Exam Assignments (Section A)

Find your Blind ID number and the three assigned questions you will answer. If you do not see your Blind ID number, please reach out to the Registrar's Office.

Everyone is assigned three questions:

            • Question # 2 (short answer)

            • One question on forum selection

            • One question on other issues

 

 

1008: Questions 2/7/1  

1012: Questions 2/7/9

1025: Questions 2/7/10

1029: Questions 2/7/11

1042: Questions 2/7/12

1056: Questions 2/7/13

1060: Questions  2/8/1

1067: Questions 2/4/9

1079: Questions 2/4/10

1094: Questions 2/4/11

1108: Questions 2/4/12

1132: Questions 2/4/13

1141: Questions 2/5/1

1147: Questions: 2/3/11

1164: Questions 2/5/9

1165: Questions 2/5/10

1221: Questions 2/5/11

1236: Questions 2/5/12

1246: Questions 2/5/13

1250: Questions 2/6/1

1257: Questions 2/6/9

1258: Questions 2/6/10

1266: Questions 2/6/11

1268: Questions 2/6/12

1271: Questions 2/3/1

1273: Questions 2/3/9

1274: Questions 2/3/10

1289: Questions 2/3/11

1304: Questions 2/3/12

1331: Questions 2/3/13

1338: Questions: 2/4/1

1360: Questions: 2/8/9

1370: Questions: 2/8/10

1381: Questions: 2/8/11

1382: Questions: 2/8/12

1389: Questions: 2/8/13

1393: Questions: 2/8/1

1394: Questions: 2/8/9

1396: Questions: 2/8/10

1401: Questions: 2/8/11

1402: Questions: 2/8/12

1417: Questions: 2/8/13

1419: Questions: 2/7/1

1422: Question 2/7/9

1435: Questions: 2/7/10

1473: Questions: 2/7/11

1486: Questions: 2/7/12

1487: Questions: 2/7/13

1489: Questions: 2/6/1

1498: Questions: 2/6/9

1573: Questions: 2/6/10

1584: Questions: 2/6/11

1592: Questions: 2/6/12

1600: Questions: 2/6/13

1641: Questions: 2/5/1

1648: Questions: 2/5/9

1681: Questions: 2/5/10

1689: Questions: 2/5/11

1724: Questions: 2/5/12

1774: Questions: 2/5/13

1813: Questions: 2/4/1

1824: Questions: 2/4/9

1834: Questions: 2/4/10

1851: Questions: 2/4/11

1876: Questions: 2/4/12

1939: Questions: 2/4/13

1949: Questions: 2/3/1

1971: Questions: 2/3/9

1975: Questions: 2/3/10

Question Assignments (Section B)

Find your Blind ID number and the three assigned questions you will answer. If you do not see your Blind ID number, please reach out to the Registrar's Office.

Everyone is assigned three questions:

            • Question # 2 (short answer)

            • One question on forum selection

            • One question on other issues

 

 

