For Wednesday

Friday audio--Section A, Section B.  Essay # 7 due on Wednesday. Essay # 8 will post on Wednesday, due on Wednesday, April 16.

Two quick words on removal with multiple defendants in § 1446(b)(2).

    • Section (b)(2)(A) imposes unanimity--all defendants must agree to remove. But note that this is limited to defendants who have been joined. If ∆1 is served on June 1, it can remove without ∆2's consent if ∆2 has not been served.

    • Section (b)(2)(B) gives each defendant 30 days from service to remove (to file or join a Notice of Removal). But what happens if the defendants are not served at the same time, often months apart--what if ∆1 is served on June 1 and ∆2 is served on August 15 (past the time that ∆1 could remove)? Congress enacted (b)(2)(C) in 2011 and adopted the "Last-Served Defendant" Rule: The last-served defendant has 30 days to remove; any earlier-served ∆ can consent to that removal, even if his own 30 days to remove have lapsed. So in the example above--∆2 has 30 days from August 15 to remove; ∆2 can consent to that removal, although it no longer can join.

Move to Personal Jurisdiction. Before doing anything, read Preliminaries of Personal Jurisdiction blog post for background. Then prep all of Shift to Minimum Contacts, including Glannon pp. 93-100Read and prep all of World Wide Volkswagen. Review FRCP 12(h)(1).

    • How can each party consent or submit to a court's jurisdiction? 

    • How does Shoe change the standard for personal jurisdiction? When can a court exercise personal jurisdiction over a defendant?

    • What is general personal jurisdiction, what is specific personal jurisdiction, and how do they differ? Look at Shoe and Daimler on this.

    • What is a "Long Arm Statute?" Why call it that?

    • How does the PJ analysis in federal court compare with the PJ analysis in state court? See FRCP 4(k).

    • Consider two cases. For both, review the removal statutes and piece together the removal process to understand how it will work in the case:

        1) A (TX) sues X (NY) for defamation Texas state court; the amount in controversy exceeds $ 75,000. You are X's attorney. You do not believe X is subject to personal jurisdiction in Texas. Your forum preferences, in order, are: 1) anywhere other than Texas; 2) federal court in Texas (if stuck in Texas); 3) state court in Texas (where he now is). As X's lawyer, what is your procedural strategy to obtain the most preferable forum?

        2) World Wide:

            Robinson (NY) sued Audi (a German company), Volkswagen of America (the US subsidiary, a NJ corporation with PPB in NJ), World-Wide Volkswagen (the regional distributor, a NY corporation), and Seaway (local dealer, a NY corporation). Robinson sued in Oklahoma state court. Audi and VWA are subject to PJ in Oklahoma, but prefer federal court. How can they make that happen?

            Also, Robinson and his family were driving through Oklahoma as part of a permanent move from NY to Arizona; Robinson had a new job and the family planned to stay in Arizona permanently. Why is Robinson a NY citizen?

    • How does World Wide adjust the two pieces of the Shoe standard and how do the two connect? How does a defendant establish "certain minimum contacts?" How can a defendant "purposefully avail?" In what way(s) did WW and Seaway, perhaps, purposefully avail?

Personal Jurisdiction Preliminaries

On Wednesday, we jump into into Personal Jurisdiction with International Shoe in 1945. But there is some background and about 70 years of stuff before Shoe. For purposes of time, this post provides basic background on civil litigation and personal jurisdiction prior to Shoe. Before reading the material assigned for Wednesday, read this post in conjunction with Glannon pp. 69-71 and these pages from Glannon's prior edition (he removed this material from the current edition, but has given permission to share the old pages).

For Thursday

Wednesday audio--Section A, Section B. Essay # 7 has posted. Essay # 8 will post on Thursday.

Review Supplemental Jurisdiction.

    • If VOA is also from Massachusetts, there is no supplemental jurisdiction over the hypothetical old contract claim. But what about the actual state claims over the 2012 BSO season?

