Notes

5-25-21 class notes

Jx is what gives a court a power to act. Two kinds: subject matter Jx (SMJx) is the court’s power over a specific dispute. Personal Jx (PJx) is the court’s power over an individual.

See Beginning of a rule statement.

Diversity jurisdiction (DivJx) is (1) complete diversity of citizenship among all parties AND (2) amount in controversy (aic) exceeds $75k. Citizenship for persons is the state of residence. Citizenship for corporations is its principal place of biz OR where it is incorporated. It gets tricky when there are multiple parties in different states and one moves.

So there has to be complete diversity of citizenship? In other words, the opposing parties need to reside in diverse places. If they live in the same place there is not diversity of residence/citizenship.

Supplemental jurisdiction: when federal court has jurisdiction over some claims, it can exercise supplemental Jx over state claims arising from the same case or controversy if there is a common nucleus of operative fact. When there is a federal claim, then the plaintiff can bring her state claims only if the federal claim and the state claim have a common nucleus of operative fact.

5-27-21 class notes

Review of subject matter jurisdiction

The underlying presumption of civil procedure is testing the rules to see if we can get into federal court.

Federal question: federal law, U.S. Constitution, U.S. Treaties – if a law was made by the federal govt., it’s a federal question. If a law was made by a state, it’s not federal. To see if something is federal look for “U.S.C.” (U.S. Code); look for “Title” (e.g. Title VII, Title IX claims); anything based in U.S. Constitution (1st A, 2nd A, equal protection analysis); if you still can’t tell? Google it. Sometimes we don’t know because sometimes law is regulations from agencies such as EPA (I assume that some agencies are state agencies).

Among all parties = No plaintiff can be from the same state as any defendant. You can have various defendants from the same place, but if one plaintiff

Subject matter jurisdiction there is three ways: federal question OR diversity jurisdiction OR supplemental jurisdiction

I have one lawsuit I want to file in state court – unlawful imprisonment – but I also want to bring a claim of battery or rape (not in federal law) – so I will try to bring that as supplemental jurisdiction so that the federal court can have jurisdiction over the battery or rape claim because it has the same operative nexus.

If you’re doing an analysis you can skip the federal question – go straight to the state claim because you will address the federal question through supplemental jurisdiction.

The dreaded Erie Doctrine

Erie Doctrine is not conceptually complex. It is technically tedious.

Focus on concepts!!

Statutory law v. common law

• Statutory law: written law, positive law
• Common law: unwritten law, decisionary law, case law

Vertical choice of law v. horizontal choice of law

• Vertical: NY district court (Fed) located in same state as NYS court
• Horizontal: NYS court, e.g., state tax court

Clarification: Forum v. Venue

• Forum is really talking about when you are in fed court in ny, the forum state is nys. We have four fed district courts in ny – sdny edny ndny wdny – so any of these courts is in the forum state of ny.
• Venue is the specific place where the lawsuit is happening. Venue is which district you will appear in when there are various districts in a state.

Reading Erie doctrine is like reading a VCR manual.

Pre-Erie

1789

Rules of Decisions Act aka 28 USC 1652

• The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. (June 25, 1948, ch. 646, 62 Stat. 944.)¹

1842

Tyson v Swift became the law of the land for really long – courts interpreted “laws of the several states” to mean only statutory law “written law” “codified law” – held that in diversity jurisdiction only statutory law could be read … In 1842 this was a strange way to interpret this because if a fed court was in state jurisdiction and there was a written state law the fed court would use it but if there was no state written law, the fed could devise a law.

• Dv Jx – scenario a – in a state where there is a statutory law – fed district court uses it
• Dv Jx – scenario b – no statutory law – fed district court uses common law

So there was a big discrepancy between what could happen in one state or another because if no statute in a state federal district court would use common federal law that was developing. Huge discrepancy in potential outcome of a case. No equal protection of the laws.

1938 (barely post-Lochner)

Era of getting out of let the market take care of itself; now growing appetite for govt. action and uniformity among the states; growing discussion of federalism – conversation between need for strong federal govt. but also states wanting some autonomy. So, the federal rules of civil procedure was invented. :) FRCP intended to seek uniformity; assumption that forum shopping is bad and unjust.