1032: Questions 2/3/1

1048: Questions 2/3/9

1053: Questions 2/3/10

1075: Questions 2/3/11

1086: Questions 2/6/12

1087: Questions 2/6/13

1098: Questions 2/8/1

1099: Questions 2/4/9

1135: Questions 2/4/10

1172: Questions 2/4/11

1183: Questions 2/4/12

1185: Questions 2/4/13

1187: Questions 2/5/1

1188: Questions 2/8/9

1207: Questions 2/5/10

1218: Questions 2/5/11

1238: Questions 2/5/12

1241: Questions 2/5/13

1243: Questions 2/6/11

1277: Questions 2/6/12

1281: Questions: 2/6/1

1283: Questions 2/6/9

1287: Questions 2/6/10

1292: Questions 2/3/1

1299: Questions 2/3/9

1301: Questions 2/3/10

1306: Questions 2/6/13

1315: Questions 2/7/1

1316: Questions 2/3/11

1334: Questions 2/6/11

1355: Questions 2/7/9

1376: Questions 2/7/10

1383: Questions 2/7/11

1403: Questions 2/7/12

1411: Questions 2/7/13

1423: Questions 2/8/1

1426: Questions 2/8/9

1488: Questions 2/8/10

1515: Questions 2/8/11

1517: Questions 2/8/12

1571: Questions 2/8/13

1605: Questions 2/3/12

1616: Questions 2/3/13

1617: Questions 2/4/1

1679: Questions 2/6/12

1700: Questions 2/6/13

1703: Questions 2/7/1

1708: Questions 2/5/1

1720: Questions 2/5/9

1731: Questions 2/5/10

1739: Questions 2/5/11

1751: Questions 2/5/12

1766: Questions 2/5/13

1770: Questions 2/4/1

1796: Questions 2/4/9

1800: Questions 2/4/10

1807: Questions 2/4/11

1812: Questions 2/4/12

1849: Questions 2/3/1

1860: Questions 2/3/9

1878: Questions 2/7/10

1931: Questions 2/7/11

1959: Questions 2/7/12

1980: Questions 2/7/13

1990: Questions 2/8/1

1991: Questions 2/8/9

1996: Questions. 2/8/10

 

 

 

Exam Instructions (Both Sections)

Download here. Review Good Writing and Talking Procedure in how you will write, cite, etc.

Q&A Review Follow Up

Terrific job on the creative projects. I want you all to have some fun with this and you clearly did. I shared several projects with the dean's office and we want to find a way to display them around the building.

As you begin to study in earnest, I share the following:

• Jesus, Finley, Veronica, Isaac, and Thalia video, for use in studying Erie.

• Today is the 41st anniversary of the introduction of New Coke, which led to the lawsuit by the Bottling Company and the demand for the formulas. Here is the legendary story of New Coke.

I will not be at school the rest of this week but am available by email until 10 p.m. Sunday.

Assignments (by number) posted by noon Friday.

The exam will post here at 9 a.m. Monday. Due outside my office by 1 p.m. Tuesday. 

 

Sample Answers

As promised, below you will find sample answers for Essays ## 8, 9, and 10.

I will try to finish grading them by the end of the week but I do not know if that will be possible. You can get a general sense from the samples of what you did right. And you can use the samples for studying and review.

Please note that some of them are a bit long. I did not have time to edit. 

Sample Answer: Essay # 8 (Section A)

 Sample Answer: # 8(A): (Opposition to Motion)

 

The court should deny Defendants’ 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction.

Sample Answer: Essay # 8 (Sec. B)

Sample Answer: # 8(B): (Support of Motion)

The court should grant the 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction.

Sample Answer: Essay # 9 (Section A)

Sample Answer: # 9(A) (Support of Motion):

The court should grant Defendants’ Motion to Dismiss on Forum Non Conveniens.

Sample Answer: Essay # 9 (Section B)

Sample Answer: # 9 (B) (Opposition to Motion)

The court should deny Defendants’ Motion to Dismiss on Forum Non Conveniens.

Sample Answer: Essay # 10 (Both Sections)

Sample Answer: (Both Sections)

 The court should grant Defendant’s Motion to Dismiss for Improper Venue.

Sample Answer--Essay # 7 (Both Sections)

Available outside my office.

Section B:

   Mean: 28.57

   Median: 25

   High: 42

Section A:

   Mean: 31.28

   Median: 30

   High: 40

Specific Point: Read § 1332(a)(2) carefully. It does not say that a foreign citizen with a green card is deemed a citizen of the state in which he is domiciled for all cases. The statute used to say that; Congress amended in 2011 because it raised potential Art. III problems. The statute nowsays that § 1332(a)(2) does not apply to an action between a citizen of a state and a green-card holder domiciled in the same state, even though it is between a citizen of a state and a foreign citizen. The green-card holder remains a citizen or subject of a foreign state for all other purposes. An 9action between a citizen of a state and a green-card holder domiciled in a different state would be between a citizen of a state and a citizen/subject of a foreign state under (a)(2) (were the latter "deemed" a citizen of a state, jurisdiction would shift in this action to (a)(1), which is how it operated under the former statute). And for (a)(3) purposes, we do not care at all about the foreign subject's immigration status.