    • Ford (p.457) says § 1367(a) reaches the limits of Article III. What does that mean?

     • What is the connection between § 1367(a)'s standard and the standard for joinder in FRCP 13(a), (b), and (g); 14(a), and 20? There are 3 logical possibilities--what are they and which does Jones adopt? What does that mean for the counterclaim in Jones? What about the counterclaim in Kinsmann ((review our discussion of that from Responsive Pleadings).

    • Does § 1367(b) apply in Godin? What are the "jurisdictional requirements" of § 1332?

    • § 1367(b) identifies 3 categories of cases in which there is no supplemental jurisdiction. What do they have in common? Does § 1367(b) limit supplemental jurisdictional in the following (assume joinder is proper in all):

        • Metta wants to file a crossclaim against Nicely.

        • A (IA) v. X (NE). X (NE) impleads M (IA). A wants to file a claim against M.

        • A (FL) v. X (NY) and Y (FL) 

        • A (NJ) & B (DE) v. Walmart (DE/AR).

                (See also the discussion in Glannon (p.270) on this problem, especially as to the amount in controversy)

Then move to Removal. Read the assigned statutes (§§ 1441, 1446, and 1447) and map out the process for removal--when and how it functions and what the parties must do. What is the effect of filing a notice of removal? What is not required for a defendant to remove? What happens then? What is the timing for removal?

    • What is the logic of the "Forum Defendant Rule" of § 1441(b)(2)? 

    • A, Inc. (IL/IL) sues X, Inc. (PA/PA) in state court in Pennsylvania. The day after filing, X removes to federal court. Under § 1441(b)(2), is removal proper?

Essay # 7 (Sec. A)

Download Regular Type; Download Large Type; and after the jump. Due next Wednesday, April 9.

Two things in handling this case:

1) Math is required, as you must calculate time periods and number of dayss. You may use this site, which allows you to calculate the number of days between two dates.

2) You have pieces of deposition testimony and pieces of Affidavits. The Affidavit paragraphs are numbered. Each question and corresponding answer in the Dep is number (Q1 + A1; Q2 + A2; etc.). Be specific in what you cite to.

Pay attention to the role you are told to play.

Essay # 7 (Sec. B)

Download Regular Type; Download Large Type; Read after the jump. Due in class next Wednesday, April 9.

You have excerpts of an Affiadvit; the paragraphs are numbered. You have excerpts of a Deposition; the questions and corresponding answers are numbered (Q1 + A1; Q2 + A2; etc.). Please cite to evidence and be specific.

Pay attention to the role you are told to play.

 

 

Sample Answer--Essay # 6

Available outside my office.

Section A: Mean: 20.575; Median: 21

Section B: Mean: 17; Median: 17.375

Comments:

    • Not everything we touch in class must appear in your answer. Our class discussions, by design, cover everything about a topic; a single question may require less. The goal is to answer the question asked, not to show everything you know about the topic. So, here: You were asked to decide a motion to compel over four discovery requests. No need to discuss how the discovery process or the request for documents operates. You don't lose points for doing this. But you waste space that would allow you to write more and with more detail about what matters.

    • If you impose limits on the scope of discovery, you need to explain that limitation. If five years of emails is too long, explain why five years is too long and why a shorter period is more appropriate--besides "it's shorter."

    • Don't assume facts you do not have. You cannot say that searching her social-media feeds will require going through massive amounts of information--you do not know how active she is on social media. Maybe she does not post much, so it will not be "massive amounts of information." Or context matters for the inferences you can draw. Microsoft or GM or a government agency have "massive amounts of info" in ESI--they are huge corporations. An individual's social-media account is a different thing

    • As to Request # 1, she claims she does not take medicine. Wouldn't medical records--that show whether she takes medicine--be relevant to that?

    • Beware being too conclusory--you must explain. It is not enough to say something is relevant or proportionate--explain how and why. If your analysis or application consists of a single sentence, you need to do more.

