Sample Answer: Essay # 5 (Sec. A)

Available outside my office.

Mean: 32.85

Median: 36

High: 45

Sample answer after the jump.

Sample Answer: Essay # 5 (Sec. B)

Available outside my office.

Mean: 29.14

Median: 30

High: 35

Sample answer after the jump. 

For Wednesday, April 8

Friday audio--Section B, Section A. Essays ## 6 and 7 will post at 12:30 Wednesday (please note the correction on which essays). Essays ## 8, 9, and 10 will post on Friday or the following Monday. Again, all essays will be due before classes end and reading week begins.

We will cut 10 minutes off class on Wednesday and Friday of next week; we will make it up the following week.

Section B: Remember that we are flipping class with Crim; we will meet at 9 on Wednesday in RDB 2008. Remember that next Friday's class will be in the Courtroom.

Prep the rest of Personal Jurisdiction--Property and Review. We will begin with whether the contacts in Ford "relate to" the claim. What make "relate to" entail beyond what Ford did? Consider: Defendants travel to TX to enter into a contract to provide transportation services for a pipeline project in Colombia; the helicopter crashes in Colombia; plaintiffs sue in TX.

How is Ford not the old "doing business" general jurisdiction? Note Justice Breyer's concerns in Nicastro for Appalachian potters, Brazilian coops, and Egyptian shirtmakers; how should the Shoe algorithm deal with those concerns?

I want to do a short discussion at the end about PJ in federal court. Go back to FRCP 4(k). Consider 18 U.S.C. § 2333, authorizing suit against foreign terrorist organizations, and § 2334, which establishes jurisdictional rules for such actions. Thinking about how Shoe and World Wide define what the the 14th Amendment does, what is different about the due process analysis in federal court and how might that affect the PJ analysis?

For Friday, April 3

Thursday audio--Section A. Essays ## 7 and 8 will post next Wednesday, April 8, due Wednesday, April 15.

Prep all cases in Modern Analysis (Nicastro, Walden, BK), then prep General Jurisdiction Revisited. Prep the puzzles and questions ahead of time.

On the subject of Long Arm Statutes: This short article includes an appendix identifying the long-arm provision for each state, including where it appears (Constitution, statute, court rules) and whether it is an enumeration, a catch-all, or a hybrid. Nice resource to have.

In returning to Daimler, the casebook omits two footnotes that are worth highlighting, for understanding the Shoe Algorithm and how the analysis works. Both are on p.173:

• FN 19 is at the end of ¶ 2, on the word State.

We do not foreclose the possibility that in an exceptional case, see, e.g., Perkins, described supra, at 10–12, and n. 8, a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State. But this case presents no occasion to explore that question, because Daimler’s activities in California plainly do not approach that level. It is one thing to hold a corporation answerable for operations in the forum State, see infra, at 23, quite another to expose it to suit on claims having no connection whatever to the forum State. 

• FN 20 is at the end of Part IV.B, on the word California.