General Point: Any essay must begin with the motion or thing you are asked to address. This question asked the court to decide the Motion for Remand. The first thing to explain is what removal is and what a motion to remand is. That then takes you into timeliness and jurisdiction and all the stuff you want to talk about. But it makes no sense to jump right to what jurisdiction is or whether the motion is timely without giving the context for why you are discussing jurisdiction and the timing of the motion.

Sample Answer: Essay # 6 (Both Sections)

Available outside my office.

Section A:

   Mean: 24.42

   Median: 30

   High: 37

Section B:

   Mean: 27.5

   Median: 27

   High: 40

End of Semester

We have reached the end of the course. Recall the introductory blog post from January in which I linked three parody videos. I said ,"I promise that you will understand all three songs by the end of the course."

And so I expect you will, along with a bonus video:

Final Class (Updated)

Friday audio--Section B, Section A.

One last point on mandatory disclosure and third-party funding: The Civil Rules Subcommittee voted last week not to proceed with a proposed rule that would have added third-party funding agreements to the list of things to be disclosed under FRCP 26(a). Committee members pointed to privacy concerns with such a rule, although it is unclear whether that was a policy concern or a § 2072(b) concern. Also, following on something that came up in one section: It is not clear that a funding agreement would be discoverable under 26(b)(1) if not subject to mandatory disclosure--not clear why the source of one side's litigation funding would be relevant to any party's claim or defense.

Essays ## 8, 9, and 10 due outside my office at the assigned time Monday. I will lay out folders early Monday morning; please place it in the right class and right folder. I will attempt to have them graded by the end of the week but I do not know if I can, I will post sample answers on Monday for help with studying the subjects.

I will be in my office Monday through Thursday next week to answer questions. I also am available by email. If an email question is of general interest, I will anonymize it and post it to the blog. So it may help to check the blog periodically during the week. I will answer questions by email until 10 p.m. on Sunday evening.

• Q&A Review Sessions on Thursday, April 23 (the Thursday before the exam). Section B at 10 a.m. and Section A at 1 p.m. Both in RDB 2008. Everyone is welcome to attend both sessions.

• Creative projects will be displayed and/or presented at each Section's session. Visual displays will be put up around the room. Audio/Video works will be played on-screen (please send me links or files a couple days prior). Live performances will be performed (reading poems, performing songs, whatever). This will take about the first 30 minutes of the session, followed by Q&A. Please keep recordings and live performances to 3-4 minutes.

• The Q&A is just that--your chance to ask questions. I have no prepared comments. You can stay for as much or as little of the session as you want. You may use computers. I will record it. We will stay for as much or as little time as you all have questions.

 • The exam will post at 9 a.m., Monday, April 27. It is due in hard copy at my office by 1 p.m. Tuesday, April 28.

• Everyone will answer 3 questions--two 1000-word essays and one short-answer (less than 40 words). I will assign questions (by Blind ID) by next Friday.

Thank you for an excellent semester. 

 

Don't be this lawyer, Ep. 1776

In so many ways--AI, controlling your client, representing your kid's girlfriend's mother for free. Here is the district court order.

Note the apparent surprise about the severity of the sanctions against the attorney (much more money than other courts have imposed) and the sanction (dismissal) against the client. Courts are reluctant to bring the hammer down with severe sanctions. FRCP 11(c)(4) says the sanction "must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated." Sanctions are not intended either to compensate the injured party or the punish the offending party. But the combination of an increase in "performative litigation" and the prevalence of AI may push courts to be harsher--whatever they are currently doing is not deterring.