Erie – forum shopping

Erie v. Tompkins = Railroad v. Person

Tompkins was a resident of PA walking along the road in PA when RR Co. (NY company) passed by, door swinging open, hits Tompkins, severs his arm. Tompkins wanted money damages. For negligence. Tompkins takes it to NY. The law was so different that in NY he was awarded $30K. Erie applies for certiorari (asks supreme court to take the case). When Erie applies for cert it is saying that the rules of the game are unfair, the rules are rigged, because the way that plaintiffs can go forum shopping is unfair, no due process.

Brandeis is looking for a reason to overturn Swift v. Tyler. Interesting that this is 1938 – for a long time there were all sorts of courts doing all sorts of things; this is really a modern rule that has brought us to where we are right now. Federal law no longer rules; not binding authority, but there are lots of ways in which federal 2nd circuit law affects state law, and that is what Erie did; it brought a lot of vertical conformity between courts. Erie doctrine relates to which law is applied by the federal court sitting in DivJx.

• Rule from Erie: federal courts are allowed to apply their own rules when it’s procedure, but requires federal court to apply state substantive law.

DivJx does not have to have any federal claim; it’s when its citizens of different states. Because courts specifically wanted to avoid me being able to drag someone’s ass to ny if I want to sue someone from Texas. In DivJx there is no federal claim being raised. Do we go to the state where something happened? Generally, like in the situation in Erie, it’s not in the state where it happened, but the state where the defendant is from (Erie from NY).

Q: What state law is considered procedural and which is considered substantive?

• Procedural: rules of civil procedure; burden of proof standards (generally the preponderance standard – 51% standard) (all sorts of ways states might treat burden of proof at different stages of the procedure)
• Substantive: state law causes of action; damages (there’s guidance – 2nd circuit guidance); statute of frauds (if contract issue and statute of frauds comes up it’s considered substantive); choice of law rules (if I live in VA and I’m affected by a TX law, conceptually a district court may apply a TX state law).

Big question: state statute of limitations? Is that procedural or substantive?

• Procedural: where a substantive right is not conditioned upon the statute of limitations
• Substantive: where a substantive right is conditioned upon the statute of limitations (this is really the rub in Erie)

What if it is not entirely clear if a state law is substantive or procedural? If it’s not really clear, there are a series of tests. It really is fact based. You have to put on your lawyering cap and try to figure out conceptually if it’s procedural or substantive.

• If state law has substantive characteristics, and there is no conflicting federal statutory law? Substantive.
• If there is a clear federal mandate that conflicts with the application of state law? Procedural.

Apply the policy of Erie:

• Will the decision make the outcome of the case so substantially different that it will promote forum shopping? If yes, substantive. If no, procedural.

if substantive, it has to be applied by federal court. If substantive, we will argue that state law should be applied only if the state law is favorable to us – if unfavorable, we will argue that the state law is procedural. We want every favorable rule to apply to us and every unfavorable rule to get out.

• Hypo: If court law says documents submitted to court have to be PDF-A and no other PDFs are admissible, is this law procedural or substantive? Probably procedural because I probably wouldn’t take my client to another venue because I had to submit a PDF-A.

• Hypo: State law requires person to file answer to a complaint within 31 days. Fed law is 21 days. Is state law substantive? (there is a federal mandate but assuming there wasn’t). Technically this is a procedural rule – this is where the Erie rub comes in – argue it in your complaint even – this is where state law should be applied because not applying it will make a substantive difference to my client.

• Hypo: What if state law says no matter how severe injury damages are capped at $100,000? Damages are always substantive. A law that places a cap on the amount of damages would def make me take my case to another forum.

• Hypo: State law says if claiming less than $1M no jury trial, case would be seen by judge (or a “bench” trial). Substantive? I think likely yes. There is an argument to be made both ways. Probably substantive because so much comes down to what your case is, whether your client would present well to a jury, if case hinges on a technical question of law I might argue that my client would benefit from a bench trial. If I don’t want the federal district court to apply the state law I will argue that it is procedural.

• Rule from Erie: the federal court is not allowed to independently judge the construction of the law.

