Law.scu.edu



Civil Procedure Outline

Professor Russell Spring 2008

CHAPTER 5: EXEMPTIONS FROM DISCOVERY

I. FRCP 26(b)(3): Trial Preparation: Materials. (Work Product Doctrine): Subject to (b)(4), party may obtain discovery of documents and tangible things..prepared in anticipation of litigation or for trial only upon a showing that…

1. Party seeking discovery has substantial need of materials in preparation of the party’s case; and

2. Party is unable without undue hardship to obtain substantial equivalent of materials by other means.

Even when required showing has been made, court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

A. W-P is a qualified immunity b/c can be overcome

B. Policy FOR W-P Doctrine: Protecting lawyer’s mental impressions = fundamental to American adversarial system b/c lawyer’s thought process = valuable commodity

1. If attorney’s W-P open to discovery upon demand, much of what is now written down would remain unwritten.

a. Quality of legal representation would suffer

b. Demoralizing effect on legal profession

c. Interests of clients and justice poorly served

C. Hickman v. Taylor p. 381: (Attorney Work Product Afforded Protection From Discovery)

1. GR: Discovery of attorney work product prepared in anticipation of litigation may be had only if the material sought is not privileged and is essential to the preparation of the requesting party’s case. (refer to Rule)

2. Facts: After tugboat accident that killed five crew members, attorney took statements from surviving crew members and interviewed other witnesses in anticipation of litigation. Hickman sought discovery of statements taken by Taylor’s attorney shortly after accident.

3. Holding: Discovery denied b/c Hickman did not show need for discovery of written statements. No legitimate purpose served. H only wanted documents to make sure he didn’t overlook anything.

II. Attorney-Client Privilege

A. GR: A communication by a corporation’s employee to the corporation’s attorney is protected by the attorney-client privilege if the communication is (1) about matters within the scope of the employee’s employment and (2) was obtained for the purpose of providing legal advice to the corporation.

B. Definition: A communication (of any type, written or oral) from the client to the lawyer without the presence of others for the purpose of seeking legal advice.

1. Client can WAIVE privilege

C. UpJohn Co. v. United States p. 391: UpJohn Co. refused to produce documents (a questionnaire) that related to an internal investigation conducted by its general counsel, claiming that the documents were protected by the attorney-client privilege.

1. Holding: Questionnaires constitute work-product and are protected. Court rejected “control group test” (officers/agents responsible for directing company’s actions) and applied a broader standard by looking at whether persons had substantial control to make decisions for the corp. Middle and lower level employees may have info need by corporate counsel.

D. Difference btw A-C Privilege and W-P Doctrine: the parties involved

III. Experts

A. Rule 26(b)(4)- Trial Preparation; Experts

(A) Testifying: A party may depose experts who are expected to be called at trial.

(B) Non-Testifying: A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who…is not to be called as a witness at trial as…

-provided in Rule 35(b); OR

-upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions on the same subject by other means

(c) Paying Experts

B. In Re Shell Oil Refinery p. 401:

1. GR: Experts ordinarily employed by a party will be considered retained or specially employed if their employer assigns them to work on a particular matter in anticipation of litigation or for trial.

a. Investigations by a company’s regular employees in the course of their employment may be protected by privilege.

2. Facts: Part of an oil refinery operated by Shell Oil exploded. An in-house “expert” inspected the premises to see what happened. Opposing counsel wanted to depose the in-house expert, even though he would not be used at trial.

3. Holding: Expert reports prepared by regular employees in anticipation of litigation are not discoverable b/c regular employee is considered as retained or specially employed. Opposing counsel did not show any exceptional circumstances that would justify recovery.

IV. Sanctions

A. Rule 26(g): Signing of Disclosures, Discovery Requests, Responses, and Objections

(1) Every disclosure, request for discovery, and response or objection must be signed by at least 1 attorney of record.

(2) The signature constitutes a certification that to the best of the signer’s knowledge, information, and belief, the document is complete and correct, and is being served for proper purposes w/in the Rules

(A) Document consist w/Rules and existing law

(B) Not imposed for improper purpose (e.g. harass, delay, cause needless expense)

(C) Discovery not unreasonably or unduly burdensome

(3) If certification made in violation of 26(g) w/out substantial justification, court will impose sanction on the party, the attorney, or both.

B. GR: Though mere negligence is not enough to invoke sanctions, willful or gross negligence (reckless disregard) is sufficient to invoke sanctions.