    • (This point is not limited to discovery--it goes for everything): Don't define your case too narrowly. This case is was not about "religious discrimination" in the abstract. It is about a concrete context--plaintiff was fired because she refused to get a vaccine. She alleges that the employer violated Title VII by firing her (rather than exempting her from the vaccine) because she objected on religious grounds. But the case is "about" the firing and the vaccine as much as it is about religion. For purposes of this question, therefore, how should that affect discovery of things she said about her firing or about vaccine mandates or what medicines or procedures she does or does not receive?

For Wednesday

Friday audio--Section A, Section B. Essay # 7 will post on Wednesday, April 2, due Wednesday April 9.

Review the primer on federal question jurisdiction, along with § 1331 and Glannon pp. 25-30. You will need to have a basic grasp of "arising under" jurisdiction to understand supplemental jurisdiction. What federal claims do we see in VOA and in Godin?

We move to Supplemental Jurisdiction, which involves § 1367, an unfortunately confusing statute. Prep everything to cover Wednesday and Thursday. Review your notes from earlier in the semester on the definition of a claim, FRCP 8(a)(1), and joinder under FRCP 13, 14, 18, and 20.

    • Is there supplemental jurisdiction in VOA and in Godin and why?

    • Is there supplemental jurisdiction over Winston's counterclaims and why? Does it matter to whether the court can hear this counterclaim?

    • What might cause the court to decline jurisdiction under § 1367(c) and what facts might the court consider?

    • When should the parties and court rely on § 1367(a) and how does that reveal problems with how VOA pleaded its citizenship?

    • Why is it preferable to establish diversity jurisdiction rather than rely on § 1367?

    • Ford says § 1367(a) reaches the limits of Article III. What does that mean?

     • What is the connection between § 1367(a)'s standard and the standard for joinder in FRCP 13(a), (b), and (g); 14(a), and 20? There are 3 logical possibilities--what are they and which does Jones adopt? What does that mean for the counterclaim in Jones? What about the counterclaim in Kinsmann?

    • Recall the (fictional) prior-contract claim between VOA and BSO. Can it be joined under the rules? Is there jurisdiction? How does the answer change if Sohm is a California citizen and the only member of VOA or if VOA has another member who is a Massachusetts citizen.

    • Does § 1367(b) apply in Godin? What are the "jurisdictional requirements" of § 1332?

    • § 1367(b) identifies 3 categories of cases in which there is no supplemental jurisdiction. What do they have in common? Does § 1367(b) limit supplemental jurisdictional in the following (assume joinder is proper in all):

        • A (FL) sues X (CA) and Y (CA). X files a cross claim against Y. Y impleads its insurer, M (CA).

        • A (IA) v. X (NE). X (NE) impleads M (IA). A wants to file a claim against M.

        • A (NJ) & B (DE) v. Walmart (DE/AR).

                (See also the discussion in Glannon on this problem, especially as to the amount in controversy)

Federal Question Jurisdiction: A Primer

To save class time, a primer on Federal question juridiction; you can read and take notes here. Review this prior to class on Friday and next week, as it will be helpful in understanding  Supplemental Jurisdiction. , as well as looking at the assigned (and linked) statutes.

Read this in conjunction with the assigned (and linked) statutes; you can supplement this with Glannon pp. 25-30, which gives a nice basic overview.

We cover Federal Question Jurisdiction in greater depth in Federal Courts, an upper-level class that I encourage you to take during the next two years.

Yes, you are responsible for knowing this and it is fair game for the exam.

For Friday (Double Session)

Thursday audio--Section A, Section B. Essay # 6 due in class tomorrow.

We will finish Diversity Jurisdiction, so read and/or review all pieces of that. What are Mrs. Mas' possible domiciles and where did the court land as to her citizenship and why?

