When and how does the court become involved?

    • What is the mechanism for enforcing discovery obligations?  What sanctions are available and how does the court decide on a sanction? Note the special treatment for sanctions for violation FRCP 35 and 45.

I hope to get to Coca Cola by late Wednesday; if not, this will be our focus on Friday.

    Coca Cola Bottling Co. (Bottling) contracts with Coca Cola Co. (Coca) to bottle Coca Cola. Coca sends pre-mixed syrup to the bottler; the bottler mixes the syrup with carbonated water, bottles it, and ships it. The contract sets a price at which Bottler purchases syrup for "Coca Cola." The formula for Coca Cola is among the best-kept trade secrets in American business, particularly the composition of the mystery ingredient known as "Merchandise 7X." Two  people in the company at any time know the forumla for Merchandise 7X. The written formula is locked in a bank vault that can be opened only on resolution of the company Board of Directors (which requires a meeting and a vote, which takes some time but is not burdensome).

    Coca introduces "New Coke" and "Diet Coke" as new products. The secret ingredient in those products is "7X-100." As with 7X, two people in the company know the 7X-100 formula, the written formula is locked in a vault and opening the vault requires a resolution of the Board of Directors. Coca sells the syrup for New Coke and Diet Coke to Bottler, but at a substantially higher price than the contract price.

    Bottler sues Coca for breach of contract, arguing that Coca must sell New Coke and Diet Coke syrup at the contract price for Coca Cola. Bottler seeks to obtain discovery of the formulae for Merchandise 7X and 7X-100; Coca does not want to turn this information over.

    Be prepared to litigate for both sides:

        • Was Coca required to disclose under 26(a)?

        • How can Bottler seek the formula and how can Coca resist?

        • Must the formulae be provided and on what terms?

        • What can Coca do if the court orders it to provide it? What can the court do in response?

 

Essay # 5 (Both Sections) Posted

Download Regular Type; Download Large Type. This one is too large and has too many pieces to post here. Due in class on Friday, March 14.

My apologies for not posting this as planned.

For Friday

Thursday audio--Section A, Section B. Section A meets in RDB 1000. Only 70 minutes tomorrow.

We continue with Discovery Process; plus, read FRCP 45 in addition to reviewing everything else.

Here, here, and here are some sample discovery documents, just to give you a picture of how they look and sound.

    • Why have the proportionality requirement in Rule 26(b)(1)? How does FRCP 26(b)(2) relate to 26(b)(1)?

    • Review the rules relating to the various discovery devices. Is there a particular order in which to use each device?

    • What is unique about FRCP 35 compared with other rules? What does Schlagenhauf tell about the scope and meaning of FRCP 35?

    • Where does the obligation for parties to comply with discovery rules come from? What about non-parties?

We will not get to Coca Cola until Wednesday of next week, but reminder of the problem. 

    Coca Cola Bottling Co. (Bottling) contracts with Coca Cola Co. (Coca) to bottle Coca Cola. Coca sends pre-mixed syrup to the bottler; the bottler mixes the syrup with carbonated water, bottles it, and ships it. The contract sets a price at which Bottler purchases syrup for "Coca Cola." The formula for Coca Cola is among the best-kept trade secrets in American business, particularly the composition of the mystery ingredient known as "Merchandise 7X." Two  people in the company at any time know the forumla for Merchandise 7X. The written formula is locked in a bank vault that can be opened only on resolution of the company Board of Directors (which requires a meeting and a vote, which takes some time but is not burdensome).

    Coca introduces "New Coke" and "Diet Coke" as new products. The secret ingredient in those products is "7X-100." As with 7X, two people in the company know the 7X-100 formula, the written formula is locked in a vault and opening the vault requires a resolution of the Board of Directors. Coca sells the syrup for New Coke and Diet Coke to Bottler, but at a substantially higher price than the contract price.

    Bottler sues Coca for breach of contract, arguing that Coca must sell New Coke and Diet Coke syrup at the contract price for Coca Cola. Bottler seeks to obtain discovery of the formulae for Merchandise 7X and 7X-100; Coca does not want to turn this information over.

    Be prepared to litigate for both sides:

        • Was Coca required to disclose under 26(a)?

        • How can Bottler seek the formula and how can Coca resist?

        • Must the formulae be provided and on what terms?

        • What can Coca do if the court orders it to provide it? What can the court do in response?

 

For Thursday

Wednesday audio--Section A, Section B. Essay # 4 posted today and is due next Wednesday. Essay # 5 will post at 12:30 tomorrow and is due outside my office next Thursday. Prelim Examn will post next Thursday and is due in class on Thursday,  March 20.

Quick point on the role of the 4(m) period in FRCP 15(c): The issue is the period of time, not service. The plaintiff must serve the original complaint on any properly named defendants; that is what 4(m) is about. Rule 15(c) is concerned with whether the amendment will relate back; it uses the 4(m) period as the period in which the to-be-added defendant must have received any notice. So in analyzing whether a pleading relates back, the question is "did the to-be-added defendant receive the notice required by (C)(i) and (ii) within the 4(m) period (whatever days that entails."

Also, on suing early in John Doe cases: The point was to explore the plaintiff's strategy in dealing with the fact that lack of notice is not a mistake so you can't relate a Doe pleading back. If you know you must sue Doe and you can't relate back, what can you do in your lawsuit that will allow you to identify Doe and amend? This is independent of the ability to sue anyone else (such as the City); any claim against the city is separate from the claim I want to bring against the officer once I learn his name and amend.

We turn to Managerial Judging, then Discovery Process for tomorrow; prep all of that for the next two days.

    • What is managerial judging and how does FRCP 16 contribute to that? What does FRCP 16 require or allow the judge to do?

    • How does discovery square with the adversary system? How does adverseness work into discovery? How do parties protect their interests within discovery? Consider the example of making and responding to document requests under Rule 34 and objecting in a deposition. How might you, as plaintiff, frame a document request in Godin or in Morgan.