If there is no controlling state law to guide, the fed court must predict how the states highest court would rule – if unclear fed court must predict. Imagine fed district court applying state law. No guidance, no legislative intent, vagueness, basically if the state law has room for interpretation, then the federal judge is required to predict rather than fill in.

Let’ s say you’re a state court judge – and the case law is unclear. The role of a judge is to fill in all the gaps in the case law. In a case where a federal judge is applying a state law and theres a gap and they have to fill it in, the district court is tasked with looking at appellate courts and trying to predict how the appellate courts would rule – Erie says that the federal judiciary cannot make state law, so the fed judge has to make clear how they would predict that a state judge would rule on the case. The fed judge is trying to predict what an appellate state judge would rule on the issue.

It’s not precedent-setting; suddenly the fed judge is applying the law in the most just and most even way possible in this case, but this does not become precedent for state law.

I think here we have already found that the law is substantive; ask Rosa!!!

Hypo will always start in state law. Hypo will say you are in federal district court in DivJx and there is a law that is state law that you want to argue can be applied to your case.

What is the bird balancing test? Ask Rosa.

For next week the case she really wants us to read for Thursday is Worldwide

Back to Erie Doctrine in Outline

6-1-21 class notes

Jurisdiction is a moment – doesn’t come up too much in practice, but in the bar exam it’s 90% jurisdiction. It’s on the bar exam because it’s easy to test people on. Once you file your case most of what you do is discovery, but the bar exam wants us to learn jurisdiction.

To get a case into fed court, the federal court has to have SMJx.

If $75K does not meet standard. Has to exceed $75K.

A federal court can have Jx over some claims arising from the same case or controversy. a federal court may decline SupPJx over state claims when a) the state claim raises a novel or complex issue of state law, or b) the state claim substantially predominates over federal question claims or c) when the federal claims are dismissed and only state claims remain.

Hypo

Gayle lives in NY. Victim of sexual harassment by her boss (title VII). Boss occasionally blocks her from being able to leave the office (NY Civil Law – false imprisonment and battery). For us our best option is SupPJx because Gayle might get damages in both Jx, fed and state. You have to file EEOC within state. Under these facts we’d be able to get her SupPJx.

Clearly (a) is met because there’s a complex and novel issue of state law, (b) is met because the state claim substantially predominates, but if Title VII was dismissed we’d be back in state court.

Neither fed nor state has first choice; it’s up to the plaintiff and their attorney which is the best forum and the best venue and its up to the plaintiff where they want to bring their claim; if they go to one venue and they don’t like it they can also ask to move.

Nicholson is an example of when federal court had SupPJx but declined because a novel or complex issue was raised – look at para in Nicholson –

Personal jurisdiction

PJx is about whether this forum can host this litigation. PJx is not about whether this is the best forum.

In PJx the big question is due process: can this forum host this litigation? So long as it is compatible with constitutional due process, yes (for example, what’s fair, was there appropriate notice).

NOT REAL RULE (earliest rules of PJx) (this is the rule that came out of pennoyer) (also glossary: consent, in personam, in rem, quasi in rem)

Under the Due Process Clause, a person is only subject to the jurisdiction of a court if (1) the person consents to jurisdiction, (2) the person is served in hand within the forum state (in personam), or in rem (def has property in the forum state and litigation is about the property), or quasi in rem (def has property in the forum state but litigation is not about the property).

Attachment means there is a lean or a conflict – some sort of public process

Pennoyer v Neff

The “traditional Test” (current rule): A federal court can exercise PJx over a defendant in a forum where the defendant is domiciled, is present, gives consent or there is a waiver. Must be compatible with constitutional due process.

• Domicile – defendant resides in the forum state
• Presence – defendant is within the forum state when served
• Consent – defendant consents to Jx within a specific forum
• Waiver – defendant appears in action without objection
• Due process - Must be compatible with constitutional due process (fairness, notice, right to be heard)

DPCWDP = Duh, Pennoyer can’t. why? Due process!

What is consent? Is it express consent? Or is it implied consent? I don’t live here but I do a lot of business here so I consent to state law.