1. Cine 42nd Street Theatre Corp. v. Allied Artists Pictures Corp. p. 415: Cine failed to comply w/Allied Artists’ discovery requests, arguing that it assumed answers would not be due on the dates set out in the orders (answers Cine submitted were ambiguous and inadequate).

a. Holding: Sanctions against Cine appropriate b/c its answers were very late and prolonged discovery. Court found this behavior willful. ( A preclusion order or dismissal of a party’s pleading is justified if the party is at fault when failing to respond to a discovery order.

V. Notice is not required to take a statement that is not a deposition.

A. GR: FRCP does not prohibit a party from taking recorded statements w/out notice to the opposing party.

1. Corley v. Rosewood Care Center, Inc. p. 412: P Corley took statements from witnesses under oath before a court reporter and did not give notice of taking depositions to Rosewood Care Center. Court held that lack of notice ok b/c statements were not depositions (those rules only concerned w/whether statements discoverable)

B. Policy: Do not always have to go through formalities b/c…

1. Would be inefficient (case might not get filed)

2. No notice ok as long as info gathering (as opposed to formal depositions)

CHAPTER 6: SUMMARY JUDGMENT

I. Rule 56: Summary Judgment

(a) For Claimant: Motion for SJ may be made “at any time after expiration of 20 days from commencement of action or motion of SJ by adverse party” w/out supporting affidavits

(b) For Defending Party

(c) Motion and Proceedings Thereon: …The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

(d) Case Not Fully Adjudicated on Motion

(e) Form of Affidavits; Further Testimony; Defense Required: The party opposing motion for SJ bears burden of responding only after moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact.

(f) When Affidavits are Unavailable

(g) Affidavits Made in Bad Faith

II. Burden Shifting

A. Burden of Proof

1. Burden of Persuasion: concerns which party must convince the trier of fact at trial of the accuracy of his factual assertions

a. There must be a preponderance of evidence in favor of the party having this burden before he is entitled to verdict

2. Burden of Evidence (Production Burden): whether a party has sufficient evidence to go to trial (SJ is mostly concerned w/this)

a. If party w/this burden does not produce sufficient evidence, judge will grant a directed verdict (no jury verdict)

B. Burden Shifting

1. Burden of Persuasion: usually remains on the same party throughout litigation

a. Burden usually placed on plaintiff, except affirmative defenses

2. Burden of Production: Party w/burden can shift burden to other party by presenting enough evidence that a reasonable fact finder must find for him. At that point, burden of production has shifted to opposing party, who must respond w/evidence of his own sufficient to allow a reasonable fact finder to find for him.

a. If opposing party fails, trial will not go to jury.

b. If opposing party responds w/enough evidence that reasonable fact finder must find for him, burden of production shifts back to party who had it initially.

III. What Must Movant Do to Trigger a Response from the Other Side?

A. Older Standard: The moving party bears the burden of proving an absence of a genuine issue of material fact in order to sustain a motion for summary judgment.

1. Adickes v. S.H. Kress & Co. p. 428 (USSC): Plaintiff Adickes was denied service at D’s store when she entered the store in the company of 6 black students. P alleged conspiracy and D moved for summary judgment based on depo from store employee saying that there had been no prior communications btw store and police.

a. Holding: SJ inappropriate b/c D had burden of showing absence of genuine issue of material fact. D did not prove the non-existence of a police officer at the scene.

2. Standard in favor of denying SJ (easier to move case forward)

3. Not overruled

B. Newer Standard (Finger Pointing): SJ will be granted when moving party demonstrates absence of genuine issue of material fact and that, as matter of law, it is entitled to judgment in its favor, based on pleadings, depositions, answers to interrogatories, and admissions on file, with or without supporting affidavits.

1. Celotex v. Catrett p. 435: Catrett sued 15 asbestos manufacturers, including Celotex, for her husband’s wrongful death. Catr provided evidence that her husband had been exposed to asbestos, but there was no evidence showing that he had been exposed to Celotex products. Celo moved for SJ.

a. Holding: SJ appropriate b/c movant need not affirmatively negate component of P’s claim; in this case, Celo did not have to prove that their products weren’t among those P’s husband was exposed to. No evidence is needed unless movant bears burden of proof at trial; in this case, Catr had the burden of proof.

2. Policy Reasons for New Standard (2)

a. Efficiency (allow lower courts to do work)

b. Attention to literal language of FRCP

3. Easier to get SJ

C. Non-Binding Lower Court Cases

1. Arnstein v. Porter p. 450: P sued D for copyright infringement, although he did not know whether D was actually involved with those allegedly stealing his songs. P moved for SJ, denying ever seeing/hearing any of P’s songs or associating w/anybody who might have stolen the songs.

a. Holding: SJ not appropriate b/c similarities btw P and D’s songs enough to permit reasonable jury to infer that P may have copied A’s songs. Though P’s account might be fantastic, his credibility should be determined by a jury.

b. GR: When a factual issue turns on the credibility of the witnesses, SJ is inappropriate.