    • What is the connection between discovery and notice pleading? If we think the discovery process is out of control, how might we control it?

    • What is disclosure and what is the standard for disclosure? How is that different than the ordinary standard for what is discoverable? Why a different standard for disclosure?

    • Why have the proportionality requirement in Rule 26(b)(1)? How does FRCP 26(b)(2) relate to 26(b)(1)?

    • Review the rules relating to the various discovery devices. Is there a particular order in which to use each device?

    • What is unique about FRCP 35 compared with other rules? What does Schlagenhauf tell about the scope and meaning of FRCP 35?

    • Where does the obligation for parties to comply with discovery rules come from? What about non-parties?

    • What is the process for seeking, obtaining, and responding to discovery? When and how does the court become involved? How does the court ensure compliance?

We will cap-off the discussion of Discovery with Coca Cola Bottling Co. v. Coca Cola Co. (You probably cannot fully analyze the problem until we get through this week's materials, but you have it ready to go). Keep this on the back burner:

    Coca Cola Bottling Co. (Bottling) contracts with Coca Cola Co. (Coca) to bottle Coca Cola. Coca sends pre-mixed syrup to the bottler; the bottler mixes the syrup with carbonated water, bottles it, and ships it. The contract sets a price at which Bottler purchases syrup for "Coca Cola." The formula for Coca Cola is among the best-kept trade secrets in American business, particularly the composition of the mystery ingredient known as "Merchandise 7X." Two  people in the company at any time know the forumla for Merchandise 7X. The written formula is locked in a bank vault that can be opened only on resolution of the company Board of Directors (which requires a meeting and a vote, which takes some time but is not burdensome).

    Coca introduces "New Coke" and "Diet Coke" as new products. The secret ingredient in those products is "7X-100." As with 7X, two people in the company know the 7X-100 formula, the written formula is locked in a vault and opening the vault requires a resolution of the Board of Directors. Coca sells the syrup for New Coke and Diet Coke to Bottler, but at a substantially higher price than the contract price.

    Bottler sues Coca for breach of contract, arguing that Coca must sell New Coke and Diet Coke syrup at the contract price for Coca Cola. Bottler seeks to obtain discovery of the formulae for Merchandise 7X and 7X-100; Coca does not want to turn this information over.

    Be prepared to litigate for both sides:

        • Was Coca required to disclose under 26(a)?

        • How can Bottler seek the formula and how can Coca resist?

        • Must the formulae be provided and on what terms?

        • What can Coca do if the court orders it to provide it? What can the court do in response?

Essay # 4 (Sec. B)

Download Regular Print; Download Large Print. Read after the jump. Due in class next Wednesday, March 12.

Essay # 4 (Sec. A)

Download Regular Type; Download Large Type. Read after jump. Due in class next Wednesday, March 12.

Welcome Back: Essays and Upcoming

Welcome Back:

Graded Essay # 3 available outside my office (both sections).

Scores on Essay # 3:

    Section B: Mean:16.25; Median: 16 

    Section A: Mean: 17.75; Median: 17

Essay # 4 will post at 12:30 p.m. on Wednesday, March 5, due in class on Wednesday, March 12.

Essay # 5 will post at 12:30 p.m. on Thursday, March 6, due outside my office by the beginning of class time on Thursday, March 13 (remember no class that day).

Prelim Exam will post at 9 a.m. on Thursday, March 13 (our off-day), due in class on Thursday, March 20. The exam will consist of ten (10) questions, worth five (5) points each, for a total of fifty (50) points towards your final grade.

Comments on Essay # 3:

    • Read and answer the precise question as framed in the problem. If the problem narrows the issues, stay within those issues. You only have 1000 words, so I try to frame the problem to allow you to target a specific issue within that word limit; take advantage of it.

        • Section A: The motion conceded that Murray acted in a racist matter (a big concession, because one might describe this as national-origin discrimination, which § 1981 does not cover). You had no reasons to analyze that question; acknowledge the concession and focus on the other elements.

        • Section B: The motion only challenged the element of harm/damages. You had no reason to discuss whether Baffert owed a duty or acted negligently and no reason to discuss whether plaintiffs and Churchill Downs had a contract. The motion accepted all of that. Which a defendant might do--if the damages the plaintiffs seek are obviously unavailable as a matter of law, there may be no reason to get into a fight about duty at this point. Especially for purposes of dismissal with or without prejudice--if the allegations of duty are lacking but the court might allow plaintiffs to amend, a defendant might focus on allegations damages which are deficient as a legal matter and thus the basis for dismissing with prejudice.

    • Define important terms as part of your RE. What does legal insufficiency mean (and how does it relate to plausibility); what does factual insufficiency (and how does it relate to plausibility)? What does it mean to dismiss with or without prejudice? And explain your conclusions as part of your A--Why should the dismissal be with prejudice? This requires you to be specific and cite the allegations in the Complaint you are talking about. Don't talk in generalities.

    • If you identify a conclusory allegation, you can't say "this is conclusory" and stop. Because there may be other nonconclusory facts in the complaint that may establish a sufficient claim; you have to discuss them, as well.

Local Rules and Judges' Rules (Updated)

Recall FRCP 83(b), authorizing each judge to create procedural rules for practice in her courtroom, within (and consistent with) the FRCP and the rules of the district.

Six Judges on the District of Colorado adopted a joint set of Uniform Civil Practice Standards for their courtrooms. One of them, Judge Kato Crews, is presiding over a lawsuit challenging the Mountain West Conference's policy allowing trans women to participate in women's sports (there was a big controversy last season about a volleyball player at Colorado State). Plaintiffs have moved to recuse Judge Crews, arguing that his adoption of these courtroom policies reflects bias and prejudgment on the issues. (Update: Judge Crews refused to recuse or to rescind the policy).