Waiver – if def appears and doesn’t object to Jx they may have waived their right to an objection –

With such clear rules, what could possibly go wrong?

In Pennoyer, courts were trying to make very clear laws, trying to narrowly tailor rules so that the rules wouldn’t be exploited or misapplied, but sometimes if rules are too narrow, too specific, it has the opposite effect where people can exploit laws. You make a rule, you think you’re really clear, but when defendants start playing the game by pretending they live somewhere else.

What about presence? There have been cases where defs have been kidnapped and dragged to the forum state and served. Or people enticed to come into state for prize money then served.

International Shoe

Corporation based in St. Louis with 11 to 13 shoe salesmen who live in Washington State and get samples which are one shoe of each pair and get commissions on sales from going door to door –

Para 24 –

If you are benefiting from roads and everything that is in a state and you have activities in the state, you have an obligation to pay taxes in a state.

This is what International Shoe adds: long-arm jurisdiction

• Long-arm Jx applies when the defendant is not a resident of the forum state
• The forum state must have a long-arm statute
• Must be compatible with constitutional due process

Every state has a long-arm statute now. Basically you can bring a person under PJx of a state if sth …

Personal Jurisdiction

Pennoyer morphed into the traditional basis. It’s not gone; you can still have traditional basis – domicile, presence, consent, waiver – but you can also have long-arm Jx. When do we employ one and when the other? Completely fact-based analysis.

6-3-21 class notes

Most of the cases we are talking about is 14th a because we are usually saying can a state do this here or can fed courts do this here

We learned that the Pennoyer test turned into the “Traditional Test” (domicile, presence, consent, waiver, must be compatible with constitutional due process)

PJx = the court’s power over an individual

Two ways you can get PJx: traditional basis or long arm Jx.

Multiple-choice question

A pilot from state A brought suit against a librarian from state B, in a single count complaint filed in a federal district court located in state A. The librarian sold the pilot expensive collectible watch through an internet site that generated a valid sales contract. The pilot’s complaint alleges that the librarian breached the contract’s terms because the librarian sold the pilot a watch that materially varied from the description the librarian had provided. The pilot sought $175,000 in damages.

Shortly after selling the watch, the librarian went to state A to vacation with her family. This was the librarian’s first time ever in state A. While visiting the state capitol in state A, the librarian was served with the pilot’s complaint and a summons in accordance with state A law. The librarians lawyer files a motion to dismiss for lack of jurisdiction. Will the court … SEE SLIDE

Worldwide VW

The year is 1976. Interstate travel is booming (1959 is when Eisenhower started the interstate). Now novel question is how do we deal with cars, and people moving freely from state to state with cars.

International Shoe was about if you do commerce in a state and benefit from that state you have an obligation to be under that states Jx. Worldwide VW is about …

Could the plaintiffs bring the case in NY? yes. Again here we look at which will be the best venue.

Asahi Metal Industry Co v superior court of CA Solano County (1987)

Burger King Corp v Rudzewicz (1984)

6-8-21 class notes

Constitution 5th a due process

90% of the time in this class we are talking about property. You cannot deprive a person of

Procedural vs substantive due process

Procedural

Cannot deprive person of property

Substantive

… SEE SLIDE! It was rather good

Service of process + notice

If a plaintiff brings a case and the

Service = delivery of the required documents

Of

Process = another name for the “summons”

• notice = the goal: to notify the defendant …

Why does it matter

D has constitutional right to be notice

A complaint is the instrument we use to file a lawsuit

Service of process + notice

Rule 4. Summons Must have both the summons and the complaint The complaint notifies them of what they are … Lots of rules saying how to serve different kinds of parties But the important rules – the ones on the bar exam – are how to serve an individual, how to serve a corporation, and how to serve a foreign defendant

How to serve an individual:

Remember these are federal rules (in state rules I can serve by certified mail) but not in all places can you serve by mail

Federal rules

Must be served upon the individual personally OR to someone of a suitable age + distretion at individual’s current dwelling OR to the individual’s authorized agent (hard to know who the person’s authorized agent is, but if I know who the individual’s attorney is I can say I’m serving you on behalf of your client)