To clarify in light of Justice Sotomayor’s opinion concurring in the judgment, the general jurisdiction inquiry does not “focu[s] solely on the magnitude of the defendant’s in-state contacts.” Post, at 8. General jurisdiction instead calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, “at home” would be synonymous with “doing business” tests framed before specific jurisdiction evolved in the United States. See von Mehren & Trautman 1142–1144. Nothing in International Shoe and its progeny suggests that “a particular quantum of local activity” should give a State authority over a “far larger quantum of . . . activity” having no connection to any in-state activity. Feder, supra, at 694.Justice Sotomayor would reach the same result, but for a different reason. Rather than concluding that Daimler is not at home in Cali- fornia, Justice Sotomayor would hold that the exercise of general jurisdiction over Daimler would be unreasonable “in the unique circumstances of this case.” Post, at 1. In other words, she favors a resolution fit for this day and case only. True, a multipronged reasonableness check was articulated in Asahi, 480 U. S., at 113–114, but not as a free-floating test. Instead, the check was to be essayed when specific jurisdiction is at issue. See also Burger King Corp. v. Rudzewicz, 471 U. S. 462, 476–478 (1985). First, a court is to determine whether the connection between the forum and the episode-in-suit could justify the exercise of specific jurisdiction. Then, in a second step, the court is to consider several additional factors to assess the reasonableness of entertaining the case. When a corporation is genuinely at home in the forum State, however, any second-step inquiry would be superfluous.Justice Sotomayor fears that our holding will “lead to greater unpredictability by radically expanding the scope of jurisdictional dis- covery.” Post, at 14. But it is hard to see why much in the way of discovery would be needed to determine where a corporation is at home. Justice Sotomayor’s proposal to import Asahi’s “reasonableness” check into the general jurisdiction determination, on the other hand, would indeed compound the jurisdictional inquiry. The reasonableness factors identified in Asahi include “the burden on the defendant,” “the interests of the forum State,” “the plaintiff’s interest in obtaining relief,” “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,” “the shared interest of the several States in furthering fundamental substantive social policies,” and, in the international context, “the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction.” 480 U. S., at 113–115 (some internal quotation marks omitted). Imposing such a checklist in cases of general jurisdiction would hardly promote the efficient disposition of an issue that should be resolved expeditiously at the outset of litigation. 

The missing clause in 1367(b)

In class, we discussed this puzzle:

    A (NJ) + B (DE) v. X (DE)

We explained that this case is not covered by the text of § 1367(b), which does not include "claims by plaintiffs joined under Rule 20" from supplemental jurisdiction. But the Court nevertheless said no jurisdiction. Given the fundamental nature of the complete diversity requirement (no reason for a federal forum with less than complete diversity), § 1332 is not satisfied absent complete diversity. Since § 1332 is not satisfied, the court lacks "original jurisdiction" and thus lacks supplemental jurisdiction under § 1367(a). The court cannot "split" jurisdiction and exercise diversity between the diverse parties and supplemental between the non-diverse parties. And it was necessary to do this, lest an obvious drafting error blow up Strawbridge.

Several alert readers expressed confusion at this, pointing to a discrepancy between that and the final problem in the Glannon reading on supplemental jurisdiction. Glannon offers a version of this:

    A (NJ) ($ 1.5 m) + B (NJ) ($ 30k) v. X (DE).

This presents the same problem as the one we discussed in class--one of § 1322's "jurisdictional requirements" is missing in an action involving plaintiffs joined under Rule 20. The difference is that the missing requirement is not complete diversity but amount-in-controversy--one of the plaintiffs does not meet the jurisdictional minimum (recall that each plaintiff must seek > $ 75k from each defendant).

As Glannon explains, the Court in Exxon said there was supplemental jurisdiction over B's claim, since that combination is not listed in § 1367(b)'s exclusion.

So how do we square that with the problem from class? Exxon held that the complete diversity requirement is so fundamental that § 1332(a) is not satisfied without it (and because § 1332(a) is not satisfied, § 1367 does not grant supp jur). But the no-aggregation rule is less fundamental. The point of the AiC requirement is to ensure only "big cases" go to federal court. This case is "big" because A seeks millions of dollars, even if B seeks less than the jurisdictional minimum. So § 1332 is satisfied by complete diversity and the presence of A's large claim; the court therefore can exercise supplemental jurisdiction over the one small claim because § 1367(b) does not address this line-up (joined plaintiffs).

Does that seem absurd? Absolutely. As Justice Ginsburg argued in dissent in Exxon, § 1332(a) by its terms does not create a hierarchy of elements. She argued that § 1332(a) is not satisfied (thus no supp jur is possible) unless all of § 1332(a) is satisfied.