At the same time, plaintiffs challenging programs to benefit historically underrepresented groups (such as corporate pipeline programs or minority-investment programs) have had more success recusing judges over policies encouraging courtroom participation by less-experienced attorneys, especially women and historically disadvantaged groups.

The moral: Do not assume that the local and courtroom rules enacted under FRCP 83 are anodyne or blandly apolitical. Sometimes they have a substantive effect.

Some things on FRCP 15(a)

1) What we tried to identify with both time periods  in FRCP 15(a)(1) is when the window opens (earliest the party can amend as a matter of course) and when the window closes (party no longer can amend as a matter of course). The party can amend at any time within that window. So a plaintiff who wants to amend the complaint can do so at any time from right after filing the original through service of the original through service of the response through 21 more days. She not wait until the response is filed (although in practice she might, because she does not know of the defects until the response comes). If she identifies defects herself, she need not wait for anything.

2) Someone asked the following question outside of class: Which FRCP 15(a)(1) time period applies to an Answer with a counterclaim? Is it (B), because the counterclaim makes this a pleading to which a responsive pleading is required? Or do we divide the pleading up--(A) controls the parts that do not require a responsive pleading (e.g., the answers to the allegations) and (B) controls the parts that do require a responsive pleading (e.g., the counterclaim).

I took the question to a Civ Pro Prof Listserv (that is a group that knows how to party). Most said the textual argument is (B) controls all, since the "pleading" means the entire document, which is one to which a responsive pleading is required because of the counterclaim.

3) One person responded with the following, which I think illustrates something about both of the above points. And it shows how much of what happens in litigation occurs in the shadow of the rules but plays out in very practical terms . And it shows how the judge enforces cooperation and practical action within the litigation:

This actually happened to me, sorta.  I filed an answer and a counterclaim and the next day I noticed that I had left off an exhibit relevant to the counterclaim so (this was in the days of paper filing) I walked over to the clerk’s office and I got the same clerk.  We were on friendly terms because I liked to file stuff myself.  The federal courthouse was right across the street and I liked the fresh air (and didn’t bill anyone for the time it took).  She said “why are you back again?”  I sheepishly explained what had happened.  She said “hold on, it was late yesterday and I didn’t have time to put it in the file,” so she took the missing exhibit stapled it to my first filing and put it in the file.  I hustled back to the office and snatched the amended answer/counterclaim that I was serving by mail out of the outgoing mail before it had been picked up.

My thought process was that since the other side was going to have to answer the counterclaim I had a freebie coming.  I didn’t give any thought to whether the fact that the exhibit was only relevant to the counterclaim made any difference or not.  I suppose I’d read the rule that the freebie would only apply to the counterclaim.

But realistically, nobody would have made an issue out of it.  My plan had been to call opposing counsel and tell them to ignore the original and just deal with the amended one.  The chances of them making a motion saying I needed permission from them or the court were vanishingly small and even if they did the judge would’ve looked at them cross-eyed and granted me permission to file an amended answer/counterclaim.

So I think that’s probably the closest to a real world answer.  But good on your student for reading the rule carefully enough spot an at least potential ambiguity.

For return from break

Friday audio--Section A, Section B.

Some scheduling stuff for our return:

    • Essays ## 4 and 5 will be posted on Thursday, March 6 and due outside my office by classtime on Thursday, March 13.

    • Prelim Exam will be posted at Noon on Thursday, March 13 and due on Thursday, March 20. It will be 5-10 multiple-choice questions.

    • Section A class on Friday, March 7 will be in the Large Courtroom for Admitted Students Day. You should be beyond prepared.

    • No class on Thursday, March 13. Make-up schedule for that TBD.

    • Classes on Friday, March 14 will meet an hour late: Section B (Noon-1:10); Section A (2-3:10).

We continue with (and finish) Amendments and Relation Back.

    • What knowledge or notice must the new party have under FRCP 15(c)(1)(C)? What is imputed or constructive (as opposed to actual) notice? Key emphasis on "impute"--what does that word mean and how does that explain "imputed knowledge?" How can the to-be-added party get either actual or imputed notice? What are the timing requirements for that notice?

    • What is a "mistake concerning the proper party's identity," according to the 1966 Committee notes, Krupski, and Herrera? Why does a claim against a Doe defendant not relate back? What is the argument that Krupski allows Doe relation back?

This will complete our discussion of pleading

Then move to Managerial Judging, focused on FRCP 16 and the NFLPA order.

    • What is managerial judging and how does FRCP 16 contribute to that? What does FRCP 16 require or allow the judge to do?

Then we may hit the very beginning of Discovery: Discovery Process. Just for Wednesday, prep FRCP 26(a) and (f); 30(a), (c), and (d); and 34.

    • How does discovery square with the adversary system? How does adverseness work into discovery?

    • Why would a party object in a deposition? How can a party protect its interests while responding to a Rule 34 document request?

    • What is the connection between discovery and notice pleading?

    • What is the connection between discovery and notice pleading?

    • What is disclosure and what is the standard for disclosure? How is that different than the ordinary standard for what is discoverable? Why a different standard for disclosure?

Sample Answer: Essay # 3 (Section A)

The court should deny defendants’ motion to dismiss for failure to state a claim under FRCP 12(b)(6).

 

A motion to dismiss for failure to state a claim tests the legal and factual sufficiency of a pleading stating a claim for relief. A court can dismiss with prejudice (with leave to replead) or without prejudice (with leave to replead).

Sample Answer: Essay # 3 (Section B)

 

The court should grant defendants’ motion to dismiss for failure to state a claim under FRCP 12(b)(6) and dismiss the Negligence claim against Baffert and the Breach of Contract claim against Churchill Downs with prejudice.

