Essay # 2 (Both Sections)

Available outside my office.

Section A 

Median: 33

Mean: 30.1

High:42

 

Section B:

Median:31

Mean:31.4

High: 41

Essay # 3 (Section A)

Available outside my office.

Median: 25

Mean: 23.4

High: 29

Essay # 3 (Section B)

Available outside my office. 

Median: 26

Mean: 26.14

High: 36

For Wednesday, March 4 (back from break)

Friday audio--Section B, Section A. Expect Essay # 4 to post on the Friday we return. Expect the Prelim Exam to post the following Friday.

For Wednesday, prep the remainder of Amendments. That will take us through the Wednesday and part of Thursday when we return. We then will move into Discovery beginning on Thursday.

Have a great break. 

For Friday, February 20 (and into break)

Thursday audio--Section B, Section A (forthcoming). 

We continue with Amendments. Prep everything but Krupski and Herrera. Prep through Question 16. Our focus is going to be the text of 15(a)(1), Foman's interpretation of 15(a)(2), and the six factors Foman introduces. Be aware of the basic principle of relation back, although we will not dive into its elements until after break. 

 Work the following: A files a Complaint. It receives leave to amend; it files an Amended Complaint. It then files a Second Amended Complaint, without seeking leave. What should Defendant do if it believes the Second Amended Complaint is not properly filed. Is it properly filed?

For Thursday, February 18

Wednesday audio--Section B, Section A. Essays ## 2 and 3 due in class tomorrow.

Prep the remainder of Responsive Pleadings. Work through all of Holmes; identify each claim and determine whether it is properly brought in this litigation. Consider also the counterclaims in Kinsmann, Bose, and Jones. Consider how FRCP 18(a) fits into all of this.

We might get to the beginning of Amendments at the end of class. Review FRCP 15(a)(1) and (2), Questions 1-3, and the two puzzles for this section. We are going to parse and break down the text of all parts of FRCP 15(a).

Sample Answer--Section B (Updated and Moved to Top)

Stats: Mean: 28.4; Median: 24; High:40

Sample answer after the break.

Sample Answer-Section A (Updated and Moved to Top)

Stats: Mean: 25; Median: 32; High: 37

Answer after the break. 

Anticipating defenses in the complaint

During the discussion of the "office deal" statute, some suggested that the plaintiff should plead "not office" as an element, just to be safe. But the effects--taking on the burden of persuasion--weigh against that. The better answer there is for plaintiff to plead the cause of action as she understand it, be ready to fight for that position on the eventual dispositive motion, and be ready to change strategy if she is wrong. That actually captures why we allow dismissal without prejudice--it gives parties a chance to correct mistakes or change course if what they initially believed the law to be turns out to be wrong.

But the discussion also raised a slightly different idea--whether plaintiff in the complaint should anticipate and respond to likely defenses. Someone raised the prospect of pleading a response (e.g. tolling) to an anticipated limitations defense to a complaint the plaintiff knows was untimely filed. This case offers another example--the plaintiffs sued several members of Congress over their votes on legislation giving money to Israel, conduct that everyone knows is absolutely protected from civil liability by legislative immunity under the Speech or Debate Clause.

There are two pieces to this: One is the strategic question of how best to litigate your case. The other is the ethical question of whether filing a complaint the plaintiff knows to be subject to a strong defense (unless the plaintiff has a response or is arguing for an extension of the law) violates Rule 11.

There are two schools on this. On the strategic point, pleading the anticipated response probably will not make that much of a difference. Perhaps seeing the tolling facts in the complaint will cause the defendant not to bother filing the motion, realizing his defense will fail. More likely, the defendant already knew what the plaintiff's tolling argument will be, so this is not news to him. The defense's incentive remains the same--file the motion, make the plaintiff respond, and let the court decide. Same with the Israel suit--defendants will move to dismiss on immunity grounds, regardless of what the plaintiff includes in the complaint.