Fortunately, this does not arise all that often for two reasons:

1) It is relatively rare that a plaintiff cannot meet the AiC requirement. Absent clear law or obviously minor injuries, it rarely "appears beyond doubt" plaintiff cannot recover more than $ 75k. Most defendants don't really contest it.

2) (More important): This problem only arises in a case of multiple plaintiffs against one defendant. Once we add defendants (joined pursuant to Rule 20), the case falls within the first category in § 1367(b): Claims by plaintiffs against persons made party under Rule 20, which is expressly excluded from supp jur.

Sometimes confusion is good. It means you are understanding things, so that stuff that does not fit causes confusion.

Moot Court 1L Interest Meeting

12:30 p.m., Friday, April 17.

I encourage everyone to attend and find out. The fall intramural competition is a a lot of fun and Moot Court is a great thing to show employers.

And remember: If you can handle this class, you can handle oral arguments.

For Thursday, April 2

Wednesday audio--Section B, Section A. Essay # 5 due in class tomorrow.

Correction to assignment for tomorrow, beyond what I said at the end of class:

    • Read this blog post and the linked pages.

    • Prep all of Shift to Minimum Contacts, including the Questions and Puzzles.

    •  Modern Analysis or The Shoe Algorithm; prep World Wide and Nicastro.

Into Friday, we will cover the rest of Modern Analysis, plus General Jurisdiction Revisited.

Personal Jurisdiction Preliminaries

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

Change to Essay Schedule

I understand that your final LSV briefs are due on Saturday, April 11. I understand that but for this Sunday being Easter, they would have been due this Sunday, April 5. So this coming weekend is really the "final" weekend to work on the brief.

Because I try to avoid assigning essays during that final "real" LSV weekend, I am changing the schedule as follows:

Essay # 6: Will be posted on Wednesday, April 8; due on Wednesday, April 15.

Essay # 7: Will be posted on Thursday, April 9; due on Thursday, April 16. 

Meet-and-Confer

On a recent ABA program.

For Wednesday, April 1

Friday audio: Section B, Section A. Section A meets at 12:30 on Wednesday. Essay # 5 due in class Wednesday. Essay # 6 will post on Wednesday.

A clarification on our different versions of VOA.

    • If VOA and BSO are not diverse, there is almost certainly supplemental jurisdiction over VOA's actual state law claims--they are part of the controversy over BSO's use of the photos during the 2012 season.

    • If VOA and BSO are diverse, the fictional old contract claim can be brought--FRCP 18(a) does not require relatedness and there is an independent basis for jurisdiction (§ 1332).

    • If VOA and BSO are not diverse but the fictional old claim is for Trademark infringement, it can be brought--FRCP 18(a) does not require relatedness and there is an independent basis for jurisdiction (§ 1331 and § 1338).

    • The problem is if the fictional old claim is for breach of contract and they are not diverse--FRCP 18(a) is ok but there is no independent basis for jurisdiction and § 1367(a) requires relatedness.

Again, this is how § 1367 limits FRCP 18(a). And it is why it is better for the party to find jurisdiction under § 1331 or § 1332. 

Prep the rest of Supplemental Jurisdiction; try to make heads or tails of § 1367(b). We will begin with the connection between the joinder standard under the FRCP and the jurisdictional standard under § 1367--how do the standards relate and what does that mean in terms of the claims that can be brought and whether there is jurisdiction? Be ready to analyze Jones and the counterclaim in Kinsmann.

Then prep Removal, working the connection among the statutory provisions.

I hope to finish SMJ on Thursday and begin PJ that day and into Friday. 

 

Complaint v. FIU (Updated and moved to top)

Filed on Monday evening. I present this without comment on the substantive merits of the claim or on the morality of the speech at issue.

Three things of note:

• The Complaint is surprisingly restrained, given the high-profile nature of the case and the perverse incentives for the plaintiff and the attorney in such a case. No over-the-top rhetoric, no performative outrage, no pleading-as-press-release. The statement is short-and-plain--six pages (plus eight pages of exhibits).