 

A motion to dismiss for failure to state a claim tests the legal or factual sufficiency of a pleading stating a claim for relief. A court can dismiss with prejudice (with leave to replead) or without prejudice (with leave to replead).

For Friday

Thursday audio--Section A, Section B.

We continue with Amendments; prep the remainder of this section. 

    • On the connection between dismissal with or without prejudice--what would happen if the court dismissed a complaint but did not specify the terms? What would the plaintiff do and how would the court respond?

    • Be prepared to discuss the Foman factors; what do they mean and how do they relate to the text of FRCP 15(a)(2)? What is the connection and distinction between undue delay and undue prejudice? What makes an amendment futile?

    • What does it mean for a pleading to relate back? How does relation back connect to futility? How can the court know that a proposed amendment is futile?

    • Consider: In Zielinski, PPI moves for leave to amend to change its answer to ¶ 5 to make clear it is not responsible for the pier. What is Zielinski's argument for undue prejudice?

    • What is the purpose of relation back and how does it operate? What are the procedural frames in which it can be raised? 

    • What are the underlying policies behind statutes of limitations? How do those policies connect to relation back?

    • Consider the elements of relation back: How is notice created? What is the timing for that notice? What is the difference between "actual notice" and "imputed or constructive notice?" How might a new party obtain either kind?

    • What is a "mistake concerning the proper party's identity?" How does it apply to a Doe pleading?

Thoughts on Same Transaction or Occurrence and other additional claims

In response to some questions from in and out of class about what satisfies STO and what is an insufficient "but-for:"

• Someone pointed out in class Wednesday that there would be discovery overlap between Kinsmann's claims and Winston's counterclaims: Whether Winston committed sexual assault goes to the merits of her battery claims and the truth of her statements for purposes of Winston's defamation counterclaim. That may suggest that courts should not entirely reject a but-for connection in defining STO. That while there is no discovery connection in Jones, there could be in other cases. For better or worse, however, courts have not gone that route--if the only connection is but-for, it is not enough. Work through the Bose problem for the same analysis.

 • When we discussed joinder of plaintiffs, we said it is possible to frame what look like sequential events into a single transaction or occurrence (one big fraud scheme instead of individual acts of fraud). That might be a way to understand Clear Code's counterclaim under the new contract. At first blush we have two distinct occurrences--Clear Code makes bad code, Holmes stops paying. But we can connect them as one because of the contract and the business relationship, which links them together.

• To be clear, a but-for connection between events never satisfies STO under any rules. The question is whether you can identify and argue for a relationship that is closer than but-for.

• In thinking about but-for in joinder: Don't think of it as "but-for cause" (as you sometimes see in the legal standard for a claim, as in torts or in the discrimination claims in Section B's Essay # 1). This is a but-for relationship between real-world events (one event leads to another) that give rise to distinct claims. It's not about the governing legal standard.

• The question of whether you can "bring" unrelated claims is independent of the merits of those claims. That is, a party can join all of these claims in their pleadings, even if unrelated, when the rules allow. That has nothing to do with whether any of these claims will survive a 12(b)(6) or even be sanctionably frivolous. Our focus is entirely on what then joinder rules allow. And recall Rule 21--misjoinder of claims is not grounds for dismissal of those claims.

For Thursday

Wednesday audio--Section A, Section B. Essay # 3 due in class tomorrow.

From Holmes, analyze for yourselves the claims by Jasper against Holmes and Holmes against Jasper--what rules and are they permissible. For tomorrow, we have some clean-up on Responsive Pleadings: What is the difference between an affirmative defense and a counterclaim? Consider the plaintiff in a tort claim being negligent in some way and the plaintiff in a contract claim having committed fraud in the inducement. What is the problem with Winston's Eighth Affirmative Defense?

What happens if the defendant fails to respond to a pleading that requires a responsive pleading? What happens if the plaintiff decides not to pursue the case?

We turn to Amendments, the last piece of pleading. Prep everything for Friday. Remember that we already discussed how to choose between FRCP 15(a)(1)(A) and (B), so review those notes. For timorrow, prep FRCP 15(a)(2), Foman, and review Zielinski.

    • What might a party do in amending a pleading that states a claim for relief? What might a defending party do in amending a responsive pleading? Review the facts and procedure in Zielinski and Krupski and consider arguments around different possible pleadings.

    • How do the 15(a)(1) time periods work? What is the latest a party can amend and what is the earliest?

    • When must a party look to FRCP 15(a)(2)? What should a party do if a pleading is improperly filed under FRCP 15? What happens in the following: plaintiff files a complaint, amends with leave of court, files a new complaint, then files a new amended complaint without seeking leave of court?

    • What is the effect of the amended complaint and previously filed pleadings and motions?

    • How do amendments affect FRCP 7(a) designations for pleadings stating a claim and for responsive pleadings?

    • What should the last document be called?

            • A files a complaint

            • X files an answer

            • A files a complaint

            • X files an answer

            • A files a complaint

            • X files __________

    • What should the last document be called?

            • A files a complaint

            • X files a 12(b)(6)

            • A files a complaint

            • X files a 12(b)(6), which the court denies

            • X files an answer

            • A files a complaint

            • X files an answer

            • A files a complaint

            • X files an answer

            • X amends to file a _______

    • Do Winston's eight and ninth affirmative defenses have any force or effect?

    • How does FRCP 15(a)(2) connect to dismissals with or without prejudice?

    • What are the six considerations for leave in Foman?

    • Consider: In Zielinski, PPI moves for leave to amend to change its answer to ¶ 5 to make clear it is not responsible for the pier. What is Zielinski's argument for undue prejudice?

For Wednesday

Friday audio--Section A, Section B. Essay # 3 due at the beginning of class next Thursday. Essays ## 4 and 5 will be posted during the first week after spring break. The Preliminary Exam will go up the second week after break.