The Rule 11 concern might play differently. By pleading the response to the anticipated defense, perhaps plaintiff signals to the court that they have done their homework and filed a claim well-grounded in law and fact: They acknowledge the claim was filed after the limitations period but show why the claim is nevertheless timely; they acknowledge that legislators ordinarily cannot be sued but show the planned request for an extension of the law. One can see both sides of this point. For example, the silence of the plaintiffs in the Israel suit suggests they had not really considered the issue at all, making this sanctionable.

But note how this flattens out what should be a sharp distinction between claims (raised by plaintiff) and affirmative defenses (raised by defendant). After all, what if the defendant messes up and fails to raise that affirmative defense? Perhaps the plaintiff--as a matter of ethics and strategy--should be able to plead her claim (as the law defines it); put the onus on the defendant to raise his proper defenses; and respond as necessary?

No right answer. Strategic points to think about. 

A word on essays

I am working through the first batch of essays. They are, overall, quite good.

Some additional stylistic points, which I think the sample answers reflect:

    • Avoid "narrating" your answer--"the court does X, now the court does Y." Just do X and Y, explaining why it matters.

    • Avoid talking (or severely limit how much you talk) about the parties or the other side. Rather than "plaintiff argues X, but plaintiff is wrong about X" or "defendant argues Y, here is how I resolve Y," just analyze and explain X or Y. It saves you words (which are sparse) and reads much better.

For Wednesday, February 18

Thursday audio--B; A. Essays ## 2 and 3 posted; due in class next Thursday.

Think about what happens if the defense tries to use 12(c) on an affirmative defense, after the plaintiff has filed a reply to an answer. The court takes the facts in all pleading, if disputed, in light most favorable to the non-movant and then decides whether the non-movant could prevail.

Prep the remainder of Additional Claims. Work through the entirety of Holmes, identifying each claim by each party, whether it can be brought, why and how? Consider the requirements for counterclaims, crossclaims, and third-party claims in terms of relatedness and compulsoriness. Why make some counterclaims compulsory? Why are crossclaims and third-party claims never compulsory?

Essay # 3

Download here.

Due in class next Thursday. 

Essay # 2

Download here.

Due at beginning of class next Thursday. 

For Thursday, February 12

Wednesday audio (only Sec. B recorded--same stuff). Essays ## 2 and 3 drop at 12:30 tomorrow; due in class on Thursday, February 19. No class this Friday.

One quick note: Contrast Winston's approach to the answer--provide a lot of detail, a lot of new facts, and present a counter-narrative--with the far more common approach described in King Vision, where defendants refuse to admit (or even respond to) anything and end up with a document full of nonsense. Neither is consistent with the FRCP, although for different reasons. But only rarely (as with Judge Shadur in King Vision) do judges or plaintiffs bother to do anything about it.

Prep the remainder of Affirmative Defenses. Consider the following additional problem for identifying what is the claim and what is an affirmative defense:

    § 1: Prohibited Conduct: No person shall cause a retirement plan to engage in a transaction if he knows or should know that the transaction constitutes an agreement with a party in interest.

    § 2: Transactions Exempted The prohibitions provided in § 1 shall not apply to a contract or reasonable arrangements for office space.

A sues X under § 1 over a transaction that might be one for office space. What must plaintiff plead in his complaint? 

Move to Additional Claims. Prep everything but Rules 41 and 55 and Jones, prepping Questions 1-7. Start putting together the pieces of the Holmes v. Clear Code puzzle; for tomorrow, identify the label for each claim.

Complaints

The complete chart for the Complaint. Obviously you will fill in the details; this provides the basic framework.

 

 

For Wednesday, February 11 (Revised)

Wednesday audio--B; A. Essay # 1 has been posted--make sure you have the updated version. Due next Wednesday in class. Can someone from Section B please send me a photo of today's board?

