Local Rules and Judges' Rules (Updated)

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

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

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

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

Some things on FRCP 15(a)

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

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

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

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

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

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

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

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

For return from break

Friday audio--Section A, Section B.

Some scheduling stuff for our return:

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

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

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

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

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

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

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

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

This will complete our discussion of pleading

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

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

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

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

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

    • What is the connection between discovery and notice pleading?

    • What is the connection between discovery and notice pleading?

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

Sample Answer: Essay # 3 (Section A)

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

 

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

Sample Answer: Essay # 3 (Section B)

 

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

 

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

For Friday

Thursday audio--Section A, Section B.

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

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

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

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

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

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

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

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

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

Thoughts on Same Transaction or Occurrence and other additional claims

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

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

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

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

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

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

For Thursday

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

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

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

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

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

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

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

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

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

    • What should the last document be called?

            • A files a complaint

            • X files an answer

            • A files a complaint

            • X files an answer

            • A files a complaint

            • X files __________

    • What should the last document be called?

            • A files a complaint

            • X files a 12(b)(6)

            • A files a complaint

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

            • X files an answer

            • A files a complaint

            • X files an answer

            • A files a complaint

            • X files an answer

            • X amends to file a _______

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

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

    • What are the six considerations for leave in Foman?

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

For Wednesday

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

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

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

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

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

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

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

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

For Friday

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

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

We then turn to new claims:

    • What rules govern in pleading additional claims? What happens in response to those additional claims? Who can those claims be brought against? What happened procedurally in Jones?

    • What is the common standard for bringing additional claims?

We will work through the following case (this expands on the problem in Glannon pp. 246-47). Map out all the claims, decide what type they are, and whether they must, can, or cannot be brought. (As always, assume jurisdiction over each and focus only on the FRCP). Everything arises from the deal between Holmes and Clear Code (negotiated by Cosgrove) to produce some code for Holmes. Consider the opening procedural steps in all of this and then go from there.

• Holmes against Clear Code for breach of contract for failing to provide working code.

• Holmes against Cosgrove, Clear Code's former president, for fraud in the inducement for inducing Holmes to enter into the contract

• Clear Code against Holmes for non-payment on this contract.

• Clear Code against Holmes for non-payment on a prior job

• Cosgrove against Clear Code for indemnification of any judgment Cosgrove must pay to Holmes.

• Cosgrove against Clear Code for wrongful termination (Clear Code fired him after the Holmes deal went bad).

• Clear Code against Cosgrove to enforce a non-compete, to stop Cosgrove from working for a competitor

• Clear Code against its insurance provider, for indemnification under their insurance contract.

• Clear Code against Jasper for making bad code (Clear Code sub-contracted the Holmes job to Jasper).

• Jasper against Clear Code for non-payment.

• Jasper against Clear Code for non-payment on a past job.

• Jasper against High Tech for selling a defective computer (which caused Jasper's bad code).

• Jasper against Holmes for Quantum Meruit (to recover the value of the work done on the project)

• Jasper against Holmes for Defamation (Holmes told people Jasper was a bad coder)

• Holmes against Jasper for Tortious Interference with his original deal with Clear Code.

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

Essay # 3 (Sec. B)

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

Essay # 3 (Sec. A)

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

Pleading Board

 

For Thursday

Wednesday audio--Section A, Section B. Essay # 3 will post at 12:30 tomorrow, due in class on Thursday, February 20.

We pick-up where we left off: The court has struck an insufficient defense (as in Zielinski) or plaintiff sees that defendant failed to deny some allegations. What is plaintiff's procedural move? How can each party (plaintiff or defendant) use FRCP 12(c)?

The next two days will be spent on Affirmative Defenses and New Claims. I am going to give you stuff for both days now and advise you to prep all for tomorrow, although we will not get too far into new claims until Friday. So prep everything except FRCP 41 and 55.