We dive into the weeds of FRCP 14 and the downstream claims in 14(a)(2), (a)(3), and (a)(5). Work through Holmes; identify each claim, its label, the controlling rule, and whether it can be included in the action. Consider the role that FRCP 18(a) plays in all of this.

    • What does the logical relationship require? What are its limits, according to Jones?

    • Were Ford's counterclaims permissive or compulsory? Are Winston's counterclaims permissive or compulsory?

    • Consider whether the counterclaims in the following case are permissive or compulsory:

        Consumers Union publishes Consumer Reports Magazine. CR publishes a negative review of some stereo products made by Bose. Bose holds a press conference to announce plans to sue Consumers Union for trademark infringement, then files the lawsuit, asserting one claim. Consumers Union wants to assert two counterclaims: Defamation (arising from false statements at the press conference) and Abuse of Process (alleging that the trademark claim is so frivolous as to be tortious).

    • What is the difference between an affirmative defense and a counterclaim? Can the same legal rules serve as both? Consider fraud and contributory/comparative negligence. What happens if a party mixes them up?

My plan is to finish Reponsive Pleadings on Wednesday, then move to Amendments on Thursday and Friday.

For Friday

Thursday audio--Section A, Section B. Essay # 3 has posted--note different essays for each section. Due in class on Thursday, February 20.

We continue with our statute of limitations example. What is the alternative approach to raising the defense besides an answer and a 12(c) motion? What determines which approach plaintiff can take? If the defendant raises statute of limitations via 12(b)(6) motion, how does the court know the date of filing? Can the court look beyond the pleadings on a 12(c)?

We then 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?

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 (negotiated by Cosgrove) to produce some code for Holmes. Consider the opening procedural steps in all of this and then go from there.

• 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.

Identify what type of claim each of this is, under what rules, what standards, and whether it can be included in the case.

Essay # 3 (Sec. B)

Download Regular Type. Download Large Type. Read after the jump.

Essay # 3 (Sec. A)

Download regular type. Download Large type. Read after the jump.

Pleading Board

 

For Thursday

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.

 

Scores on Essays ## 1 and 2 (Both Sections)

Several people have asked:

Sample Answer--Essay # 2 (Both Sections)

Recurring Problem: There were five different documents, which are either individual or at best can be grouped into 3. Cannot just refer to "the documents;" they are different and raise different issues and require different analyses. Analysis must be specific and detailed; you cannot speak too generally.

 

Also (and this is not limited to the essays--it came up in class on Thursday): There seems to be confusion about the first sentence of FRCP 10(c). It says a "statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion." Note the language: "statement in a pleading" adopted by reference; this has nothing to do with documents or statements in documents being referenced in the pleading. As we said in class, the "referenced-and-relied on" idea comes as an extension of the second sentence of FRCP 10(c) making documents part of the pleading.

 

The court cannot consider these documents on a 12(b)(6) motion. If it considers them, it should convert the motion to one for summary judgment, give plaintiff an opportunity to present more materials, and perhaps allow discovery.

 

Sample Answer--Essay # 1 (Sec. B)

Common Problems: Common question of law requires the same legal rule or standard. "Discrimination" is not a question of law. And Title VII is a different legal rule than § 1981; the overlap comes from the shared legal standard. 

You did not have the facts for issue preclusion, because you never were told what happened in the (hypothetical) first litigation other than that it ended and Rodemaker might be unhappy. Plus, issue preclusion does not bar the later action; it just affects how it will be litigated. Option 2 triggered claim preclusion, which applies regardless of how the first action ended.

Plaintiff can pursue Option # 1; he cannot pursue Option # 2.

Sample Answer--Essay # 1 (Sec. A)

Common Problem: Supreme Court decisions are not part of the transaction or occurrence; that looks to real-world events.

The court denies the motion to sever, as Deski and Maxwell are properly joined as defendants in Fund Texas Choice’s (“FTC”) action.

Essays ## 1-2

Have been graded and will be available outside my office after 10:30 a.m. Monday.

Sample answers will post in the morning. 

Review your paper and the comments and compare with the sample. I am happy to meet about any questions once you have looked at everything.

A few general comments common to all:

    • The application part of your analysis must get into detail. If you have specific allegations or documents, you must discuss them with some specificity. Get beyond "the documents" or "the allegations" to speak individually and precisely. Especially if the documents are different and raise different analysis.

    • Answer the question asked, considering the call of the question and the role you were told to play. If you are the judge, don't say "the court should find." If you were told to argue what should happen with the documents, don't discuss whether the motion should be granted. This is clear from the Semester Assessments doc on the Blog.

    • Please check the blog post on writing and citations and "Semester Assessments," which provide information about writing, formatting, cover sheets, etc. You must provide a Blind ID # in lieu of your name (hence it being called a "Blind" ID #).

    • It should be clear but: Essays are assigned at the end of a topic or issue. No essay will be assigned until after we have finished a subject or issue. And while essays may hearken back to prior stuff, it will not touch on something we have not finished entirely.

    • You have all the information to do clear and firm analysis and draw a clear and firm conclusion. If your analysis depends on speculation (the court might do X), you're going down the wrong path.

Don't be this lawyer, Ep. 211

Stories  about lawyers misusing ChatGPT are legion, combining "AI is bad" with "Look at the stupid lawyers," both irresistible narratives. Here is the Order to Show Cause; here is the motion with the fake cases; here is a story about the case.

Two things of note:

1) Our brief discussion of FRCP 11 sanctions did not get into the enforcement mechanisms. But it shows how courts raise issues--through an order to show cause, which triggers the parties to brief an issue.

2) Don't do this.

Essay # 2--The Real Outcome

Background and resolution of the case in Essay # 2. Plaintiff received a $ 250,000 settlement--$ 180k for her, $ 70k in attorney's fees. Trust me when I say this is a lot of money for a non-injury civil rights suit. If you bounce around the FIRE page linked above, you can see the posts she embedded in her pleading.