We will have a few final words on Twiqbal. Then moved to Responing to a Complaint: Responsive Pleadings. Prep both Failure of Proof Defenses and Affirmative Defenses (Questions 1-3) for Wednesday; I hope to get to the latter toward the end of class. For Thursday, we will finish Affirmative Defenses and begin New Claims.

Essay # 1 (Both Sections) (Corrected)

Download here. (Typo corrected in the caption--please use the updated version).

Due at the beginning of class next Wednesday, February 11.

Writing Reminders in advance of Essay # 1

In advance of Essay # 1 posting (and ## 2 and 3 coming next week), some further reminds about the importance of good, organized writing. I refer you to Good Writing and Talking Procedure and the sample essay and answer, which shows how you should approach, organize, and analyze problems. In addition, this doc reprints two Twitter threads by Joe Regalia on writing tips--the first on Justice Kagan's writing and the second a general, advanced tips.

A few additional points: If you are asked to argue or resolve a motion, your starting point should be your conclusion--grant or deny (or grant in part and deny in part). Your real analysis begins with the motion presented--what the motion seeks, the rule it comes from, what the rule it says, and the standard. That will take you into whatever other rules and analysis governs the answer to the motion. You can see this in the sample answer.

For Wednesday, February 4

Friday audio: Section B, Part I; Section B, Part II. Section A, Part I; Section A, Part II.

Essay # 1 will post on Wednesday. 

Complete The Future of Federal Pleading. With respect to the idea of "obvious alternative explanations," consider what the Court said in NRA v. Vullo:

The NRA sued a NY state official for a First Amendment violation, alleging that the official had threatened to investigate (or drop investigations against) insurance companies if they stopped providing services to the NRA. The official argued that an "obvious alternative explanation" for these actions was pursuing violations of state law and the ordinary give-and-take of negotiation between government and targets of an investigation. At pp. 16-17, the Court said this:

[T]his 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.

For Friday, January 30 (Double Session)

Thursday audio--B; A. Essay # 1 will be posted at 12:30 next Wednesday, February 4; due at the start of class on Wednesday, February 11.

Don't get too caught up in the floor/ceiling thing--it is more a way of thinking about how judges view the rules and how they should view the rules. If the complaint is larded up with a lot of extraneous pleading-as-press-release stuff, it is improper and subject to having the extra stuff struck under 12(f). It would be better if Judge Merryday recognized the problem as the pleading containing immaterial or scandalous matter for 12(f) purposes, rather than saying the complaint exceeds the short-and-plain statement 8(a)(2) allows. But in Trump we end up in the same place--the court struck the pleading (or the improper parts of it) under 12(f). The issue is what the basis should have been for striking. Again, the courts do a lot of stuff in the margins of the rules to make the system hum along, even if not textually warranted.

Corrected schedule for tomorrow's double classes:

    Section B: 9:30-10:40; 20-minute break; 11-12:10

    Section A: 1-2:10; 20-minute break; 2:30-3:40. 

Prep all of Heightened Pleading; be ready to discuss the arguments for and against special treatment of fraud. Prep Present and Future; focus on Twombly and Iqbal and the new standard it created, including Questions 1-4. Don't worry about applying the standard to VOA and Godin; save that for next week. Be ready to discuss how the Court analyzed the pleadings in Twombly and Iqbal. 

 

For Thursday, January 29

Wednesday audio--B; A. Essay # 1will post next Wednesday (Feb. 4) and due the following Wednesday (Feb. 11). Clarifiying schedule for Friday make-ups:

    Section A: 9:30-10:40; 20-minute break; 11-12:10

    Section B: 1-2:10; 20-minute break; 2:30-3:40. 

We pick up with FRCP 12(f), so review Trump and Doe.

For tomorrow: Prep The Idea of Notice Pleading and  Fact or Heightened Pleading (except Swierkiewicz). FRCP 9(b) (and § 78u-4(b)) represent our first non-trans-substantive rules. Consider the likely/possible rationales for treating fraud and mistake differently than other claims and whether those rationales justify special treatment.