2. Dyer v. McDougal p. 452: P accused D of defamation, alleging that D made false statements about P (re lawyering activities and blackmail) to P’s wife’s sister and other lawyers. D moved for SJ, using affidavits denying P’s allegations for various parties involved.

a. Holding: SJ appropriate b/c there is no genuine issue as to material fact. P did not depose witnesses, so court can assume that they would have repeated what they said in the affidavits on the stand. Speculation that they might appear different in front of just is not enough.

b. GR: A party may not rely on mere speculation that a witness may change his testimony or that his demeanor may convince the jury of his untruthfulness to escape SJ.

IV. General Principles

A. Distinction btw 12(b)(6) and Rule 56

1. 12(b)(6) examines legal sufficiency; 56 examines factual sufficiency

2. 12(b)(6) examines only allegations contained in pleadings; 56 looks at pleadings, affidavits, depositions, interrogatory answers, admissions, and other evidence

a. Motion for SJ after some discovery has been completed

B. Distinction btw Rule 56 and Rule 50

1. Rule 50: Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial

(a) Judgment as Matter of Law/Directed Verdict

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a basis to find for that party, the court may

(A) resolve the issue against the party; and

(B) grant JML

(2) Motion for JML can be made any time before case is submitted to jury

(b) JNOV (Judgment notwithstanding the Verdict): Movant may renew its request for JML no later than 10 days after entry of judgment (gives each side chance after verdict to reverse verdict or get it thrown out)

-must have already raised 50(a)

2. Similarity: Both 56 and 50 test for whether, on evidence then before the court, a reasonable jury could return verdict in nonmoving party’s favor

3. Difference: SJ motions made before trials (after discovery); 50 motions made during trial, after close of P’s (and sometimes D’s) case

a. 50 challenges the need for trial; 56 challenges need to convene trial

CHAPTER 8: TRIAL

I. Phases of a Trial (7)

A. Jury Selection

B. Opening Statements

C. Presentation of Evidence

D. Argument

E. Instructions

F. Jury Deliberation and Verdict

G. Post Trial Motions and Verdict

II. 7th Amendment Right to Jury Trial

A. FRCP 38: Jury Trial of Right

(a) Right Preserved. This provision codifies Constitution’s 7th Amendment, which provides that parties have a right to trial by jury for all suits at common law w/more than $20.00 in controversy (this is a nominal barrier now)

(b) Demand. Right to jury trial in federal practice not self-executing. Party who wishes a jury trial on a particular issue must file a demand for that jury trial to the other parties w/in 10 days after service of last pleading directed to that issue.

(c) Same: Specification of Issues. A party may specify specific issues requested to be tried by jury; otherwise, Court will assume party wants all issued to be tried by jury.

-If party has demanded jury trial for only some of the issues, any other party has the right to respond w/in 10 days to request any other or all of the issues of fact in action

(d) Waiver. Failure of party to serve and filed a demand as required by this rule constitutes a waiver of trial by jury.

(e) Admiralty and Maritime Claims

III. General Principles

A. No state application: 7th Amendment has never been applied to state trials, only federal ones.

B. No jury trial right as to equitable” claims (e.g. injunctions)

C. Legal v. Equitable Claims: Issue = whether claim is a claim “at common law”

1. Legal: claims involving $ damages

2. Equitable: injunctions, bankruptcy

3. Declaratory judgments can be either legal or equitable

D. GR: If a case presents both legal and equitable claims, and one party wants a jury trial on the legal claims, the court must normally try the legal claims first.

1. Whenever possible, a court must exercise its discretion to preserve the right to a trial by jury.

2. Policy: If equitable claims tried first w/out jury, might effectively dispose of some of legal issues (thwarting party’s right to jury trial)

3. Beacon Theaters v. Westover p. 531: Beacon threatened Fox’s exclusive right to show first-run movies in the area. Fox took preventative measures by going to court and seeking declaratory relief against B (preventing B from instituting more actions against F). B counterclaimed seeking treble damages and a demanding a jury trial.

a. Holding: B entitled to jury trial, which would decide legal claims first, then equitable claims (those claims considered incidental)

E. GR: A claim for money judgment is a claim wholly legal in nature, however, the complaint is construed.

1. Dairy Queen v. Wood p. 539: W is back in payments to DQ. DQ seeks files motion for jury trial in trademark infringement case, requesting injunctive relief and an accounting to determine amt W owed him.

a. Holding: DQ entitled to jury trial b/c right to jury trial does not depend on the way pleadings are drafted. Even though DQ’s complaint is cast in terms of an “accounting” rather than an action on a debt or for damages, DQ’s claim is wholly legal in nature.