  • Consider the bases for jurisdiction (or lack of jurisdiction) of the following:

        • A (PR) v. X (DC) 

        • A (Cuba) v. X (FL)

        • A (Cuba) v. X (Venezuela)

        • A (TX) & B (China) v. X (Taiwan)

        • A (TX) & B (FL) v. X (Taiwan) & Y (FL)

        • A (Cuba/Lawful permanent resident domiciled in FL) v. X (FL)

        • A (NY) v. X (US Citizen domiciled in France) 

    • How do you determine domicile for corporations? What about for non-corporate business entities? What is the significance of entities having (potentially) multiple domiciles? Is there diversity jurisdiction in Morgan? What about in VOA?

    • What happens if adverse parties are entities (incorporated or unincorporated) with multiple citizenships? Consider whether there is jurisdiction (and on what bases) in the following cases:

        • A, Inc (DE/DE) v. X, Ltd. (NJ/Canada)

        • A LLC (NY/Mexico) v. X, Ltd. (NJ/Canada)

    • What is the purpose of the amount-in-controversy requirement? How do you determine if it is satisfied? What if the case seeks equitable relief (such as specific performance or an injunction)?

    • Plaintiff files in state court and wants to make clear the case cannot be filed in federal court because of the amount-in-controversy, by dramatically being .01 below the threshold. The complaint states "The amount in controversy is $ 74,999.99 and not one cent more." What did the lawyer do wrong, if the goal was to be .01 below?

    • What happens if the court finds non-diverse adverse parties and thus no jurisdiction?

We hopefully will begin Supplemental Jurisdiction, which involves § 1367, an unfortunately confusing statute. For tomorrow, prep § 1367(a), FRCP 18, and FRCP 82. Review your notes on the definition of a "claim" and consider the number, type, and jurisdictional bases for the claims in VOA and Godin.

For Thursday

Wednesday audio--Section A, Section B.  Essay # 6 due Friday--Please note that Plaintiff objected to those discovery requests from Defendant. Essay # 7 will post next Wednesday, April 2, due on Wednesday, April 9.

We continue with Diversity Jurisdiction; prep the entire section, which will take us through Friday. Review your notes (from the second day of the semester) on the basic structure of the federal judiciary and the difference between exclusive jurisdiction and concurrent jurisdiction.

    • What are the policies behind diversity jurisdiction? How does placing cases in federal court serve those policies?

    • A(FL) sues X (NY) in federal court in Louisiana; is there subject matter jurisdiction?

    • What is complete diversity and minimal diversity? What is required, by what source of law, and why? How does that requirement relate to the purposes of diversity jurisdiction? What is the argument in favor of minimal diversity and what are the problems with that argument, given the purposes of diversity jurisdiction?

    • What is the statutory basis for jurisdiction in Mas and why? Why is it necessary to consider the citizenship of Mrs. Mas in addition to Mr. Mas?

    • Consider whether there is complete, minimal, or no diversity in the following:

        • A (FL) v X (FL)

        • A (FL) v. X (NY)

        • A (FL) v. X (NY) & Y (FL)

        • A (CA) v. X (NY) & Y (MN)

        • A (NY) & B (FL) v. X (NJ) & Y (FL)

        • A (NY) & B (FL) v. X (NJ) & Y (IL)

        • A (NY) & B (NY) v. X (CA) & Y (CA)

        • A (NY) v. Audi (Ger) & VWA (NJ) & WorldWide (NY) & Seaway (NY)

    • What is domicile? What is change of domicile? What facts and evidence can parties use to prove domicile?  Where is Mrs. Mas a citizen?

    • Consider the bases for jurisdiction of the following:

        • A (PR) v. X (DC) 

        • A (Cuba) v. X (FL)

        • A (Cuba) v. X (Venezuela)

        • A (TX) & B (China) v. X (Taiwan)

        • A (TX) & B (FL) v. X (Taiwan) & Y (FL)

        • A (Cuba/Lawful permanent resident domiciled in FL) v. X (FL)

        • A (NY) v. X (US Citizen domiciled in France)

For Wednesday

Friday audio--Section A, Section B. Essay # 6 posted; Essay # 7 will post next Friday.

We will finish Summary Judgment on Wednesday; review the remaining provisions of FRCP 56, along with the 7th Amendment. Look at the problems on pp. 408, 409, and 417 in Glannon. 