• The Complaint does not quote or describe the statements at issue. Paragraph 16 characterizes the statements ("racial slurs, gender-based slurs, antisemitic rhetoric, and anti-LGBTQ language"), then alleges that none falls within a category of unprotected speech.  Is that sufficient? Must the complaint plead the actual statements (or do more than characterize) in order for the court to evaluate whether they are protected? For present purposes, it is enough  to know that racist, sexist, antisemitic, anti-LGBTQ+ speech is not per se unprotected by the First Amendment; something more is required to make the speech punishable. The case will turn on whether that "something more" was present on that group chat. Given that legal framework, has plaintiff done enough to state a plausible claim that the "something more" is absent here and that his speech is the sort of offensive speech that nevertheless remains protected?

• We have not discussed some unique procedures that govern constitutional litigation, where plaintiffs seek an injunction to stop enforcement of an allegedly unconstitutional state law or policy. For the moment, the Complaint is less important than the Motion for a Preliminary Injunction that plaintiff likely will file in the next week or so. This will argue that the speech is protected and will ask the court to stop the investigation while the litigation is pending and until the case can reach a final judgment. The motion previews the merits, asking whether the plaintiff is "likely to succeed on the merits"--whether he is likely to show that his speech is constitutionally protected from government sanction. The grant or denial of that motion is immediately appealable (§ (a)), meaning the case would quickly go to the Eleventh Circuit.

Update: The question of whether the complaint is sufficient turns on whether a court can evaluate whether the speech is protected without seeing the actual statements in the group chat, which are not in the Complaint. Several people proposed a possible solution: The complaint refers to the group chat and attaches documents that refer to the group chat. So is that sufficient to incorporate the entire group chat as having been referenced and relied upon and thus made part of the complaint?

For Friday, March 26

Thursday audio--Section B, Section A. Essay # 5 posted. Essay # 6 will post next Wednesday.

We will finish Diversity Jurisdiction. Read through Zambelli (in Supp Materials--I forgot to put in on the Syllabus); it illustrates how the analysis of an LLC may dig several layers down until you find a non-derivative member/owner. It also shows how FRCP 19(b) fits into this.

Given what we now know about the differences between corporations and other entities, where is VOA a citizen? Can we tell from the Complaint? Where do we its citizenship is?

How does a court determine amount-in-controversy in an action for something other than money damages--for example, injunction, specific performance of a contract, reinstatement to a job 

Read the primer on § 1331 and federal question jurisdiction. That will give you the basics that you need for our purposes. We dig into this in greater detail in Federal Courts. Section 1331 is the main statute to keep in mind.

On Friday, we turn to Supplemental Jurisdiction. Prep § 1367(a) and (c), the assigned rules (plus FRCP 18), Glannon pp. 263-71, and questions 1-8.

 

Answers to Preliminary Exam

You can check your own work and figure out what you scored. You also can work the problems a la Gannon and figure out why the correct answer is correct and why your. answer might not have been. Happy to answer any questions.

1.         (C)

2.         (A)

3.         (B)

4.         (C)

5.         (B)

6.         (D)

7.         (A)

8.         (C)

9.         (D)

10.        (B)

Section B:

Mean: 47.38

Median: 50

High: 50

 

Section A: 

Mean: 45.44

Median: 45

High: 50

Federal Question Jurisdiction: A Primer

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

Read this in conjunction with the assigned (and linked) statutes. You can supplement this with Glannon pp. 25-30 and Part I.A of Royal Canin v. Wullschleger; both offer a nice basic overview.

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

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

Essay # 5 (Section B)

Download here. Due in class next Thursday, April 2.

Essay # 5 (Section A)

Download here. Due in class next Thursday, April 2.

For Thursday, March 26

Wednesday audio: Section B, Section A. Please note some schedule changes for the coming week. Answers to Prelim Exam will post tomorrow morning.  Essay # 5 will post at 12:30 tomorrow, due in class next Thursday.