For our double session Friday, we wil finish Fact or Heightened Pleading (including Swierkiewicz), then move to Present and Future of Federal Pleading,

Another Complaint

 (H/T: Richard). Another example of a complaint, to see structure, framing. etc.

For Wedesday, January 28

Friday audio--A, B. Remember that we will do our first make-up session on Friday, January 30. Section B will meet 9:15-10:35, take a 25-minute break, then return for our regular time. Section will have our regular session (1-2:20), take a 40-minute break and reconvene from 3-4:20 (our regular time).

We continue with Motions. We start with the 12(b)(6) analysis in the Naruto motion. Prep FRCP 12(f), (g), and (h) (I left them off the syllabus). FRCP 12(g) and (h) guide you through the 7 12(b) defenses and the waiver puzzles in A v. X.

Expect to begin The Idea of Notice Pleading on Thursday. 

For Friday, January 23

Thursday audio--B, A.

Point of Clarification: FRCP 18, 19, 20, and 24 are all about one civil action--what parties and claims are joined in that one civil action. FRCP 42 involves multiple civil actions that remain separate civil actions, especially for finality; it simply allows some parts of those separate civil actions to be litigated together.

Puzzle to work on in your own time: VOA sues BSO on the breach of contract claim in state court; court issues final judgment. VOA then then sues BSO for copyright infringement in federal court. Is the second action precluded? Consider the "could have been brought" requirement. 

We move to Responding to a Pleading: Motions. For Friday, prep all assigned rules except 12(c), 12(e), 15, 16, and 41. Read PAE; wait on Trump and Doe. Read Glannon pp. 401-17. Prep the motion in Naruto. Prep Questions 1-14.

For Thursday, January 22

Wednesday audio--Section A only.

Clarification: Severing under FRCP 21 means placing a claim between parties into a separate civil action. Ordering separate trials under FRCP 20(b) means all claims and parties remain part of one civil action; we will just try hold different trials on different claims rather than all in one trial. Review the post on the structure of litigation--trial is one small, rarely reached piece of litigation or of a civil action.

Review and prep the remainder of Joinder. How should Rule 20 handle the problem presented in Jones--one large defendant's conduct injuring many people at different times. How does the plaintiff's framing of the case matter? What is Morgan's theory of Walmart liability for the accident? How (based on what you learned in torts) might Morgan have argued the case differently, creating a different joinder situation? What are the requirements of issue and claim preclusion? Prep the remaining questions and puzzles for this section.

On Friday, we will turn to Responding to a Pleading: Motions. For tomorrow, review FRCP 7(b) and the assigned portions of Rule 4. 

Essay Assignments--Section B (Udpated)

After the jump you will find essay assignments. There are ten essays, spread across the semester. Nine essays have seven (7) people assigned; one essay has six (6) people assigned.

Each essay posts to the blog a day or two after we finish the relevant topic; it is due in class one week later.

I will try to give about a week notice as to when an essay will post. I expect Essay # 1 to post at the end of the third week or middle of the fourth week of the semester.

Essay Assignments--Section A (Updated)

After the jump you will find essay assignments. There are ten essays, spread across the semester. Each essay has seven (7) people assigned. Review the list and make sure you have an assignment.

Each essay posts to the blog a day or two after we finish the relevant topic; it is due in class one week later.

I will try to give about a week notice as to when an essay will post. I expect Essay # 1 to post at the end of the third week or middle of the fourth week of the semester.

For Wednesday, January 21

Friday audio--Section B, Section A. We will do our first make-up session on Friday, January 30. Section B will meet 9:15-10:35, take a 25-minute break, then return for our regular time. Section will have our regular session (1-2:20), take a 40-minute break and reconvene from 3-4:20 (our regular time).

Prep the rest of Joinder, which will take us through Wednesday and much of Thursday. Be ready to analyze (doing REA, as if writing an essay) whether joinder is proper in VOA and Morgan, including Krista's products liability claim and the claim by Jones (the other driver injured on the New Jersey Turnpike). Be ready to discuss the policy benefits and drawbacks to Rule 20 joinder.