    • When can a party that will have the burden of persuasion/initial burden of production at trial (e.g., plaintiff on her claim) get summary judgment and what must that plaintiff do in support of the motion for summary judgment?

    • Consider the Black Non-Attorney who was denied a job as a lawyer because he is Black and because he is not an attorney. Under the substantive law of "mixed-motive cases," the plaintiff must show that race played a role in the decision, then the burden of production shifts to the defendant to show it would have made the same decision regardless of race. The plaintiff has the burden of persuasion.

        • How could each party move for summary judgment in this case? What are the two material facts the parties will fight over? What would each party need to do to support its motion on each issue?

    • What happens if both parties believe they are entitled to judgment as a matter of law?

    • What happens if a plaintiff gets partial summary judgment? What happens if a defendant gets partial summary judgment?

We then move to Subject Matter Jurisdiction. Prep Overview, in addition to FRCP 8(a)(1), 12(b)(1), 12(h)(3), and § 1332(a).

    • When does each party consider whether the case is in the correct forum?

    • How does each party (the plaintiff filing in federal court and the defendant sued in federal court) present issues about subject matter jurisdiction to the Court?

    • What is the constitutional structure of the federal judiciary? What does Article III tell us about the jurisdiction of the federal courts? What doesn't it tell us about the jurisdiction of the federal courts? What is the connection between Article III and the various statutes, such as § 1331 and § 1332? (Note: We discussed Art. III § 1 and the basic court structure at the beginning of the semester--review those notes).

Essay # 6

Download Regular Type; Download Large Type; and after the jump. Due in class Friday, March 28.

Answer Key for Prelim

Section A: Mean: 9.106/10; Median: 10/10

Section B: Mean: 9.24/10; Median: 10/10

There is no need for me to hand papers back. You can compare your saved paper with this and calculate your points. If you have questions, come see me.

1) B.

    Need same transaction-or-occurrence and common question of law; C covers only the latter.

2) A.

    Certificate of Merit is a legal requirement, so it would go to legal sufficiency or insufficiency. Plaintiff still must plead sufficient facts to establish factual sufficiency.

3) C

    15(a)(1)(B) controls because it is a pleading to which a responsive pleading is required. SXSW has 21 days from when Federal moved. (B) is incorrect because a motion triggers the 21-day clock.

4) C

    Count I seeks contingent liability for current claims against SXSW, so 14(a)(1) allows it. Count II seeks liability for claims unrelated to the current action. But Count I makes SXSW and Federal opposing parties so 18(a) kicks in for Count II.

5) C

   This is futility--the amended pleading will not survive a Rule 12 motion (here a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction).

6) D

    It is not futile if it properly pleads jurisdiction. Whether SMJ is waivable is irrelevant to the issue.

7) B 

     7(a)(5) provides the designation and this is the second time SXSW tried to amend it.

8) C

    Because the entire contract was attached to the pleading, the entire contract is part of the pleading, regardless of which parts the pleading expressly discussed. The 12(b)(6) can address anything in the attached written instrument.

9) A

    Application of the facts pleaded to the law of insurance exclusions. None of the others have any legal meaning.

10) D

    This is legal insufficiency and thus dismissal with prejudice. SXSW has no existing claim against Federal because the insurance exclusion applies. It does not matter what additional facts SXSW could plead--plaintiffs seek a refund, SXSW wants Federal to indemnify it for that refund, and the insurance exclusion precludes that claim.

For Friday

Thursday audio--Section A, Section B. Essay # 6 will post at 12:30 Friday.

Be ready to discuss the problems from Glannon p. 408, 409, and 417.

    • How much of a dispute is "genuine?" What is the slightest doubt test? What did Scott replace it with?

    • Can the Non-Movant oppose summary judgment based on the possibility of disbelief of the Movant's evidence? In Adickes, had the officer denied presence, could Adickes oppose summary judgment by arguing the jury might disbelieve the officer?