2. Clean-Up Doctrine: argument where rt to jury trial may be lost as to legal issues where those issues are characterized as incidental to equitable issues

F. GR: A shareholder’s derivative suit is either legal or equitable, depending on the status of the corporation’s own suit. If corporation’s own suit would be legal, derivative action is legal.

1. Ross v. Bernhard p. 545: P, a stockholder in X Corp, brought a derivative suit attempting to enforce X Corp’s rights against D, a former officer of X. Corp. D was accused of embezzlement. The suit sought $ damages.

a. Holding: Since suit on same cause of action by X Corp. directly against D would be legal, P shareholder’s derivative suit is also legal.

G. GR: 7th Amendment applies to causes of action created by statute, and requires a jury trial if the statute creates legal rights enforceable in an action for damages.

1. Curtis v. Loether p. 555: Curtis, an African-American, brought suit under Fair Housing Act. She sought injunctive relief and punitive damages. Loether made a demand for a jury trial.

a. Holding: D entitled to right to jury trial b/c 7th Amendment rights extends beyond CL forms of action in existence in 1791 and statute creates legal right analogous to tort action.

IV. Modern Analysis to Determine Right to Jury Trial

A. 2 Part Test

1. Historical Analogy: Would the claim have been considered legal or equitable in the 1790s?

2. What is the relief sought?

B. GR: A trial by jury on the issue of liability is available in an action created by statute if the nature of the relief authorized by statute is the type traditionally available only in a court of law, but there is no right to a jury determination of the remedy.

1. Tull v. United States p. 559: U.S brought action against Tull for violations of the Clean Water Act. Tull requested a jury trial, but was denied. Fines were imposed on him if he did not undertake restoration efforts.

a. Holding: D entitled to jury trial b/c nature of relief sought, monetary remedies, was traditionally that awarded by common law courts. The amount of the remedy, however, was not to be determined by the jury.

C. GR: The right to a jury trial in a statutory action is determined first by comparing the action to 18th-century actions in England prior to the merger of the courts of law and equity, and secondly by examining the nature of the remedy sought and determining whether it is legal or equitable in nature.

-more emphasis on 2nd prong of test

1. Teamsters Local No. 391 v. Terry p. 563: Terry brought an action against Teamsters for breach of its duty of fair representation. He requested injunctive relief and compensatory damages for lost wages and health benefits. District court granted his request for jury trial.

a. Holding: Court held that Terry had right to jury trial. Since action includes both legal and equitable relief, must go to second prong of test. Backpay can be considered legal relief and since 2nd prong is weighted heavier than 1st prong, T entitled to jury trial.

Judicial control of the Verdict: Judgment as a Matter of Law (JML)

I. Rule 50: Judgment as a Matter of Law (takes case away from jury and determines outcome as a matter of law)

(a) Directed Verdict

(1) Standard for Granting: Generally, court will direct verdict if evidence is such that reasonable people could not differ as to the result

-“if during a trial by jury, a party has been heard w/respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party w/respect to that issue”

(2) When Made: When opposing party has been fully heard on relevant issues

(b) Judgment notwithstanding the verdict (JNOV): After being denied a 50(a) motion, movant can renew its request for JML no later than 10 days after entry of judgment. In ruling on renewed motion, court can (1) allow judgment to stand (if verdict was returned), (2) order a new trial, or (3) direct JML

-Court prefers JNOV to Directed Verdict b/c allows jury to reach verdict. Saves $ b/c if judge reversed on appeal, new trial not necessarily (as opposed to what would be the case if trial judge erroneously directed verdict)

-Made when jury comes back w/verdict that no reasonable jury could have gotten

(c) Granting Renewed Motion for JML; Conditional Rulings; New Trial Motion: If court grants JML and motion for new trial was also filed, court will make conditional ruling on motion for new trial.

(d) Denial of JML: If losing party appeals denial of JML after trial, prevailing party may on appeal assert grounds for new trial in event that court reverses denial of the motion for judgment after trial. If appellate court does reverse, it may order entry of judgment, order a new trial, or remand to trial court to determine whether new trial is warranted.

II. General Principles- Constitutionality of JML

A. GR: 7th Amendment was intended to preserve the basic institution of the jury trial in its most fundamental elements, not to preserve procedural forms and details.

1. Directed Verdicts do NOT violate the 7th Amendment.

2. Galloway v. United States p. 607: G’s claim for disability benefits due to insanity denied for lack of evidence. District court granted directed verdict, arguing that evidence was legally insufficient to support a verdict for G.

a. Holding: SC held that G was not deprived of his right to trial by jury b/c 7th Amendment was intended to preserve jury trial, not procedure.