Review and prep all of Diversity Jurisdiction, beginning with the puzzles. In analyzing these, be aware that the reason there is not complete diversity is different from the reason why there is minimal diversity; keep them separate. Think about why the statute requires complete diversity, especially how it relates to the purposes of diversity, and consider the arguments against that requirement.

Finally, to bring us back to early topics: The Justice Department sued Harvard for violating Title VI (which prohibits race discrimination by universities receiving federal funds), over its failure to stop campus antisemitism and its continued use of race in admissions. But, as the article describes, Harvard had previously sued DOJ and won on summary judgment (the case is on appeal), arguing that the federal government had improperly withheld federal funds from Harvard. So at least some of the issues that DOJ must prove to win its case were resolved on the SJ decision in Harvard's lawsuit. And that may trigger some issue preclusion arguments in the new action.

Note also that Harvard, as plaintiff, won on SJ. Another case in which the facts were undisputed (DOJ withheld the $ without following process) and the question is whether that violated Title VI and the First Amendment.

Schedule Changes for coming weeks

Section A:

• Wednesday, April 1: Meet from 9-10:10 (necessary to accommodate the holy day beginning that evening).

• Friday, April 10: Meet from 2-3:20 (necessary to accommodate Admitted Students Day)

• Friday, April 17: Meet from 2-3:20 (necessary to accommodate an LSV program)

Section B:

• Wednesday, April 8: Meet from 9-10:10 (flip Crim and Civ Pro this day)

• Friday, April 10: Class will meet at our regular time in RDB 1000 (Large Courtroom). Students will be visiting for Admitted Students Day. Everyone should be especially prepared and at the top of their game.

Comments on Essays

As we are four essays in, I want to provide a few comments and highlight some things.

• I do not care what conclusion you reach if you are asked to decide the motion as the court. I do expect a certain legal framework to be used to resolve that motion. So there is not "one right answer that Prof. Wasserman wants." There may be (and probably is) one right analytical framework. Obviously, if you are told to argue one side or the other, the "right" answer is whatever position you have been told to argue.

• Know your assigned role. If you are told to resolve the motion as the court, your answer should say that the motion is granted or denied, not that it "should be" granted to denied. This is part of following directions.

• You must get into factual specifics. To use the most recent essays, it is not enough to say "the pleading was timely." You must give the facts (the relevant dates) that show it is timely, This is one example; it is a common problem.

•  You must explain why a rule applies before explaining and applying it. Sometimes that includes a factual predicate bringing the rule into play; you must explain why that predicate is met. For example, there is no need to discuss relation back unless the amended pleading is untimely. That means that before you introduce and discuss relation back, you must explain whether and why the amended pleading is untimely and thus why you are even discussing relation back.

• Similarly, where there are two possible rules governing an issue, you must explain why you chose to apply one or the other. For example, two rules provide a standard for relation back--15(c)(1)(B) and 15(c)(1)(C). Explain why you choose to apply one or the other. And explaining that why may help you avoid picking the wrong rule.

• Be careful about vomiting rules--reciting random rules without explaining why they are in play and why you are discussing them. Consider how rules fit together and discuss that connection, where appropriate, as part of your RE.

• Read the facts of each case carefully. Don't assume it calls for the precise analysis we discussed in class, as opposed to application of the same rules to a slightly different legal or factual situation or context.

Sample Answer: Essay # 4 (Sec. B)

Graded papers available outside my office.

Median: 23.25

Mean: 23

High: 35

Sample answer after the jump.

Sample Answer: Essay # 4 (Sec. A)

Graded papers available outside my office.

Median: 27.14

Mean: 27

High: 40

Sample answer after the jump.

Coffee!!!

 An FIU undergrad is doing a project advertising for a coffee shop. She needs research on coffee habits and thinks you all would be the perfect group.