    • What is required for a valid affidavit? Does it matter that the affidavit is self-serving? What should the court do if one person's affidavit and deposition diverge. Imagine:

            Adickes Deposition: The student told me the officer was in the store. I didn't see anyone.

            Adickes Affidavit (submitted in opposition to SJ motion): I saw the officer in the store.

    • How does substantive law affect the summary judgment analysis? What if substantive law requires clear-and-convincing evidence? What if, in Adickes, the plaintiff produces evidence of presence but not of communication or agreement--make the argument for defendant on summary judgment.

    • Imagine the Court in Scott adopted a per se Fourth Amendment rule: A person fleeing police at high speeds is per se an imminent threat. How does that affect summary judgment in that case? How does it affect the argument that the video is not one-sided?

 Salazar-Limon v. City of Houston:

    Salazar-Limon sues the City of Houston on a Fourth Amendment excessive force claim arising from an officer shooting him during a traffic stop. Under the Fourth Amendment, an officer's use of force is justified if he reasonably feared an imminent threat to his life or safety. Courts have held that an officer can infer an imminent threat if a suspect reaches for his waistband.

    Defendant moves for summary judgment. Argue both sides.

    The record shows the following:

        Undisputed Facts:

                • Plaintiff was shot in the back

                • Plaintiff did not have a gun.

        Plaintiff Deposition:

            I was walking away from the officer. He shot me immediately after or within seconds of commanding me to stop. I did not turn or have a chance to turn before I was shot; the shot came right after the command. I did not have anything in my waistband.

        Officer Deposition:

            The suspect raised his hands as if he were reaching for his waistband. I shot after he made the motion with his hands towards his waistband.

For Friday

Wednesday audio--Section A, Section B. Prelim due at beginning of class tomorrow. Essay # 6 will post at 12:30 Friday.

We continue Summary Judgment; Make sure to read pp. 57-59 in Nunes v. Lizza; it offers nice synthesis of the summary judgment standard, incorporating the pieces we have discussed and will discuss tomorrow. 

    • If you have not done so, watch the Scott v. Harris video. Was the majority correct that the video is capable of one reasonable understanding? And how does that affect summary judgment? Why did Justice Stevens believe summary judgment was improper?

    • When the burden of production shifts to Party II, what can Party II with that shifted burden?

    • What are the procedures under the FRCP through which parties analyze burden of production, at trial and prior to trial? What is the connection between those procedures and their standards?

    • What did the court require of the movant in Adickes? What about in Celotex? Can you reconcile those approaches? How does current 56(c)(1) reconcile them? What was the problem with the affidavits in Adickes? 

    • What would have happened had Adickes gone to trial? How should that affect summary judgment?

    • How might Adickes have proceeded if the defendants followed the approach in Celotex?

    • How much evidence must the party offer to create a genuine dispute? How much uncertainty about the fact must there be?

    • What form will the evidence take when presented to support and oppose a motion? What evidence did Mrs. Catrett offer and what were the problems with it?

  

Sample Answer--Essay # 5

Essay # 5 available outside my office.

Section A: Median: 10.5; Mean: 10.125

Section B: Median: 17.5; Mean: 18

Comments:

    • Even if the facts seem simple, you must mention them in giving your conclusion. You cannot just say "The amendment is untimely." You must give the facts (date of filing, date of event, length of SL) showing why it is untimely. Note how the sample provides facts--even in a short sentence. Similarly, you must provide the facts (even if simple) about why you are looking to a particular rule--a sentence on how this amendment changes the naming of the party as a reason to apply 15(c)(1)(C). Don't assume away something just because you think it is obvious or simple.

    • It is true that an employee often gets notice from conversations with her employer/supervisor But only if you have facts showing that conversation, which you do not have here. Employment (absent something like shared counsel) is not enough to impute knowledge and our class discussions did not give this as an example. Especially since Walton did not work for PICC at the time of the lawsuit.