For Wednesday

Friday audio--Section A, Section B. Essay # 3 will be posted on Thursday, February 13 and due in class on Thursday, February 20. I hope to have Essays ## 1 and 2 graded and back to you by early next week. I will post sample answers after the grading is complete.

We will have a few minutes of clean-up on Twiqbal. How does the context-specific inquiry for plausbility help the plaintiffs in VOA and Godin? Be sure to incorporate the language in NRA that I posted earlier this week. The stuff on the board today shows everything that goes into the Complaint and what you have to think about in drafting and arguing over the complaint

We turn to Respsonsive Pleadings. As we will see, there are three pieces to a responsive pleading: 1) Failure-of-Proof Defenses; 2) Affirmative Defenses; and 3) Additional Claims. For Wednesday, we will focus on # 1. Prep FRCP 7(a), 8(b), 10, 12(c), and 12(f), along with Zielinski and King Vision. Work through the Answer in Kinsmann and how the defendant offers different responses to different allegations and whether those responses are proper.

    • What are the defendant's responsive options? How does the Kinsmann answer use each and does it do so properly?

    • Must the defendant explain a response?

    • What was wrong with the defendant's initial response to ¶ 4 in Zielinski?

    • What is the remedy for an improper defense?

    • How can each party use FRCP 12(c) in response to the defendant's responses to the allegations in the complaint?

For Friday

Thursday audio--Section A, Section B. Essay # 2 due at the beginning of class tomorrow. We will do our first extra 20 minutes tomorrow.    

    • What does the REA in your CREAC look like on a 12(b)(6)?

    • Be ready to discuss how that standard applies to Twombly, Iqbal, VOA, and Godin. Think about the basic substantive law at issue on each.

    • What does Johnson suggest about what a plaintiff must do in his complaint?

    • What is the problem with the Court looking for and finding an "obvious alternative explanation" for the allegations in the complaint? In looking at this part of Twiqbal, consider the following:

NRA v. Vullo involved a First Amendment challenge by the NRA against Vullo (the head of the New York agency that regulates insurance companies); according to the complaint Vullo threatened insurance companies with regulatory action if the companies continued to do business with the NRA or promised to refrain from regulatory action if they ceased doing business with the NRA. The Court held that plaintiffs  stated a claim for a violation of the First Amendment. The majority includes the following:

For the same reasons, this 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.

Finally, some thoughts on all of this. The difference among the pleading standards is somewhat metaphysical; you cannot look for mathematical precision as to the line between 9(b) heightened pleading and Twiqbal. That means a certain amount of uncertainty, a lot of play in the joints, and a lot of room for argument, based on the allegations you have and the substantive law at issue.

To something that came up in Section A: Twombly is less than 9(b) because the Court tells us it is. The idea of "context-specific" means that the plaintiff can establish plausibility with less in some cases than in others (based on the policy concerns underlying Twiqbal). But none of that is as high as 9(b).

Three follow ups on class stuff

Three entries in the "real world examples of what we do in class:"

1) The comments from this federal judge are of a piece with the "have lunch together and cut the crap" order I posted at the beginning of the semester. The rules offer a lot of tools in the litigation process and they can be used for good or evil, the right way or the wrong way. Zealous advocacy on behalf of your client's interests is not the same as scorched-earth advocacy on behalf of your client; in fact, sometimes the latter undermines the former.

2) The Complaint in a new shareholder suit against Target over its pro-LGBT+ sales, the subsequent boycott, and the loss of shareholder value. Again, will be subject to § 78u-4.

3) The Complaint in a lawsuit against the Ivy League seeking an injunction ordering it to strip a trans woman of women's swimming titles and records and rewrite the record books to declare other swimmers as the winners. Presumably the athlete at the center of this will intervene under FRCP 24(a) if she does not believe the Ivy League or its schools will represent her interest. Also a good example of pleading as press release; how you feel about the rhetoric, tone, and writing style will depend on how you feel about the underlying merits of the case. But let that be a writing tip: If your style and word choice will only convince those who already agree with you, choose another writing style.

 

For Thursday

Wednesday audio--Section B, Section A. Essay # 2 due at the beginning of class Friday.

Continue with  Future of Federal Pleading.

    • What are the policy arguments that drive the Court's decision in Twombly? How is that analysis consistent (or not) with Swierciewicz? Why do the policy arguments not justify the new standard?

    • What is the new pleading standard and the new approach to deciding a 12(b)(6) motion after Twombly and Iqbal?

    • Be ready to discuss how that standard applies to Twombly, Iqbal, VOA, and Godin. 

    • What does Johnson suggest about what a plaintiff must do in his complaint?

    • What is the problem with the Court looking for and finding an "obvious alternative explanation" for the allegations in the complaint? In looking at this part of Twiqbal, consider the following:

NRA v. Vullo involved a First Amendment challenge by the NRA against Vullo (the head of the New York agency that regulates insurance companies); according to the complaint Vullo threatened insurance companies with regulatory action if the companies continued to do business with the NRA or promised to refrain from regulatory action if they ceased doing business with the NRA. The Court held that plaintiffs  stated a claim for a violation of the First Amendment. The majority includes the following:

For the same reasons, this 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.

Essay # 2 (Both Sections) (Corrected ¶ numbers)

Download Regular Type or Download Large Type or see the problem after the jump.

For Wednesday

Thursday audio--Section A, Section B. Enjoy your extra day off.

We continue with Heightened/Fact Pleading.

    • Think about possible justifications for subjecting fraud, mistake, and securities fraud (and only those) to heightened pleading and the counter-arguments for why those rationales do not explain or justify the rules.

    • What is the argument for treating civil rights cases under FRCP 9(b) and why did SCOTUS reject them in Swierkiewicz? What does Swierkiewicz do with the argument that civil rights cases raise similar problems as fraud claims?