Please take 5 minutes to do the survey: https://fiu.qualtrics.com/jfe/form/SV_0MQVB76tXYzHxem

Totally anonymous, for those who want your coffee habits to remain a national secret.

Learning the Law

Two unrelated items, that should help you become good lawyers.

First, for all your shopping needs.

Second, the latest entry in "Do Not Be This Lawyer."

For Wednesday, March 25

Wednesday audio--Section B, Section A. Prelim Exam posted; due at the beginning of class next Wednesday. Essay # 5 will post on Thursday, March 26. Essay # 6 likely will post on Friday, March 27. Enjoy your two days off.

We will finish Summary Judgment. Look closely at problems 3-6 in that Glannon chapter; they are helpful in understanding how this operates.

Consider the following: 

    The African American non-attorney sues for race-based failure-to-hire. There is evidence that they did not hire him because of his race and because he is not an attorney. Under the substantive law of mixed motive" cases, the plaintiff bears the initial burden of producing evidence that race played a role in the decision; the burden of production shifts to the defendant to show it would have made the same decision without considering race. The plaintiff bears the burden of persuasion that race was a but-for cause of his non-hiring.

    Discuss how each side could move for summary judgment, what evidence they must or would offer as to each of those facts (considering FRCP 56(c)(1)(A) and (B).

To put things in context: The end of summary judgment marks the end of the pretrial process. The next step is trial (which we cover in Evidence next semester) or settlement. We now shift the focus of the class to forum selection. We discussed FRCP 12(b)(1)-(3) and the fact that motions can be made to challenge where the case was filed; we now are going to put substance into those motions and explore the law that determines where a lawsuit can be filed and why.

We begin with Subject Matter Jurisdiction. For Wednesday and Thursday, prep Overview and Diversity Jurisdiction. In preparation, review our discussion from the first couple days of the semester, when we gave a basic overview of jurisdiction, especially the distinction between original and appellate and between exclusive and concurrent.

Preliminary Exam

Instructions. Preliminary Exam.

Type answers (by letter) on a sheet of paper, which will be submitted in class on Wednesday, March 25.

Summary judgment and video after Scott

In discussing Scott v. Harris, we mentioned that the Court presumed the video had one obvious meaning and showed one obvious thing, not open to interpretation (which would be the province of the jury). Obviously that could expand summary judgment if taken too far.

This Seventh Circuit decision shows how lower courts have attempted to limit that effect, by describing Scott as a "narrow exception" for the "rare case" in which a video is subject to no competing interpretations so as to warrant summary judgment. The court makes clear that a summary judgment court cannot in all cases do an independent assessment of the video and thus preclude summary judgment.

Of course, the Seventh Circuit then found this to be that rare case and granted summary judgment for the defendant. 

Discovery Samples (Updated and Moved to Top)

Sample discovery requests (corrected links) here, here, and here.

Here, here, and here are sample excerpts from depositions (the deponents are two people who worked for DOGE; the lawsuits are challenging the lose of certain National Endowment for Humanities (NEH) grants).

Finally, about a decade ago, The New York Times ran a series called "Verbatim," in which actors recreated depositions based on the transcripts. This and this were among the best; the latter formed the basis for an essay question years ago.

We will not discuss these in class. I just want you to have an idea what discovery devices look and sound like. 

Update: So it may be that those DOGE deposition videos should not have gotten out. The court followed a common practice: Entered a general protective order to govern all discovery at the start of the process. The order allowed parties to designate discovery as "confidential," in which case it could be used only for purposes of the litigation and could not be published outside of litigation. There is some question whether the government followed the proper designation procedures. Anyway, the judge ordered plaintiffs to attempt to claw back the videos for the moment and scheduled a hearing for next Tuesday to sort it out. Although YouTube has taken the videos, the Internet never forgets and they are available in other spaces.

Expect this to be an essay question for your colleagues next year.