    • Too much working from notes rather than the text in stating the rule. That showed for those who read 15(c)(1)(C) to require service within the 4(m) period, as opposed to requiring notice (in whatever form) in that period.

    • Rule 15(c)(1)(C) references the 4(m) service period as the time for the to-be-added party to receive notice. Why does that include the extension the court granted rather than just the original 90 days? This is the crux of the problem.

Some points on sanctions (Updated)

This came up during the Coca Cola exercise yesterday and is worth clarifying:

1) Some argued for Coca that the court should not default it because then Coca would be unable to comply--the case will be over. You need to think a bit more sharply about the purpose of sanctions. Yes, the court wants compliance. But it does not want compliance for the sake of compliance. It wants compliance so the litigation can proceed appropriately, with the Bottler receiving the information to which it is entitled in the litigation. The court imposes the sanction to ensure compliance; but if compliance will not happen, the sanction protects the litigation process and stops the disobedient party from interfering with that process. So the court will be perfectly happy if Coca defaults rather than complies because it gives the court what it wants--the litigation proceeds.

Put differently, the disobedient party cannot weaponize the desire to ensure compliance to mess up the litigation by not complying.

2) Same with the point someone made after class that a default means the case won't be resolved on the merits. Yes, the goal is resolution on the merits, where litigation functions as it should. But a party cannot interfere with the litigation, then complain about non-merits resolution. Compare a court issuing a default judgment under FRCP 55 if the defendant fails to answer--the defendant cannot avoid the default ("but then we will not resolve on the merits") by refusing to litigate.

2.5) For a real-world example of these points: See the reporting and commentary around the lawsuits by parents of the Sandy Hook shooting victims against Alex Jones. Jones refused to cooperate in discovery, the judge defaulted him on liability, then held trial on damages, awarding multi-millions in damages. Many argued that the court had violated the First Amendment by denying Jones the opportunity to raise (potentially valid) First Amendment defenses. But valid substantive defenses or rights do not allow you to ignore the rules of litigation. At some point (and the court was very patient), misbehavior within litigation leads to the loss of rights.

3) (b)(2)(A)(v) and (vi) are opposite sides of the coin--the disobedient party loses if it will not comply. (v) (dismissal) applies where the disobedient party brought the claim; (vi) (default) applies, as in our case, where the disobedient party is defending the claim.

4) See FRCP 37(a)(2)(C), which gives the court the option of imposing costs of the motion, including attorney's fees, in lieu of the listed (a)(2)(A) sanctions. So on the first go-round, a court could decide to impose costs, give the party additional time to comply, and see what happens. If it still does not comply, then an (a)(2)(A) sanction becomes appropriate. Again, it depends on the nature and blatantness of the disobedience.

For Wednesday

Friday audio--Section A, Section B. Prelim Exam due at the beginning of class next Thursday. Essay # 6 will post at 12:30 p.m. on Thursday.

We continue with Summary Judgment: Standards and Procedures. Be sure to review FRCP 50.

   • What is the connection between discovery and summary judgment?

    • How does summary judgment differ from 12(b)(6) and 12(c)? What will the court consider on a motion for summary judgment? What is a stipulation?

    • What is an affidavit or declaration (and how do they differ)? How else can a party preview a witness' testimony besides an affidavit or declaration? What is the difference and when will the party choose one or the other?

    • Break down the elements of FRCP 26(a) and the meaning of each key term. Think of how these terms apply in Scott, Adickes, and Celotex. What are the key facts in each case? How does the court decide each of these terms without acting as factfinder?

    • What is the burden of production and the burden of persuasion?

    • How do FRCP 50 and 56 relate to one another, according to Celotex?

    • What was wrong with the affidavits in Adickes? How could they have been corrected?

    • Can you reconcile Adickes and Celotex in terms of what the movant must do to support a summary judgment motion? What would have happened, on the evidence the plaintiff had, if Adickes had gone to trial? What does Justice White's concurrence in Celotex add to this question?