Then move to Future of Federal Pleading; read everything for Wednesday, as this will take us through most of the week. Read it for now and then keep reviewing each night.

    • Focus on Twombly and Iqbal and how they changed (or did not change) the meaning of FRCP 8(a)(2). Does any part of Conley survive? What is the pleading standard under FRCP 8(a)(2) after Twombly and Iqbal?

    • What motivates higher pleading? Can what the Court said about policy arguments in Swierkiewicz be reconciled with Twombly and Iqbal's concerns?

    • What are "conclusory facts" and how are they handled on a 12(b)(6)?

    • Analyze the complaints in VOA and Godin under the Twombly/Iqbal standard and determine whether they are sufficient. Consider what the basic elements of copyright, contract, defamation, and due process claims might be.

Student Seminar Workshop

You received notification about this via email. But please attend the Student Seminar Workshop at 12:30 tomorrow (Thursday) in RDB 2080. Four students from last semester's seminars will present their work. You all will at some point take a seminar and it will be good to see how they create and present the work. It also is a chance to support your classmaters.

For Thursday

Wednesday audio--Section A, Section B.

We continue with The Idea of Notice Pleading.

    • 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 a case of 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 is the argument against loose notice pleading?

    • How does FRCP 11(b) enable notice pleading, in light of information asymmetry? What are the arguments for not requiring too much from the plaintiff in the initial pleading? How should information asymmetry 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 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 you are African American." 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 FRCP prevent pleading from becoming too loose and limited to simple notice?

Then move to Fact or Heightened Pleading. This introduces us to our first non-transsubstantive rules.

    • How does FRCP 9(b) differ from 8(a)(2)? How does § 78u-4 differ from FRCP 9(b)?

    • These present our first non-transsubstantive rules. Why have a special rule for fraud and mistake (and securities fraud)--what are the rationales for special treatment and do those rationales justify the special rule?

    • What is the argument for treating civil rights cases under FRCP 9(b) and why did SCOTUS reject them? What does the Court do with the argument that civil rights cases raise similar problems to fraud claims?

We will not reach Future of Federal Pleading until next Wednesday, but you will read that entire section into next week. 

Essay # 1 (Section B)

Download Regular Type or Download Large Type or read after the jump.

Essay # 1 (Section A)

Download here (regular type) and Download Here (Large Type) or read the problem after the jump.

Waiver Hypotheticals

 Reposing with some corrections. For Wednesday.

    A v. X. X files a 12(b)(5) motion; the court denies. X serves an Answer including (b)(2) and (b)(7).

    A v. X. X files a 12(b)(3) motion; the court denies. X files and serves an Answer; then X files a 12(b)(1) motion.

    A v. X. X files and serves an Answer with no 12(b) defenses. 4 weeks pass. X files and serves an Amended Answer with (b)(2) and (b)(6) defenses.

    A v. X. X files a 12(b)(1) motion; the court denies. X files a 12(b)(6) motion. [For this, consider the question of whether the defense is waived and whether X can raise the defense in this motion. Be ready to argue both sides on this, based on the text of the rules and other considerations].

Intervention in Action

From Bloomberg Law. Biden sued the IRS for damages, pursuant to a federal statute. The agents seek to intervene to help the IRS avoid liability so that IRS liability does not make them look bad.

 

Jan. 24, 2025, 1:36 PM EST

Hunter Biden Says IRS Agents Lack Basis to Join Tax Leak Case

Two IRS agents seeking to intervene in a case involving their disclosure of Hunter Biden’s tax returns are making a “classic strawman” argument for their inclusion, Biden told a federal appeals court in Washington.

Gary Shapley and Joseph Ziegler weren’t parties to the case, which found that the IRS is liable for damages if the two agents did illegally leak the confidential tax return information of former President Joe Biden’s son. IRC Section 6103 holds the IRS, not the agents, liable for their actions, the lower court said.

“The district court was clear that neither permissive intervention nor intervention as of right was proper here, and that this litigation is not the appropriate forum for the two agents to contest or ‘defend’ their ‘rights,’” Biden said in a brief filed Thursday with the US Court of Appeals for the D.C. Circuit. “In fact, the agents created such a forum in a separate defamation suit they decided to file.”

The brief responds to the agents’ appeal of the lower court’s decision, backing up Biden’s motion for summary affirmance without additional proceedings.

Shapley and Ziegler, who remain IRS agents, have argued they should be able to intervene in the case to contest the allegation that their disclosures of Biden’s tax information was illegal. They maintain instead that they engaged in protected whistleblowing.

While they wouldn’t be financially responsible for any damages, if they are implicated in violating Section 6103, it would cause “grave consequences with respect to their professional lives, reputations, and respective earning potentials,” the agents said.

The agents’ appeal is a “broad lament about the unfair nature and supposed ‘gravity of this case’ (an action solely between Mr. Biden and the United States),” Biden said in his brief. But they failed “to demonstrate how on the actual requirements for intervention, and in the merits of its decision, the district court abused its discretion,” he said.

Winston & Strawn LLP represents Biden. The Justice Department represents the IRS. Margulis Gelfand LLC and Nixon Peabody LLP represent Shapley, and John Rowley III of Washington represents Ziegler.

For Wednesday

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?

For Friday

Thursday audio--Section A, Section B. We will not have class on Friday, January 31; make-up TBD.

Prep all remaining parts of Rule 12, along with PAE and both sections of Glannon reading. 

      • 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? What facts and law does it offer?

    • 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?

    • Go through the 7 12(b) defenses. What are they? And should dismissal be with or without prejudice?

    • What is the connection between FRCP 8(a)(2) and FRCP 12(b)(6)?