B. GR: A jury’s verdict will be overturned on appeal only if there is a complete lack of probative evidence to support the verdict. The verdict must be “clearly erroneous.”

1. Lavender v. Kurn p. 623: Train employee was killed on the job. Two theories existed: he was murdered or killed accidentally (by a mail hook). Both sides had credible evidence. District court entered jury verdict that victim had been killed on accident, but SC of MO reversed for lack of substantial evidence.

a. Holding: District court’s jury verdict was reasonable b/c there was evidence to suppose the conclusion. Jury’s verdict could only be overturned if there was no evidence.

C. GR: It is not the function of the judge to resolve problems w/the evidence.

-Discrepancies in evidence must be resolved by the jury.

1. Guenther v. Armstrong Rubber Co. p. 635: G was injured when a tire exploded, and there was contradictory testimony regarding whether he was injured by the tire introduced into evidence at trial. Trial court entered D’s motion for directed verdict and denied P’s motion for a new trial.

a. Holding: Court held that directed verdict should not have been entered when there was conflicting evidence b/c jury should solve problems posed by conflicting testimony. (question of fact)

D. Substantial Evidence v. Scintilla Rules

1. Scintilla: jury trial so important that scintilla of evidence (small amt) enough to let verdict stand (e.g. Lavender?)

2. Substantial Evidence: there must be substantial evidence to get the case to the jury

New Trial; Remittitur/Additur

I. FRCP 59: Motion for New Trial

(a) Grounds. In both jury and bench trials, court may grant a new trial for any reason for which new trials (jury trials) or rehearings (bench trials) were formerly granted.

-2 categories where new trial usually granted: (1) jury’s verdict is against substantial weight of evidence and (2) procedural error

(b) Time for Motion. Motion for new trial shall be filed no later than 10 days after entry of judgment.

II. FRCP 60(b): Relief from Judgment or Order

A. In its discretion, district court may grant a motion for relief from a final judgment, order, or proceeding for various enumerated reasons including…

1. Mistake, Inadvertence, Surprise, or Excusable Neglect

2. Newly discovered evidence

3. Fraud, Misrepresentation, Other Adversary Misconduct

4. Void Judgment

5. Changed Circumstances

6. Interests of Justice

III. GR: A trial court has broad discretion to grant a motion for a new trial, but a new trial should not be granted if there is a reasonable factual basis for the jury’s verdict. New trials should be granted only when there is no support for a verdict.

A. Ahern v. Scholz p. 643: Jury found for A in his breach of K action against S. S’s motion for a new trial was denied.

1. Holding: New trial for S should not have been granted b/c there was ample evidence to support jury’s verdict. Judge cannot overturn verdict just b/c he disagrees w/it.

IV. New Trial and Additur/Remittitur (application of 60(b))

A. GR: Conditional new trial may be granted where verdict is excessive or inadequate.

B. GR: In federal court, remittitur (decreasing jury award) is allowed, but additur (increasing jury award) is not.

1. An inadequate verdict should not be permitted to stand, but the parties retain the right to have a jury determine the question of liability and the extent of the damages. ( Court may not increase an award damage.

2. Policy: W/remittitur, not changing what jury decided; just taking a little bit away. W/additur, adding amt that jury did not find

3. Dimick v. Schiedt p. 658: S won a verdict of $500 from D; court told D that S’s motion for new trial would not be granted if he consented to an increase in damage award. D claimed that increase of damage award w/out his consent and denial of motion for new trial denial of 7th Amendment right.

a. Holding: District court erred in refusing to grant new trial if D agreed to pay P increased damages b/c increasing verdict has effect of adding something that was not in the original verdict.

CHAPTER 9: PERSONAL JURISDICTION

I. State-Court Personal Jurisdiction Analysis (CHART 1)

A. Step 1: Was D present in forum state when process was served on him?

1. If YES, valid personal jx

a. True regardless of how briefly D was in state and his purpose for being there (Burnham v. Superior Court)

2. If NO, continue analysis

B. Step 2: Does the f.s’s long-arm statute provide for jx over D?

1. If NO, f.s. cannot exercise personal jx over D.

a. True even if D has min contacts w/state

2. If YES, continue analysis

C. Step 3: Is any of the following true?

1. D domiciled in f.s. (or is a corp. incorporated in f.s)?

2. D consented to be sued in f.s.

3. D owns property in f.s.

4. D regularly transacts business in f.s. (general jx “systematic and continuous,” does not have to relate to claim)

a. If YES, valid personal jx

b. If NO, continue analysis

D. Step 4: Are at least some of D’s contacts w/forum state voluntary?

1. If NO, D lacks min contacts and f.s. can’t exercise personal jx

2. If YES, continue analysis

E. Step 5: Does the cause of action arise out of or relate to D’s contacts w/the forum state?

1. If NO, are D’s contacts w/f.s. “systematic and continous”?

a. If NO, D lacks min contacts and valid personal jx

b. If YES, continue analysis (general jx applies)

2. If YES, continue analysis

F. Step 6: Are Ds contacts w/f.s. sufficiently great that they should be deemed “minimum contacts” (i.e. could D reasonably have anticipated being forced to litigate in f.s.?)