    • Imagine the plaintiff in Adickes opposing summary judgment via the Celotex method. What could the defendant ask for in discovery, how could plaintiff respond, and how could summary judgment proceed?

    • What makes a dispute genuine? How genuine must it be? How much uncertainty can there be about a fact to be in dispute?

    • What form must the evidence be on summary judgment? What evidence did Mrs. Catrett have in Celotex? 

Something else to consider: What is the argument that Scott was wrongly decided because the Court's approach to video was wrong?

Sample Answer--Essay # 4 (Sec. A)

• This is not a constitutional law class, so I do not need to see you analyze the constitutional validity of qui tam actions. The question was how you raise it and present the arguments (whatever they may be).

• The question said the defendant wanted to challenge constitutionality, not the sufficiency of the allegations. So no reason to discuss 9(b). Plus, you only had part of the complaint, so there was no way to evaluate the allegations that you did not see. The *** indicates omitted stuff.

• Give rules and define terms. What is an affirmative defense? Why is this an affirmative defense? Then you can start talking about how to raise it. Don't assume the legal principles are obvious. What is a "built-in" defense and how does that affect your analysis.

• Legal principles--such as the meaning of Article II--are not facts. They are law that the court looks at when evaluating a pleading based on the facts.

Sample Answer--Essay # 4 (Sec. B)

Mean: 12.85; Median: 15

• The question gave specific facts and positions each person wanted to take. The analysis should focus on how the parties will pursue those positions; no need to talk about all the other things they can (but do not want to) do in responsive pleadings. Yes, Swanson could bring a claim against All State--but the facts you had did not indicate he wanted to do that, so there was no reason to discuss. Yes, a defendant raise an affirmative defense of contributory negligence--but the facts you have do not indicate Swanson wanted to or that he had the facts to support it. The question identified specific positions each person wanted to take; so your analysis should have focused on how they litigate those positions, not other positions that do not matter to what they want to do.

• Don't ignore REA. Explain what a third-party complaint is before talking about what a party will file.

• The question talked about raising these issues in pleadings. A motion is not a pleading, so there was no reason to talk about motions. Work with the specific questions and specific information you have--don't talk about everything that could happen.

Preliminary Exam

Regular type. Large type.

Ten multiple-choice questions, worth five points each.

Due in class next Thursday, March 20.

For Friday

Wednesday audio--Section A, Section B.

    • Essay # 5 due in class Friday. Please  note the typo correction on Essay # 5--Defendant concedes the Plaintiff made a mistake. Again, it should not affect your essay.

    • Prelim Exam posted at 9 a.m. tomorrow. Instructions are up.

    • Section B meets at noon Friday; Section meets at 2 p.m. Friday. We will go an extra 20 minutes.

We will continue our conversation about finding the appropriate sanction, given the options in FRCP 37(b)(2)(A) (as incorporated).

We will spend much of Friday on Coca Cola:

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?

        • How might the FRCP 26(f) discovery conference eliminate much of this dispute?

We then move, time permitting to Summary Judgment: Standards and Procedures. Prep everything assigned.

    • What is the connection between discovery and summary judgment?

    • How does summary judgment differ from 12(b)(6) and 12(c)? What will the court consider on a motion for summary judgment? What is a stipulation?

    • What is an affidavit or declaration (and how are they different)? How else can a party preview a witness' testimony besides an affidavit or declaration? What is the difference and when will the party choose one or the other?

    • Break down the elements of FRCP 26(a) and the meaning of each key term. Think of how these terms apply in Scott, Adickes, and Celotex. How does the court decide each of these terms without acting as factfinder?

Note that Salazar-Limon is not a case to read but another problem that I will give you on the blog next week.

Essay # 5 (Both Sections) Clarification

In the Defendant's Motion, it should read that she concedes that Plaintiff made a mistake. Does not affect your answer in any way. Corrected versions attached.

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.

Preliminary Exam Instructions

Regular type; large type; and after the jump. It will post at 9 a.m. Thursday, March 13.

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?

 

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)

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Essay # 3 (Sec. A)

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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.