The last rule on this is you can serve to a …

How to serve a corporation:

In accordance with state law of the forum state OR laws of state where service occurs Delivery to an officer or agent of the corporation

Officer = person in executive role Agent = managing agent or authorized agent

How to serve foreign defendant:

By internationally agreed to means OR According to an international agreement, if one exists AND it satisfies the constitutional requirements of the due process clause

Multiple choice question

An investor from state a filed against state b stockbroket in feed cut in state a … hypo about serving

Jurisdiction

Smjx (fq divjx suppjx) + pjx (trad basis min contacts + fp/sj)

Once a plaintiff takes a complaint and files it in fed court. What happens then? If plaintiff wants to sue in another forum … removal … venue

Part of smjx analysis will funnel into removal

Part of pjx analysis will funnel into venue

Question: can this case move to a different court? Generally q that resides with the defendant

If I’m in state court in ny and I want case to go to fed ct in pa. not possible. But I can move to fed court in ny, vertically, and then request change of venue. Venue transfer is when you are moving from one fed district to another. Can be in same state.

Removal 28 usc § 1441

A procedure by which a defendant can have a case filed against them in state court removed to a federal court

Why do people want to move? Theres a perception that fed courts are more friendly to strangers. Theres an idea that if you go to a fed court in another state they’ll be more friendly to you. State courts are more local.

Fed court is more friendly to corporations, big institutions.

People assume that ny courts are progressive. However a lot of judges who get into ny judicial system come from big money and are quite conservative in the way they practice their jurisprudence, even though they consider themselves liberal/progressive.

RULE: defendant has a right to remove a case from state to federal court within the forum state if: 1 the fed court has smjx AND no defendant is a resident of the forum state.

Removal

How does a defendant remove to fed court?

Defendant files a notice of removal in the district court of the forum where the complaint was filed. (28 usc 1446(a)) Serves a notice upon all parties plus a copy upon the state court Removal is AUTOMATIC!!! Judges don’t like it. They have so much resources and they don’t like it when a case suddenly pops into your docket.

Additional items of notes: A plaintiff cannot remove a case to fed court. This is a right that resides only in the defenedant However plaintiff can motion for remand if the removal was improper Practitioner note: fed judges are known to love remanding back to state court

Mpc

Worker farmer

Worker state a Worker Sues farmer state b State court in state b

Farmer files notice of removal in fed court of state b Worker files motion for remand to state court

There was sth wrong w hypo

Venue – protects def against risk of unfair or inconvenient location of litigation and trial

Venue analusis similar to pjx but different in that venue is based on federal judicial district boundaries rather than the geographic boundaries of the forum state

RULE: Venue is proper in any judicial district where Any defendant resides in the judicial district AND all defendants are residents of the forum state (for venue analysis, residence is, for individual, domicile [where live and where intend to stay] and for corporation any jx where def is subject to pjx) OR Substantial portion of the claims occurred OR Property connected to the action is located OR If none of the above apply (rare) … than any judicial district where defendant is subject to pjx.

Subjective intent to reside = where a person means to permanently reside. If not in place where lives, go back to where they lived before – it’s a subjective analysis – based on factors –

6-10-21 class notes

I seem to have lost my notes for this day. I didn’t take many notes. We played jeopardy.

6-10-17 class notes

See also my notes in case simulation claims chart

Email from boss: please conduct an interview with our new potential client …

What you don’t want to do as a lawyer is over-plead; don’t throw in a ton of claims. Also what you want is either a settlement or a jury trial. Federal court trials can be two days; so only file the claims that are most solid – you don’t want to overwhelm the jury. One claim that is unfavored is malicious prosecution. In this case we chose malicious prosecution and it was tricky. If there are too many claims it shows that lawyer doesn’t have a clear theory of the case.

Often it comes down to who tells the best story wins. Who tells the most compelling story wins.

The point too is that the plaintiff has the burden of proof. Every claim you make you are going to have to defend, going to have to

A new world: post-Twombly and Iqbal.

New pleading standard: a claim must be plausible, not merely possible

How does court decide wants plausible? By drawing on its “experience and common sense.”

