After class, Allie Maples mention a scenario in which the Mottleys could have gotten into federal court in a way that satisfied the well pleaded complaint rule, by suing the United States under the Fifth Amendment. The last time this very creative idea was brought up was four years ago, so I will link to my discussion then.
...have now been posted. The fact that so many of those who choose to take this course are exceptional students always makes assigning grades within the confines of the mandatory curve a problem. My goal of keeping the number of lower grades to a minimum meant that I gave out fewer As and A-s than I might otherwise have done.
...have now been posted. A very good set of exams that made assigning grades within the confines of the mandatory curve very difficult.
At the request of some students, I have posted what I think is an accurate flowchart for (what are commonly called) "Erie" cases. The flowchart includes links to more detailed discussion.
Jackson Key pressed me on the following problem: Twiqbal pleading standards, the Court has now made clear, come from Fed. R. Civ. P. 8(a)(2) (in particular, the requirement of "showing that the pleader is entitled to relief"). But 8(a)(2) says nothing about dismissal for failure to satisfy these standards. Initially, the proper response is a motion for a more definite statement under 12(e). But what if, after the attempt at a more definite statement, the plaintiff still fails to satisfy Twiqbal? In Twombly, the Court spoke of dismissal for failure to state a claim under Fed. R. Civ. P 12(b)(6), but we now know that's wrong. Stating a claim and satisfying 8(a)(2) are different things.
Fed. R. Civ. P. 12(e) says the following:
A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
In Sierocinski v. E. I. Du Pont de Nemours & Co., 103 F.2d 843 (3rd Cir. 1939), the trial court relied upon the ability to strike the allegation of negligence that (it thought) failed to satisfy 8(a)(2). After striking the allegation, the complaint failed to state a claim and could be dismissed under 12(b)(6). But courts don't rely on that two-step process anymore. So what is their method of dismissal? I could not find a court saying explicitly, but the same problem has arisen for a long time with respect to Fed. R. Civ. P. 9(b)'s requirement for heightened pleading concerning allegations of fraud. Here courts simply appeal to 12(e) as the ground for dismissal. E.g. Ianieri v. Monmouth Investments, Inc., 1989 WL 150013 (D.N.J. December 08, 1989). My guess is that they consider the dismissal to be an "appropriate order." The same should be true of Twiqbal.
Amber Leasure-Earnhardt asked in the review session why Mullane's requirement of notice reasonably calculated to apprise the defendant of the pendency of the action would not require translation of the summons (and complaint?) into the defendant's language when one knows the defendant does not speak English. (After all, the known mental incompetence of the defendant cannot be ignored in determining what is adequate notice under Mullane.) But courts have found otherwise.
Let's return to Q. 9 of the MBE sample questions (by the way, this discussion is definitely not for my current civ pro class...yet):
9. A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment.
If the court grants the company’s motion, what is the likely explanation?
(A) Claim preclusion (res judicata) bars the motorcyclist’s action against the company.
(B) Issue preclusion (collateral estoppel) establishes the company’s lack of negligence.
(C) The motorcyclist violated the doctrine of election of remedies.
(D) The state-court judgment is the law of the case.
(C) and (D) are obviously nonstarters. The question is whether (A) or (B) is right. Let's start with issue preclusion. The examiners are right that issue preclusion is a problem because we do not know why the jury returned a verdict for the truck driver. It may not have been because the driver was found non-negligent. Indeed it may be that the issue of the driver's negligence never came up (perhaps negligence was admitted). The only finding might have been the contributory negligence of the motorcyclist. We just don't know. For that reason, I can't see why the examiners even say, "It is true that the same negligence issue that was presented against the truck driver is being presented in the action against the company and that that issue was actually litigated in the first action—two requirements for the application of issue preclusion." We don't know that the negligence of the driver was actually litigated and decided in the first action. Indeed, we don't even know that the action against the driver was for negligence. The question doesn't even say that!
Continue reading "Q. 9 of the MBE Sample Questions" »
The Multistate Bar Exam will have Civ Pro questions starting in February 2015. Here are some sample questions. I agree with Prof. Clermont that Question 9 is problematic, although my take on it is slightly different. I'll say a bit more about it soon. For the moment, here is the question:
9. A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment.
If the court grants the company’s motion, what is the likely explanation?
(A) Claim preclusion (res judicata) bars the motorcyclist’s action against the company.
(B) Issue preclusion (collateral estoppel) establishes the company’s lack of negligence.
(C) The motorcyclist violated the doctrine of election of
remedies.
(D) The state-court judgment is the law of the case.
It goes without saying that this is way down the road for this year's class...
Class will start on Monday Aug. 26. I intend to use this blog for posting written responses to student questions. (Most questions I'll answer orally, but for particularly interesting or widespread questions, I like to provide written responses.) Later in the semester, you should also find it useful to look at some of the old exam questions and answers posted here to anticipate what the exam will be like. But some of these old questions address material that I won't discuss this semester. Struggling with them won't be helpful. In addition, I strongly discourage you from reading any of these old exam questions until we are sufficiently advanced in the course. I'll let you know when the time comes.
Of all law schools with at least 5 graduates on the teaching market, Chicago's are...um...um...the best at trying to get an academic job only if they will succeed! A 58% placement rate! Still, why limit ourselves to schools with at least 5 graduates on the market? What about Empire College of Law (in my hometown of Santa Rosa, CA). No graduate looked for an academic job and no one got one! Beat that Chicago.