1. If NO, D lacks minimum contacts, f.s. can’t exercise jx

2. If YES, continue analysis

G. Step 7: Is jx reasonable? Does it comport w/ “traditional notions of fair play and substantial justice?”

-Consider (1) burden on D, (2) interests of f.s., and (3) P’s interest in getting relief in f.s. (from Burger King and World Wide Volkswagen)

1. If NO, even though D has min contacts, due process prevents exercise of personal jx (Asahi)

2. If YES, court may constitutionally exercise jx over D

II. Relevant Rule

A. FRCP 12(b)(2): Defendant’s Defenses and Objections

a. Lack of personal jurisdiction

b. Defense waived forever if omitted from pre-answer motion or, if no motion is made, from the answer.

III. 3 Types of Jx Over Parties

A. In personam (jx over D’s person): gives court pwr to issue judgment against D personally

1. Court may not exercise jx unless D has min contacts w/f.s.

a. Lack of min contacts violates constitutional right to due process (14th Amendment)

B. In Rem (jx over thing): gives court pwr to adjudicate claim made about piece of property or status

C. Quasi-In-Rem: action begins when property owned by D or a debt owed to D seized w/in forum state; thing being seized = pretext for court deciding case w/out any jx over D’s person

1. Court may not exercise jx unless D has min contacts w/f.s.

a. Lack of min contacts violates constitutional right to due process

(14th Amendment)

IV. Jurisdiction over Individuals

A. Mechanisms of Looking for Personal Jx (6)

1. In state (physical presence)

2. Domicile

3. Minimum Contacts

4. Quasi-in-Rem (property in sate)

5. Consent

6. Waiver (12b2, 12h- failure to bring up in timely manner)

B. GR: A state court does not have jx over a nonresident D unless D is personally served w/process in the state or voluntarily appeals in state court. (Pennoyer v. Neff p. 691)

C. GR: A state court may exercise jx over a debt that was incurred in another state, if nonresident debtor is served w/process while in the state (Harris v. Balk)

D. GR: A state does not violate a nonresident driver’s due process rights by enacting legislation that subjects the driver to jx in the state for all actions arising from use of the state’s public highways. (Hess v. Pawloski)

1. Implied Consent: Consent inferred from one’s conduct rather than from one’s direct expression

E. Transient Principle: Individually physically present w/in state could be subjected for jx for any suit (extreme version of physical presence)

1. Fraudulent Inducement into Forum can be a defense to transient principle if P lured D into jx w/falsehoods

V. Long-Arm Statutes: statute which permits court of a state to obtain jx over persons not physically present w/in the state at the time of service

A. Non-Enumerated: “A court of this state may exercise jx on any basis not inconsistent w/Constitution of this State or of the United States.” (from CA)

B. Enumerated: statutes that describe w/some particularity kinds of cases in which courts were to exercise jx

VI. Jurisdiction over Corporations (Shift to Minimum Contacts)

A. GR: F.S. can exercise personal jx over corp. only if corp. has (1) minimum contacts w/f.s. and (2) suit does not offend “traditional notions of fair play and substantial justice.” (from International Shoe)

B. Prong 1: Nature and Quality of Contacts (corp. will be found to have min contacts w/ f.s. if corp. has somehow voluntarily sought to do business in or w/residents of f.s. ( PURPOSEFUL AVAILMENT)

1. Rationale for Purposeful Availment: (from Hanson)

a. When corp. conducts activities w/in a specific state, it enjoys privilege of benefits and protection of laws of that state.

b. Privilege may give rise to obligations, ( appropriate jx in f.s.

2. International Shoe Co. v. Washington p. 710: D had no activities in WA except for activities of its salesman, who lived in the state and worked from their homes. All orders were sent by the salesman to the home office (in MO), and approved by the home office.

a. Holding: D had min contacts w/f.s.