Couple points of clarification:

    Questions of whether claims or parties can be joined have nothing to do with: 1) whether those claims can be pursued in court at all or 2) whether those claims have merit. Obviously VOA can file a civil action including its old contract claim and it may or may not succeed; Rule 18 is concerned with whether VOA can include it in this lawsuit. Obviously both victims of my fraud can file civil actions and include claims against me for fraud and those claims may or may not succeed; Rule 20(a)(1) is concerned with whether the victims can sue in one action rather than having to do so separately.

    A point someone raised after class about pleading-as-press-release: It may derive from a tendency ito turn a singular dispute into part of a broader social injustice, thus prompting more public-directed rhetoric and hyperbole in the complaint. It is not enough to pursue a claim about one incident; it has to be about the broader social problem. But in pleading about that social problem (whatever it may be), you lose the thread of the actual dispute. And query whether you cease to serve your client's best interests.

Some people asked about doing outlines. Wait until about next Thursday and you will start to see the best way to organize at least this first part of the outline. 

Please note the Essay Assignments have been updated. Please check that you are on there.

For Friday, January 16

Thursday audio--Section B, Section A.

We continue with Introduction to Pleading. What is the "theme" of VOA? What is the "theme" of Naruto? Who is a Complaint written for (who might you be speaking to) and how does that affect how you draft it? Review all four of our complaints for how they conform to the structural requirements of Rules 8 and 10.

Then move to Joinder of Claims and Parties. For Fridat, prep FRCP 7(b), 18, and 20; Jones (just pp. 452-55); Glannon pp. 233-37; Questions 1-5; and Puzzles Bullet points 1-4. 

For Thursday, January 15

Wednesday audio--Section B, Section A. Please note the essay assignments and the sample essay/answer.

Today's should make clear how important it is that you have your rulebook in class and that you spend time reading and prepping the text. When we read through the text of a rule or statute, everyone should be looking down at that text together--not looking at me and not writing down what I am saying in their notes. And that means you must put in the same work parsing the text in prepping for class.

Also, see this post offering a basic overview of the structure of civil litigation and of this class.

For Thursday, review everything for Introduction to Pleading. This will take us all of tomorrow and perhaps into the beginning of Friday.

We will begin Joinder of Claims and Parties on Friday. I will give guideposts for that tomorrow. 

Structure of Litigation (& Class)

I wanted to place it here. The following 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 today 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 following a jury veedict at trial.

7) Appeal: Subject to the Final Judgment rule 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.

Sample Essay and Answer

I expect Essay # 1 to post around the third week of the semester and Essay # 2 to post shortly after.

After the jump is 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.

Essay: Naruto v. Slater

Defendants in Naruto v. Slater 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.

Additional Law:

    Wiggins v. Larson (9th Cir): A statute could apply to non-human animals if Congress provided a clear statement of its intent to extent the law that far. The Trademark Act and the Patent Act lack such a clear statement and thus do not protect or grant rights to non-human animals. 

As counsel for plaintiffs, argue against imposition of Rule 11 sanctions on you and on your clients.

For Wednesday, January 14

Wednesday audio--Section B, Section A. I will circulate the seating chart next Wednesday. We will set time aside for questions about the Syllabus, Assessments, structure, assignments, etc.

Review Introduction to Civil Procedure. Additional question: Who has the root power to create procedural rules for courts? What are the various sources of rules within the current federal system?

Prep Pleading: Introduction to Pleading. Familiarize yourself with our four cases (Naruto, VOA, Godin, and Morgan). In addition to the reading and discussion questions provided, read the short order in Trump v. New York Times (do not worry about the discussion of Rule 8--focus on the rest). What does it mean to use a pleading as a "press release?" What are the benefits and drawbacks to doing that?

Please note that I made a few small changes to the Syllabus and to the Discussion Questions post based on recent events. Please use this version going forward.