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.
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?
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).
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 is for plaintiff to plead the cause of action as she understands it, fight for that position on the eventual dispositive motion, and 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 (something is an element rather than affirmative defense) turns out to be wrong.
But the discussion 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 statute of limitations defense to a complaint the plaintiff knows was filed after the limitations period expired. 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 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? Don't require the plaintiff to help the defendant make his case. 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.
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.
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?
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.
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.
Download here. (Typo corrected in the caption--please use the updated version).
Due at the beginning of class next Wednesday, February 11.
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.
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.
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.
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,
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.
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.
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.