3. McGee v. International Life Insurance Co. p. 717: D was a TX insurance co. that did not solicit business in CA. However, it assumed the policy of X, a CA resident, from another insurance company. X sent premiums from his CA home to D’s out-of-state office. When X died, P (X’s beneficiary) sued D in CA court for payment under the policy.

a. Holding: D had min contacts w/ f.s. b/c it purposefully availed itself of chance to do business in CA. D offered policy to someone it knew lived in CA (getting payments from CA etc.)

4. Hanson v Denkla p. 720: D, a Delaware bank, acted as trustee for a trust set up by S. S was a PA res when she established the trust, but later moved to FL. S’s children, FL residents, later wanted to sue D for trust assets in CA. D had no other contacts w/CA.

a. Holding: Jx in FL improper b/c D did not have min contacts w/FL. D did not purposefully avail itself to jx in FL. D did not voluntarily initiate business transactions w/resident of f.s. or voluntarily do business in the state. It was S’s unilateral decision to move to f.s. that created any kind of cxn.

EFFECTS TEST

5. Calder v. Jones p. 745 (libel and slander): Effects Test (jx proper if reasonable that effects of conduct would be felt in forum state)

a. GR: Personal jx proper over nonresident defendants who engage in conduct that is directed at and causes harm to a resident of the forum state.

b. Facts: Plaintiff Jones brought suit in CA against defendant Calder and other defendants for editing an allegedly libelous article about her in The National Enquirer. Calder had only been to CA twice on unrelated matters; other D had done most of article research in FL, but made phone calls to CA.

c. Holding: Jx in CA proper b/c Ds knew that article would have effect in CA (CA where P lives/works and where mag has largest circulation) and Ds could reasonably anticipate being hailed into CA court

6. Keeton v. Hustler Magazine p. 747 (libel and slander): holding that Hustler, OH corp., subject to personal jx in NH b/c 1000s of copies of mag sold in f.s. sufficient to establish min contacts

7. Gordy v. Daily p. 748 (libel and slander): holding that Daily News, NY corp., subject to personal jx in CA b/c reasonable to expect bulk of harm from defamation to be felt at an individual’s domicile (even though article did not mention CA)

8. World Wide Volkswagen v. Woodson p. 730 (products liability case): Ps injured in OK in accident involving allegedly defective car. Ps purchased car in NY, but sued D1 (car distributor who distributed only on East Coast) and D2 (dealer w/showroom in NY) in OK. D1 and D2 neither sold cars in OK nor did any business there.

a. Holding: Ps could not sue Ds in OK b/c neither had min contacts w/OK. Any cxn btw D’s product and OK was isolated, due to actions of Ps.

b. GR: D can be sued in forum state only if it made some effort to market in forum state.

i. Mere fact that product manufactured by D found its way to f.s. and caused injury there probably not enough to establish jx

c. GR: Forseeability that product might end up in a different state not enough for personal jx under Due Process Clause

i. Foreseeability = whether D’s conduct and cxn w/forum such that he should reasonably anticipate being hailed into court there (relates to Prong 2)

9. Burger King v. Rudzewicz p. 752 (contractual relationship): BK, headquartered in FL, brought suit in FL against R, a MI resident who held a BK franchise, to dissolve the franchise relationship. Contract btw BK and R required R to make royalty payments to BK in FL.

a. Holding: Ongoing payment stream into FL indicates that R had min contacts w/forum state (though this is not dispositive)

b. GR: Contractual negotiations and an ongoing contractual relationship constitute sufficient minimum contacts to establish personal jx, even when D was never physically in forum state.

C. Prong 2: Traditional Notions of Fair Play and Substantial Justice

1. Unreasonableness:

a. GR: Even where min contacts exist, it would be a violation of due process for court to hear a case against non-resident D where it would be “unreasonable” for the suit to be heard

b. 4 Factors to Consider when Evaluating Unreasonableness (from BK and WWW)

i. Burden on Defendant

ii. F.S.’s interest in adjudicating the dispute

iii. P’s interest in obtaining convenient and effective relief

iv. Shared interest of several States in furthering fundamental substantive policies

c. Asahi v. Superior Court of CA p. 765( products liability case): P injured while riding motorcycle in CA. P brought products liability suit against D manufacturer (Taiwanese) in CA, and D impleaded X (Asahi). X had no contacts in CA except for knowing that (1) tires made by D end up in U.S. and (2) 20% U.S. sales in CA.

i. Holding: Jx in CA improper b/c go against traditional notions of fair play and substantial justice. Weighing 3 factors, burden on D severe (would have to travel all the way to CA) while neither P (Taiwanese company) nor CA (no CA resident involved) have strong interest in litigating suit in CA.