For Affirmative defenses, the following offers a good definition: "Allegations or statements of new matter, in opposition to a former pleading, which, admitting facts in such former pleading, shows cause why they should not have their ordinary legal effect." What does "they" refer to? What former pleading? What is the ordinary legal effect? Consider:

    • What affirmative defenses are available and where do they come from? What affirmative defenses did Winston include? What is wrong with how they were pleaded in Winston?

    • What is the difference between a fact being an element of a claim and an element of an affirmative defense? How do you figure out which something is? How does it affect pleading?

    • How could a fact be part of a claim or defense and how does it affect pleading in the following? Consider how pleading is affected by whether facts are part of the claim or the defense:

        • Debt: 3 facts: 1) Money borrowed; 2) Money due; 3) Money paid or not

        • Sexual Battery: 1) Sex; 2) Consent or not

    • How did Winston arguably err in his consent defense? See ¶ 49 and the affirmative defenses.

    • What is the connection between 12(b)(6) and 8(c)? What are the procedural mechanisms for a defendant ask the court to decide on an affirmative defense? Consider the example of a statute of limitations defense (that a claim was filed more than two years after the events).

Late tomorrow and Friday we will turn to new claims.

    • What rules govern in pleading additional claims? What happens in response to those additional claims? Who can those claims be brought against? What happened procedurally in Jones?

    • What is the common standard for bringing additional claims?

Starting Friday, we will work through the following case (this expands on the problem in Glannon pp. 246-47). Map out all the claims, decide what type they are, and whether they must, can, or cannot be brought. (As always, assume jurisdiction over each and focus only on the FRCP). Everything arises from the deal between Holmes and Clear Code to produce some code for Holmes. Consider the first procedural steps in all of this.

• Holmes against Clear Code for breach of contract for failing to provide working code.

• Holmes against Cosgrove, Clear Code's former president, for fraud in the inducement for inducing Holmes to enter into the contract

• Clear Code against Holmes for non-payment on this contract.

• Clear Code against Holmes for non-payment on a prior job

• Cosgrove against Clear Code for indemnification of any judgment Cosgrove must pay to Holmes.

• Cosgrove against Clear Code for wrongful termination (Clear Code fired him after the Holmes deal went bad).

• Clear Code against Cosgrove to enforce a non-compete, to stop Cosgrove from working for a competitor

• Clear Code against its insurance provider, for indemnification under their insurance contract.

• Clear Code against Jasper for making bad code (Clear Code sub-contracted the Holmes job to Jasper).

• Jasper against Clear Code for non-payment.

• Jasper against Clear Code for non-payment on a past job.

• Jasper against High Tech for selling a defective computer (which caused Jasper's bad code).

• Jasper against Holmes for Quantum Meruit (to recover the value of the work done on the project)

• Jasper against Holmes for Defamation (Holmes told people Jasper was a bad coder)

• Holmes against Jasper for Tortious Interference with his original deal with Clear Code.

 

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

Several people have asked:

Sample Answer--Essay # 2 (Both Sections)

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

 

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

 

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

 

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

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

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

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

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

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

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

Essays ## 1-2

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

Sample answers will post in the morning. 

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

A few general comments common to all:

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

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

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

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

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

Don't be this lawyer, Ep. 211

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

Two things of note:

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

2) Don't do this.

Essay # 2--The Real Outcome

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

For Wednesday

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

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

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

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

    • Must the defendant explain a response?

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

    • What is the remedy for an improper defense?

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

For Friday

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

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

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

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

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

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

For the same reasons, this Court cannot simply credit Vullo’s assertion that “pursuing conceded violations of the law,” Brief for Respondent 29, is an “ ‘obvious alternative explanation’ ” for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns, id., at 37, 40, 42 (quoting Iqbal, 556 U. S., at 682). Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

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

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

Three follow ups on class stuff

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

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

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

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

 

For Thursday

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

Continue with  Future of Federal Pleading.

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

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

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

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

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

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

For the same reasons, this Court cannot simply credit Vullo’s assertion that “pursuing conceded violations of the law,” Brief for Respondent 29, is an “ ‘obvious alternative explanation’ ” for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns, id., at 37, 40, 42 (quoting Iqbal, 556 U. S., at 682). Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.