For Wednesday, March 18

Friday audio: Section B/Part I, Section B/Part II, Section A/Part I, Section B/Part II. Essay # 4 due in class on Wednesday. Prelim Exam posted at 12:30 next Wednesday, due in class on Wednesday, March 25. Essay # 5 will post on Thursday, March 26.

No class next Thursday or Friday.

We continue with Summary Judgment; prep the remainder. We will touch on the problems in Glannon, so be sure to work through them. Look at pp. *25-27 in Nunes, which offers great framing of the RE for all of summary judgment.

Your regular reminder to please keep movement in and out of class to a minimum. 

For Friday, March 13 (Double Session)

Thursday audio--Section B, Section A. 

We will finish Coca Cola (and Discovery) tomorrow. Essay # 5 will be delayed until March 26 so as not to intefere with the prelim exam, which will post next Wednesday.

Go to Summary Judgment. Prep Questions 1-24, as well as the puzzle on the attorney.

Holmes Puzzle

McKenzie put together a nice clean version of Holmes, more readable than my handwriting. Thanks to her for sharing. 

For Thursday, March 12

Wednesday audio--Section B, Section A.

We will finish the discovery rules, then proceed to Coca Cola (on the Puzzles sheet). Be ready to argue your side on everything from whether the formulae are discoverable to how the issue will be litigated to what happens if the court orders production and Coca Cola continues to resist. You only get to answer twice; I don't want the same people answering.

We will begin Summary Judgment in our double session on Friday. 

Section A: Please note the posting of a new version of Essay # 4, correcting a typo. Please use the current version. Does not affect your answer. 

Essay # 4: Section A (Corrected)

Download here. Corrected on typo on p.13. Please use this version.

Due next Wednesday, March 18.

Essay # 4: Section B

Download here. Due next Wednesday, March 18.

For Wednesday, March 11

Essay # 4 will post at 12:30 on Wednesday; due in class on Wednesday, March 18.

Review Discovery Process, then prep Enforcing and Avoiding and the assigned questions as to all. We hopefully will get to Coca Cola on Thursday and Friday.

 

For Friday, March 6

Thursday audio--Section B, Section A.

Prep the remainder of Discovery Process and all related questions. Understand the various devices, how they operate, and how they relate.  Also: Why might an attorney object during a deposition, given FRCP 30(c)?

Consider a different way to control a client during a dep. 

Again, sample discovery documents can be found here, here, and here. We will not discuss in class; this is purely to illustrate how discovery docs look and sound. 

For Thursday, March 5

Wednesday audio--Section B; Section A. Essay # 4 will post on Wednesday, March 11, due Wednesday March 18. Prelim Exam will post on Wednesday, March 18, due Wednesday March 25. Double session next Friday, March 13. No class on Thursday, March 19 and Friday, March 20.

Also, note that we have dean candidates on campus tomorrow and Friday; each will hold an open forum for the FIU community at 12:45 in RDB 1000. It's a good chance to hear from the person who will lead the school for your last two years.

We will finish Amendments, beginning with the final two elements of relation back--the timing of 4(m) and "mistake." Krupski says relation back is mandatory--does that mean amendment is mandatory? Is there another reason to deny leave in Krupski? If pleading John Doe is not a mistake, what can the plaintiff in Herrera do if he does not know the defendant officer's name?

Then prep all of Managerial Judging; parse out what is happening in FRCP 16 conferences, as well as the orders in NFL and McCullers (the "have lunch" order).

Then move to Discovery:Discovery Process. For tomorrow, prep Questions 1-5; with those questions, prep the assigned portions of FRCP 1, 16, 26(a), 26(e), 26(f), 30(a)-(d), and 34. We will get to the rest of Discovery Process on Friday.

Some sample discovery documents can be found here, here, and here. We will not discuss in class; this is purely to illustrate how discovery docs look and sound.

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.