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

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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)

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Essay # 1 (Section A)

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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?

The risk of performative litigation

I mentioned the 129-page complaint against Haverford College over its alleged failure to protect students from anti-Semitism. The district court dismissed the complaint (analyzed here, with a link to the opinion), in part because "[a]s a result of Plaintiffs' scatter pleading, any serious allegations of actionable discrimination are buried as needles within a haystack of distraction."

The analysis in the opinion will not make sense just yet because we have not covered what it means to plead a sufficient claim under FRCP 8(a)(2); you will understand in a few weeks. But it gives you a sense of what can happen when the complaint goes for too much soapbox oratory.

For Thursday

Wednesday audio--Section A, Section B.

Review all materials for Joinder of Claims and Parties.

    • What work does FRCP 18(a), 20(a)(1), and 20(a)(2) do (or not do) in each of our complaints?

    • What are the reasons behind the broad scope of joinder of claims in FRCP 18(a)? (Hint: Don't stop with simple efficiency).

    • What are the benefits and drawbacks to broad (but not unlimited) joinder of parties under FRCP 20(a)(1)? How do the rules strike the balance between those benefits and drawbacks?

    • The phrase "same transaction or occurrence" appears in several rules. See p.454 in Jones v. Ford Motor for the common definition that courts also use for FRCP 20(a) (in addition to FRCP 13, at issue in Jones).

        • What does this mean about the facts giving rise to different claims between different parties?

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

    • Be ready to discuss whether joinder of parties and claims is proper in Morgan, Godin, and VOA, applying the text of 18(a) and 20(a) and Ford's definition of  In particular, 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 VOA:

            BSO and VOA had a previous deal, from 10 years ago, for the symphony to use VOA photos in a performance. BSO has never paid for the use of those photos.

    • 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 claim standing alone and/or along with her Loss of Consortium claims).

            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.

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

Structure of Litigation (& Class)

I skipped this in class today to save time, but I wanted to place it here. This reflects the basic structure of litigation and thus the basic structure of this class. Our focus will be on ## 1-4 (collectively referred to as the "Pretrial Process" and a little bit on # 8.

1) Pleadings: Papers filed to initiate and move the case forward. We began this on Friday and it will take up about the first 6 weeks of the class.

2) Discovery: This is the voluntary exchange of evidence and information. It comes after the pleading process is complete and sets up either dispositive motions or trial.

3) Motion Practice: The filing of motions, particularly "dispositive motions" that will end the case without trial. There are 3 basic points in time for dispositive motions.

4) Settlement & Other Resolution: Most cases settle or are resolved without a judicial decision.

5) Trial: To resolve factual disputes before the factfinder (usually but not always the jury). Less than 3 % of federal cases go to trial.

6) Judgment: Under FRCP 58, the court files a paper labeled a "Judgment" that brings the case to an end. That judgment comes regardless of how the case was decided--some motion or at trial.

7) Appeal: Subject to the Final Judgment and some limited exceptions that will not apply to much of what we do in this class.

8) Finality: The trial and appellate process has been exhausted or completed. The litigation is final and cannot be revisited--we expect the parties to get on with their lives and abide by the result in court. Plaintiff must file a separate litigation to collect on a monetary judgment (this is what is going on with Rudy Giuliani and may see him held in contempt of court). A judgment in an equity action (e.g., an injunction) is subject to ongoing judicial oversight and enforcement. FRCP 60(b) provides limited circumstances for reopening a judgment. Most importantly, res judicata or preclusion kicks in--the parties may not relitigate in other cases what already was litigated and resolved in this case.

 

Again, our focus will be ## 1-4 and a little bit about # 8. You can see that the syllabus follows this basic flow.

For Wednesday

Friday audio--Section A, Section B.

Please have all documents with you and please work from them in class. If you have not gotten the FRCP pamphlet, print out the assigned sections until you do. Make sure you have copies of all documents.

Prep all of Pleading: Introduction to Pleading.