For Final Class (sniff!!)

Thursday audio--Section B, Section A. Essays ## 8, 9 and 10 due at 11 a.m. (Section B) and 3 p.m. (Section A) Monday outside my office.

Read Berk, then review and re-prep the remaining Puzzles. Consider:

    • Return to # 1: Is there an argument that FRCP 26(a) does not answer the question? Is that the right reading under Berk?

    • How can/should a court interpret a rule? What are the competing approaches, as suggested on p.4 of the Berk majority and FN 1 of the concurrence? 

    • Puzzle # 8: What are the arguments as to whether federal or state law applies? What is the connection between any applicable Act of Congress and the balancing test courts perform? How does that affect your § 1652 analysis?

For Thursday, April 16

Wednesday audio--Section B, Section A. Essays ## 8, 9, and 10 due in my office next Monday.

Read Berk v. Choy if you have not already done so; it can help fill some of the language. It should be helpful in answering Puzzle # 4. Please note that the entire Court in Berk agreed that an FRCP answered the question--the majority said FRCP 8 and 12(d) while Justice Jackson said FRCP 3 and 12(d). But that means the case did not offer any guidance for a relatively unguided Erie choice.

We will spend the final two classes on the remaining Erie Puzzles. Please download and use this revised version; I removed one puzzle and added a new # 8.

Once more, the framework (please work this into your notes if you want it for class-I would rather people not take out their phones or computers).

 

12(b)(6) in Trump v. WSJ

The district court granted the Wall Street Journal's motion to dismiss President Trump's action arising from a WSJ article about the Jeffrey Epstein "birthday book." (This is the action that produced Section B's Essay #5).

This is a great example of how a court handles:

    • What it can consider on the 12(b)(6), including whether the underlying article is incorporated into the complaint (it is) and whether the birthday book and Trump's birthday letter are incorporated (they are not).

    • Judicial notice of certain congressional documents.

    • 12(b)(6) analysis of the allegations in the complaint, including disregarding conclusory allegations and determining whether non-conclusory allegations meet the substantive law.

    • The terms of dismissal 

    • The decision with respect to attorney's fees under Florida's anti-SLAPP law (this is the law in play in several of the Erie puzzles we will work through this week).

Essay # 10 (Both Sections)

Download here. Due outside my office by 11 a.m. (Section B) and 3 p.m. (Section A) next Monday, April 20.

Essays ## 8 and 9 (Both Sections) (Updated)

Download here. Typo corrected.

 Due outside my office by 11 a.m. (Section B) and 3 p.m. (Section) next Monday, April 20.

Both essays arise from the same case. Make sure you write on the correct essay and the correct assignment within that essay.

Final points on personal jurisdiction

Two final things on personal jurisdiction:

• Here is the board with the Shoe algorithm. This gives the basic framework of your RE, but you must fill in with citations and actual language and details from cases. You will not get complete credit if you regurgitate the basics of the outline without the details.

 

• This is a bit dated (from 2006) given the run of recent cases, but it is amazing:

For Wednesday, April 15

Friday audio--Section B, Section A. Essays ## 6 and 7 due in class Wednesday. Essays ## 8, 9, and 10 posted on Monday, due at what would have been class time (11 a.m., Section B, 3 p.m., Section A) on Monday, April 20 in my office.

I posted a photo of the board for Erie, below. Work through this in conjunction with the Glannon reading to understand how the non-REA portion works. Read Berk v. Choy, especially the majority; this is the Court's most recent Erie case (from January) and offers a nice explanation of the REA analysis (also the first majority on the issue in quite awhile). Justice Jackson's concurrence agrees with the basic analysis; she believes a different rule controls the issue (and she probably has the better of the issue).

Prep the Erie Puzzles. As you will see, the problems hit on each prong of analysis. Prep them as if you were writing an essay, including fully providing the RE, not just the A we will focus on in class. Be sure to consider and be ready to discuss the procedure in which the issues arise--how will the issue be raised and presented and argued to the court?

