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?