    • For purposes of 12(b)(6), a complaint may be "legally" insufficient or "factually" insufficient. What is the difference between them? And what should the terms of dismissal be for each? Consider the bases for dismissal in PAE, Naruto (if granted), and Question B on Glannon p.404.

    • Read FRCP 12(g) and 12(h) carefully. What is the connection between them?

    • FRCP 12(h) divides the 12(b) defenses into 3 groups, in terms of how easily the defenses can be lost? What are the three sets of rules? Why have different rules for the 3 categories? What do they have in common to be subject to that rule?

Waiver Puzzles: Work the following and consider whether the defendant can include these defenses in the later filing.

    A v. X. X files a 12(b)(5) motion; the court denies. X serves an Answer including (b)(2) and (b)(7).

    A v. X. X files a 12(b)(3) motion; the court denies. X files an Answer; then X files a 12(b)(1) motion.

    A v. X. X files an Answer with no 12(b) defenses. 4 weeks pass. X serves an Amended Answer with (b)(2) and (b)(6) defenses.

    A v. X. X files a 12(b)(1) motion; the court denies. X files a 12(b)(6) motion. [For this, consider the question of whether the defense is waived and whether X can raise the defense in this motion. Be ready to argue both sides on this, based on the text of the rules and other considerations].

For Thursday

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?

Sample Essay

I expect Essay # 1 to post sometime next week and Essay # 2 to come shortly after.

Below is a sample essay and answer. Because we did not cover Rule 11 in detail, the analysis may not make much sense; don't worry about that. The point is to show you what the essay questions will look like and how you should approach your analysis and writing. Please refer to the post on Good Writing and Talking Procedure for more. Note the way rules are cited

 

You are counsel for the plaintiff in Naruto v. Slater. The defendants file a motion to dismiss the complaint; as part of that motion, they request sanctions under Fed. R. Civ. P. 11. The motion states that the complaint violates Rule 11(b)(1) and Rule 11(b)(2); it seeks sanctions from Naruto as plaintiff; PETA, as next friend; and you, as counsel. The motion specifically requests attorney's fees as the appropriate sanction.

 

For purposes of this problem:

    • The defendant's motion cites Wiggens, Ninth Circuit precedent holding that several federal statutes do not apply to non-humans absent clear congressional statement. The Copyright Act was not among the statutes Wiggens mentioned or discussed.

 

Explain why Rule 11 sanctions should not be imposed on you or on your client.

Essay Assignments--Section B

Numbers in () show the number of students assigned to each Essay.

 

Please work through the list and find your number. If you are not in here, let me know. You are responsible for knowing which essay you are assigned, when it is posted, and when it is due. No exceptions made.

Essay Assignments--Section A

Numbers in () show the number of students assigned to each Essay.

 

Please work through the list and find your number. If you are not in here, let me know. You are responsible for knowing which essay you are assigned, when it is posted, and when it is due. No exceptions made.

For Wednesday

Friday audio--Section A, Section B. I will post essay assignments by the beginning of next week.

We will finish Joinder; prep the remaining rules and reading. Can Jones join his claims against Walmart and Walmart Transport in the Morgan case? (Be ready to argue both sides). Are Walmart and Walmart Transport properly joined as defendants?

    • Review FRCP 8(d)(2) and (3). Begin with ¶¶ 68-74 of VOA. Why is it there? Are ¶¶ 68-74 necessary? What is the arguably inconsistency and how do the rules handle it?

    • How do FRCP 19, 24, and preclusion (discussed in the Glannon reading) limit the usual permissiveness of FRCP 18 and 20(a)? How is consolidation under FRCP 42 different than joinder and hat role does it play where claims are not or cannot be joined?

    • What is the difference between issue preclusion and claim preclusion? How does each affect later litigation?

    • Consider the way the following people may (or may not) and will (or will not) be part of the same litigation under all of the rules we have before us.

        • 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.

    • Consider how preclusion applies to the following:

        • Naruto sues Slater only; the court decides that non-human animals do not enjoy copyrights. What happens if Naruto files a new lawsuit against Blurb?

        • Godin sues Metta for defamation; the court decides Godin abused the students and she loses her defamation suit. What happens when Godin files a new lawsuit for breach of contract against the Board?

        • Godin sues the Board for breach of contract and loses. She then sues Nicely for defamation. What should happen with this second action?

        • Godin sues the Board for breach of contract and loses. She then sues the Union for breach of contract. What should happen with the second action?

        • VOA brings its contract claims in federal court against BSO. It then files a second suit with its Copyright claim.

My hope is that we will begin Responding to a Complaint: Motions on Thursday and continue that on Friday.

For Friday

Thursday audio--Section B (Section A was cut-off; coverage was the same). I am going to reiterate again: You must have the rules and documents with you (if you haven't picked them up, there is a box of them outside my office). And you must work from the texts themselves, not your notes.

 Prepare and review all the material for Joinder of Claims and Parties.

    • How does party joinder alleviate the concern for inconsistency? 

    • What is the defendant's procedural move when it believes parties or claims have been improperly joined? How does the party flag joinder for the court?

    • Be ready to discuss whether joinder of parties and claims is proper in Morgan and Godin, applying the text of 18(a) and 20(a), the Jones definition of "logical relationship," and the underlying policy goals. Be ready to talk through your analysis as if you were writing an essay--Rule, Explanation, Application.

    • Consider whether the following additional claims could be included in Morgan:

            • Krista Millea wants to bring a products liability claim against WalMart, arising from her purchase of a defective toaster. (Consider whether she can include this as her sole claim in the litigation and/or along with her Loss of Consortium claims--why might the answers be different?)

            Jones was injured in an accident with a different WalMart truck, driven by a different driver, one month after the Morgan accident, on a different stretch of the New Jersey Turnpike. (Be ready to argue both sides of this one).

    • How do FRCP 8(d)(2) and (3) affect the VOA complaint? Is the language in ¶¶ 68-74 of VOA necessary?