    • Review the four complaints (Naruto, VOA, Morgan, and Godin) and how they conform to the rules for structure and organization in FRCP 8 and 10.

    • What is the purpose of a complaint, from the perspective of the judicial system and the perspective o the plaintiff? How does our being an adversary system affect how the plaintiff drafts the complaint and how we should understand what is in the numbered paragraphs? How do each of our complaints attempt to serve these purposes?

    • What stops a plaintiff from making stuff up in the complaint?

Then move to Joinder of Claims and Parties. For Wednesday, consider:

    • What is the difference between FRCP 18 and FRCP 20?

    • What makes someone "opposing parties?? 

    • What claims can one plaintiff join against one plaintiff? Why allow broad joinder of claims?

        • Imagine BSO had used VOA photos without permission for a different season 10 years ago. Could VOA include that claim against BSO in this suit?

        • Imagine Krista Millea bought a defective microwave from Walmart. Could she include that claim against Walmart in this suit? 

    • Looking at our four cases, what work is FRCP 18(a) doing in each? What work is FRCP 20(a)(1) doing? What work is FRCP 20(a)(2) doing?

For Friday (Both Sections)

Thursday audio--Section A, Section B.

Clarification on the jurisdiction pairs: They are distinct pairs and every type of jurisdiction will have a piece of both: A court with original jurisdiction can have exclusive original jurisdiction (the only court to be the first to hear the case) or concurrent original jurisdiction (it has original jurisdiction or another court would have original jurisdiction). This all informs parties where they can file suit: Under § 1332, the district court has original jurisdiction and Morgan could (and did) file there. Because § 1332 does not say exclusive, another court also could exercise original jurisdiction (namely, a state court) and Morgan could have (but chose not to) file there.

We begin with §§ 2072-2074 (Rules Enabling Act of 1934). What is the process by which the Federal Rules of Civil Procedure are enacted? What is Congress' role? 

Then move to Introduction to Pleading; prep all assigned rules.

    • Review FRCP 2 and 3. What are the basic facts, law, and remedies sought in each case--be ready to give an elevator pitch (30 seconds) on each case.

    • The federal rules are said to be "trans-substantive." What does that mean? Is it a good idea?

    • A claim for relief is defined as "a set of facts showing a violation of one right of one party by one party justifying relief." What does that mean? Looking at the four assigned pleadings (VOA, Naruto, Morgan, Godin), how many claims are in each?

    • How do the pleadings conform to the structure of FRCP 10?

For Thursday (both sections)

Wednesday audio--Section A, Section B. Seating chart and Syllabus/Assessment questions tomorrow.

Review the materials from Introduction to Civil Procedure. Plus, look at FRCP 2 and 3.

    • Review the materials (from the Blog) showing the structure of the federal and Florida judicial systems. In addition, look at § 1257 (also on p. 512 in rules pamphlet) and this chart on the basic structure of the federal judiciary (look in conjunction with the map you already have).

    • Who can create rules of procedure for a court--what are the possible sources? Prior to 1938, federal trial courts applied the procedural rules of the state in which they sat (e.g., the Southern District of Florida applied Florida procedure; the District of Idaho applied Idaho procedure); what are the drawbacks to that system?

    • Carefully read §§ 2071-2074 (the "Rules Enabling Act"). What is the process for creating the Federal Rules of Civil Procedure? What is the role for Congress and the courts?

    • Courts in the United States operates as an "adversary system"--what does that mean? What is the theory behind that?

    • What does "jurisdiction" mean? Consider the distinction between two pairs: "Original" v. "Appellate" jurisdiction and "Concurrent" v. "Exclusive" jurisdiction. What is the consequence of appellate review being limited to "final" orders?

    • Review FRCP 2 and 3. And begin to familiarize yourself with the facts, law, and remedies sought in each case.

    • The federal rules are said to be "trans-substantive." What does that mean? Is it a good idea?

    • You have the complaints from four cases. What is the purpose of the complaint? What does the plaintiff want to achieve through his complaint?