 

Creative Projects & Q&A Review

Per the grading information:

• Q&A Review Sessions on Thursday, April 23 (the Thursday before the exam). Section B at 10 a.m. and Section A at 1 p.m. Both in RDB 2008. Everyone is welcome to attend both sessions.

• Creative projects will be displayed and/or presented at each Section's session. Visual displays will be put up around the room. Audio/Video works will be played on-screen (please send me links or files a couple days prior). Live performances will be performed (reading poems, performing songs, whatever). This will take about the first 30 minutes of the session, followed by Q&A.

• The Q&A is just that--your chance to ask questions. I have no prepared comments. You can stay for as much or as little of the session as you want. You may use computers. I will not record it.

 • The exam will post at 9 a.m., Monday, April 27. It is due in hard copy at my office by 1 p.m. Tuesday, April 28.

• Everyone will answer 3 questions--two 1000-word essays and one short-answer (less than 40 words).

For Friday, April 10

Thursday audio--Section B, Section A.

Section B meets at 11 tomorrow in the Courtroom; the first 3-4 rows will be set aside for you. Admitted students will observe the class, so please be especially prepared and participatory in front of your future colleagues. Section B meets at 2 (instead of 1).

We turn to Erie, which functions as something of a capstone and review of the class. The issue is what law applies. But in working through problems, you necessarily have to think about the entire litigation process--how issues are raised, the rules that apply to those issues, etc.

Prep Intro (focusing on Erie and § 1652) and Procedure (focusing on Hanna and § 2072) and all the associated questions. Work through the process under §§ 2072-2074 and how the FRCP are drafted and passed. For tomorrow, we will introduce and put together the Erie and Hanna framework tomorrow. Next week we will apply that to the puzzles in the Puzzle Document.

For Thursday, April 9

Wednesday audio--Section B (first ~20 minutes cut off), Section A. Essays ## 6 and 7 posted.

Those assigned Essays ## 8, 9, and 10: Would you rather have it posted this Friday (due our final day of class) or next Monday (due the last day of class in my office, even though we do not meet).

If you are interested, here is Mallory, in which the Court held that a state could compel consent to general jurisdiction in its registration statute. And here is Fuld, in which the Court did not decide what, if any, limits the 5th Amendment imposes on Congress' power to grant personal jurisdiction.

Question 8 on Glannon p.149 illustrates the type of Quasi-in-Rem II action that survives Shaffer--plaintiff seizing property in State B to enforce a (valid) judgment from State A. One way to think about is that Ito's property in New Mexico (his minimum contact with that state) is related to the enforcement action in New Mexico, satisfying Shaffer. The enforcement action is a distinct civil action in New Mexico from the underlying fraud action in Emporia. And the property is related to that enforcement action as a possible way plaintiff can enforce the valid judgment.

Prep Venue, Transfer Venue, and FNC. I hope to finish that in one day. For tomorrow:

The Atlantic Marine excerpt omits FN 6 (on the word "consideration," at the end of Sentence 1 of ¶ 1 of Part III.A). This offers a different statement of the 3-part balancing test on Glannon p.183. The footnote reads, in full, as follows. You can use either version (or both) in your analysis.

Factors relating to the parties’ private interests include “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Piper Aircraft Co. v. Reyno, (internal quotation marks omitted). Public-interest factors may include “the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Ibid. (internal quotation marks omitted). The Court must also give some weight to the plaintiffs’ choice of forum. 

 

 

 

We then will start Erie on Friday. 

Essay # 6 (Both Sections)

Download here. Due in class Wednesday, April 15.

Essay # 7 (Both Sections)

Download here. Due on Wednesday, April 15.

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. 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) ($ 150k) + 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 $150k, 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, onctract limitations, or obviously minor injuries (the SCOTUS case involved a Negligent Infliction of Emotional Distress claim, 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.