Michelle’s claims:

42 usc § 1983

• Unreasonable seizure (unlawful arrest)
• Monell claim: unconstitutional custom, practice or policy (monell doctrine brougjt in through 1983 – has to do w holding a municipality/city responsible for the actions of their officers) here we are going to try to prove that
• Monell claim: failure to train – officers not prepared to verify digital evidence. Not trained in digital forensics
• False Imprisonment
• Malicious prosecution
• Intentional infliction of emotional distress

Timelinr

• 2019-10-28 Michelle and Ian met
• 2019-12-23 Ian moved into condo
• 2020-10-2 Michelle moved out and went to her parents
• 2020-12-8 Michelle found out about Angela
• 2020-12-12 signed settlement agreement
• 2021-1-14 PD showed up and inspected M’s phone
• 2021-2-9 M arrested
• 2021-5-15 M let out of prison (note she said 90 days but we counted 88 days)

Really short notice of claim period in this type of claim – each claim has its own statute of limitations.

Even though we haven’t taken torts yet, intentional infliction of emotional distress usu has a one year statute of limitations – although there are extensions after discovery – the substantive claim part is super important but not what we’re looking at in this class.

Drops document in chat: outline of complaint

AS had convo with M’s real estate attny sarah sneedy. She is horrified about what happened. She will send over case file immediately so that we can review the settlement agreement. Usu a settlement agreement is a dual waiver of claims. We want to see if the settlement agreement waiver was overbroad and would preclude real estate lawyer from suing in civil court

Also spoke with criminal defense attny mike musty. Seemed disinterested and in a rush. Said he “couldn’t remember” details of what led to m’s exoneration needed to look at his notes. There was sth “exculpatory” on her devices. Will send file over.

Often crim defense attnys don’t want to get involved in civil rights scuffles with anheim pd because he is in court all the time against anheim pd. Mike did a good job. He got m out of jail.

Can we argue that m signed settlement agreement out of duress? Yes! If settlement agreement not good for her we should see how we can wiggle out, prove that settlement agreement not enforceable.

As made a table for each claim. Claim: 42 usc § 1983, unreasonable seizure of a person Against: individual detective/s or officers involved

Elements: what we know/have (attribution: what do we need? What would be helpful?

Angela Sandiego has been arrested. Pled guilty to false police reports and fabricating evidence. Detective skunha found surveillance footage which showed that no on came to the condo on the da a and I claimed that attempted rape happened. Search warrant results on the threatening emails revealed the ip address of the condo where sandiegos wehre living. Ian sandiego is not arrested da wont say whether ian under investigation.

TAKE A BREAK

GET NEW RULE FOR PJX FROM SLIDES

When def definitely not a res of a state and don’t do substantia.l business

New rule “purposeful availment”

Purposeful availment part of fairness standard of minimum contacts. If you come and avail yourself of the resources of a state – Saturday night live; protection by state police if you are robbed; if someone goes to a state and has a significant contact with the forum state and expect state to protect you and take all benefits of forum state

6-22-21 class notes

How to survive a 12(b)(6)

Wtf are the rules

Rules tested on bar exam are settled law

Organization (or “flow”) and exact wording of rules varies depending on your source.

PJX analysis flow

Where was d properly served?

In forum state?

• Traditional test (general jx applies)
• Domicile
• Presence
• Waiver
• Consent

General jurisdiction: claims do not have to arise from or relate to d’s contacts with forum state – d can be sued for essentiall y anything (i.e. courts have pjx over d generally)

Not served in forum state? Is d citizen of forum state? No > long arm statute? Yes > minimum contacts? + fair play/substantial justice? (discuss factors and come to conclusion about fairness) Specific jurisdiction > ps claims arise out of or relate to the d’s contact with the forum state (i.e. courts have pjx over d in this specific dispute)

Watch out because contacts might be so substantial that the d is essentially “at home” in forum state (if at home court has general jurisdiction) “so systematic and continuous that d is essentially at home in the forum state”

The d purposefully availed itself to the benefits of the forum state AND should have anticipated that pjx was foreseea2e/reasonable (only go to purposeful availment analysis).

