ITT Ask Cabra Your Civ Pro Questions

[Cabra]

Thoughts on Twombly?

Twombly frustrates me.  I guess the main thing to take from it would be that courts may be more willing to grant a 12(b)(6) in cases involving especially complex, costly litigation.  ?

It's hard to know what it really means at this point. The main thing I take away from it is that speculative litigation will not be looked kindly on for 12(b)(6) motions. also, a plaintiff must state a claim for relief with facts that show it is plausible rather than just possible.
I will use those exact words on the exam, by the way. 

me too! what textbook are you guys using?

Subrin. I didn't like it especially--it would have made so much more sense to do jurisdiction first! you?

[sstar]

Thoughts on Twombly?

Twombly frustrates me.  I guess the main thing to take from it would be that courts may be more willing to grant a 12(b)(6) in cases involving especially complex, costly litigation.  ?

It's hard to know what it really means at this point. The main thing I take away from it is that speculative litigation will not be looked kindly on for 12(b)(6) motions. also, a plaintiff must state a claim for relief with facts that show it is plausible rather than just possible.
I will use those exact words on the exam, by the way. 

me too! what textbook are you guys using?

Subrin. I didn't like it especially--it would have made so much more sense to do jurisdiction first! you?

why do you say that? sherry tidmarsh & rowe

[dubsy]

i TOTALLY agree. i really did not like this textbook. and i'm kicking myself for outlining sooo much useless crap all semester from that book

Thoughts on Twombly?

Twombly frustrates me.  I guess the main thing to take from it would be that courts may be more willing to grant a 12(b)(6) in cases involving especially complex, costly litigation.  ?

It's hard to know what it really means at this point. The main thing I take away from it is that speculative litigation will not be looked kindly on for 12(b)(6) motions. also, a plaintiff must state a claim for relief with facts that show it is plausible rather than just possible.
I will use those exact words on the exam, by the way. 

me too! what textbook are you guys using?

Subrin. I didn't like it especially--it would have made so much more sense to do jurisdiction first! you?

[Cabra]

Thoughts on Twombly?

Twombly frustrates me.  I guess the main thing to take from it would be that courts may be more willing to grant a 12(b)(6) in cases involving especially complex, costly litigation.  ?

It's hard to know what it really means at this point. The main thing I take away from it is that speculative litigation will not be looked kindly on for 12(b)(6) motions. also, a plaintiff must state a claim for relief with facts that show it is plausible rather than just possible.
I will use those exact words on the exam, by the way. 

me too! what textbook are you guys using?

Subrin. I didn't like it especially--it would have made so much more sense to do jurisdiction first! you?

why do you say that? sherry tidmarsh & rowe

It might have been our class that was the problem more than the casebook, but I think jurisdiction first is more intuitive for me.
Knowing about jurisdiction would have made joinder, third party claims, etc make a lot more sense. The way it was in our book we learned the rules, but you can't really grasp how it might effect the action unless you know about supplemental jurisdiction--and we didn't cover that until waaay later.
Example: I had no idea why compulsory joinder of parties would matter for the longest time--didn't even occur to me that it might be used defensively to destroy diveristy--do jurisdiction first and all the strategy makes more sense.

[Cabra]

i TOTALLY agree. i really did not like this textbook. and i'm kicking myself for outlining sooo much useless crap all semester from that book

Gah! The whole first section!! What was that?  It's like the authors wished they were writing a con law casebook and 150 pages in went, "*&^%, we better say something about procedure."

[jellybean00]

hey cabra, did you bother reading 10-12 in glannon (the erie chapters) at all?  or do they contain absolutely nothing that i'll need to know for the test?

[,.,.,.;.,.,.]

Thoughts on Twombly?

Whenever I think about a rule, I try to think about the case as well.

The problem with Twombly is that the plaintiff asserted parallel conduct between a bunch of companies.  Yeah, that could be an Antitrust violation, but is it plausible that it's one?  Or that regular competition just meant that a bunch of companies acted in concert?

Now, if you could get beyond pleading, they would go through discovery, with the burdensome automatic disclosure pursuant to 26(a) on the companies.  In an age of extremely expensive discovery, Souter is all like, "Girl, don't do there.  Cuz otherwise the plaintiffs would be able to file all sorts of wacky lawsuits, subject to Rule 11."  Hence the plausibility standard.

I often contrast Twombly with Conley, which had a liberal notice pleading standard because it took place during the Civil Rights era, and SCOTUS was concerned about plaintiffs getting thrown out of court when they could have had a valid claim.  "Unless no set on facts which would entitle pleader to recovery."

[,.,.,.;.,.,.]

ConLaw seems useless.  I'm glad that, at my school, we don't take it until 2L year, and, by then, most people couldn't care less about "Marbury v. Madison" or some fancy-sounding bull like that.

[Cabra]

hey cabra, did you bother reading 10-12 in glannon (the erie chapters) at all?  or do they contain absolutely nothing that i'll need to know for the test?

I skipped them. If Erie is on the exam we should revolt.

[dubsy]

this might sound really stupid because it's in plain english and doesn't seem complicated, but i don't understand the wording in the relation back amendment for parties:

"the new party knew or should have known that, but for a mistake as to the identity of the proper party, the original action would have been against him." (Rule 15c1c)

What exactly is this saying? Translation for my fried brain please?