Brand new SCOTUS rule March 25, 2021

Ford Motor Company v. Montana Eighth Judicial District Court: 8-0 ruling (March 25, 2021)

Case simulation

Todays goal is developing a COMPLAINT that will overcome the anticipated 12b6 motion to dismiss on the merits. Every element of every claim must be not just possible but plausible to a judge How does a judge decide? Common sense and good judgment

What are michelles claims?

• 42 usc sec 1983
• Monell claim: unconstitutional custom, practice or policy
• Monell claim: failure to train
• False imprisonment
• Malicious prosecution
• Intentional infliction of emotional distress

Rule 11: signing pleadings, motions and other papers; representations to the court; sanctions

https://www.federalrulesofcivilprocedure.org/frcp/title-iii-pleadings-and-motions/rule-11-signing-pleadings-motions-and-other-papers-representations-to-the-court-sanctions/

Rule 11(b) really important –

After that a really useful rule is rule 15 – amended and supplemental pleadings

https://www.federalrulesofcivilprocedure.org/frcp/title-iii-pleadings-and-motions/rule-15-amended-and-supplemental-pleadings/

we get over the motion to dismiss and when we get through discovery if we discover new facts we can amend the complaint

think like an investigative journalist. Q: what information is potentially available to us pre-discovery that we can use to make our claims more plausible in order to survive mtd 12(b)(6)

sequence of case:

angela sandiego plead guilty to crimes relating to the wrongful conviction and confinement of michelle. before angela plead guilty, there was a preliminary hearing against a in which the pd shared testimony re investigation behind people v angela sandiego. detective skunha testified over four days and we have over 400 pages of transcripts detailing his testimony. we asked our junior associate, Julie junior, to read carefully through these transcripts and provide an accounting of detective skunha testimony that might be useful for us.

we have acquired the therapy notes from michelle’s psychotherapist

we can ask for any info publicly available re cops – social media

• social media on cops
• detectives search warrant when they went to michelle’s house
• copy of our criminal’s case file
• copy of all affidavits and briefs, dockets in people v. angela sandiego
• linkedin info of people who just left da – see if they will testify
• policy manuals of police searches
• our clients real estate docs
• affidavits from michelle’s parents

6-29-21 class notes

What would you say to someone who asks “why didn’t you just leave?”

A: He threatened to “turn it on me” if I ever tried to get an order of protection. I didn’t want to leave my condo, my home. He had guns. Three he kept in his house. Something else (see slides)

The theory of the case that we think is plausible: there was some level of collusion between ian sandiego and the Anaheim defendants on account of him being a law enforcement officer

We know sandiego and skunha met in Disneyland but that was after a lot happened

Rita calls people she know to give her insight into law enforcement culture: A former nypd officer now distinguished anti discrim attny; Her cousin who works for slc pd (trump supporter); Her law school classmate, retired nypd; Her friend’s dad, retired lapd.

Q: is my theory plausible? A: hell. Yes.

Rule 11: where court asking if plausible – if reasonable inquiry

We read the complaint Another memo And a slide on a clause in the property agreement whereby michelle can’t sue other parties yikes eek

Defenses

FRCP 8 (c ) Affirmative Defenses

This is the go-to for defendants. They don’t have to state any facts. They can say yes we did that but we have qualified immunity or there’s another reason why we’re not liable

• Accord and satisfaction;
• Arbitration and award;
• Assumption of risk;
• Contributory negligence;
• Duress
• Estoppel
• Failure of consideration
• Fraud
• Illegality
• Injury by fellow servant
• Laches
• License
• Payment
• Release
• Res judicata
• Statute of frauds
• Statute of limitations
• Waiver

Rules for bar exam

• Claim preclusion (res judicata)
• Issue preclusion (collateral estoppel)

“double jeopardy for civil trials”

Magic words: was it dismissed … With prejudice? Without prejudice?

Affirmative defenses – most important ones for practice:

Statute of limitations

• Look for a tolling provision (timing stops temporarily) or a statutory exception

Release

• A plaintiff might have given up their right to file a lawsuit and not even know it
• Arbitration agreements
• General release provisions

For example, arbitration clause in a work contract (you can’t sue employer; have to take dispute to arbitration);