ii. Stream of Commerce and Min Contacts: Majority argued that merely placing product in stream of commerce not enough to establish min contacts b/c no purposeful availment (e.g. doing business in CA, advertising in CA, designing product in anticipation of CA sales)

-Other justices argue that knowledge that product would end up in f.s. enough to establish min contacts; either way, same result b/c unreasonable for Asahi to defend in CA

2. “Reasonable Anticipation of Defendant”: Could D have reasonably anticipated being required to litigate in f.s.?

a. Forum Selection Clause

D. Internet Minimum Contacts

1. GR: If Website operator intended to “target residents” of f.s., there are probably min contacts ( jx is proper

2. GR: If out-of-state local business just passively posts info on the web and neither wants to reach in-staters or conduct transactions w/them, there are probably no minimum contacts

3. If D runs e-commerce website that actively tries to get in-staters to purchase goods, there probably will be sufficient min contacts.

4. Pavlovich v. Superior Court p. 776 (CA Supreme Court): utilizes Effects Test from Calder

a. GR: Knowledge, by itself, cannot establish purposeful availment under the effects test.

b. GR: A party purposefully avails itself of a f.s. if the foreseeable effect of the out-of-state action would be to injure a person in the f.s.

c. Facts: TX resident who posted info infringing upon licensing rts of CA business on website created in IN sued in CA for misappropriation of trade secrets. Def aware that website might injure some entity that owned licensing rights.

d. Holding: Jx in CA improper b/c Pav’s only contact w/CA was through publication of material on internet and that could be accessed by any other user in any state, no evidence that Pav specifically targeted CA, and Pav did not know plaintiff’s principal place of business was in CA

VII. Personal Service w/in Jx

A. GR: A state may assert personal jx over any person physically present within its boundaries, even if they are in the state only temporarily, and even if the suit is not related to the person’s presence in the state.

B. Burnham v. Superior Court p. 809: B, a NJ resident, was served w/a summons and petition for divorce while on a brief visit to CA. Court held that jx valid b/c personal jx based on physical presence in f.s. valid since Pennoyer.

VIII. General Jx v. Specific Jx

A. General: applies if nonresident's contacts w/forum state are systematic and continuous, even in cases unrelated to those contacts

1. Nichols v. G.D. Searle and Co. : General jx necessary only when specific jx cannot be justified

a. Broad constructions of general jx should generlly be disfavored

2. USSC has provided little guidance on the level of activity that is sufficient to support general jx; presumably, it must be as much as would be required to support specific jx over a claim arising out of the contacts involvedo2

B. Specific: applies if cause of action arises out of or relates to D's contacts w/the forum state

A. Looks to purposeful availment and reasonableness (of process)

C. GR: Mere purchases, even if they occur at regular intervals, are insufficient for a state to exercise jx over a nonresident in a cause of action unrelated to the purchases, but it does not otherwise offend due process to exercise general jx over a nonresident defendant whose contacts w/a forum state are continuous and systematic. (from Helicopteros)

Venue

I. Relevant Rule and Statute

A. FRCP 12(b)(3): Defendant’s Defenses and Objections:

1. Improper venue

a. Defense waived forever if omitted from pre-answer motion or, if no motion is made, from the answer.

B. 28 U.S.C. § 1391: Venue Generally

(a): 3 basic ways there might be venue if jx founded on diversity of citizenship (same as below, except for must figure out what district suit has been filed in)

(b): 3 basic ways that there might be venue if jx NOT founded solely on diversity of citizenship

(1) any D resides in that district or all Ds reside in that state)

(2) if a “substantial part of the events or omissions giving rise to the claim occurred” in district

(3) at least 1 D is “reachable” in the district, and no other district qualifies

II. General Principles re Venue

A. Def.: place w/in sovereign jx in which a given action is to be brought

1. Determine county or district of State X that case should be tried in

B. Purpose: to protect D against risk that P will select an unfair or inconvenient place of trial

C. Applicable ONLY when personal jx exists

D. GR: Venue is appropriate in a judicial district in which a substantial part of the events or omissions giving rise to the claim took place.

1. Bates v. C&S Adjusters p. 841: B incurred debt in PA and later moved to NY. C&S mailed collection letter to B’s PA address, and postal service forwarded it to NY.

a. Holding: Court held that venue proper under 1391(b)(2) b/c C&S mailed letter w/intent that it would reach B wherever he lived. Actual receipt of letter in NY constituted substantial part of events giving rise to claim.

Forum NonConveniens (Change of Venue)

I. 28 U.S.C. § 1441: Change of Venue.

A. For the convenience of parties and witnesses…a district court may transfer any civil action to any other district or division where it might have been brought.

II. General Principles of Forum NonConveniens

A. Definition: doctrine that an appropriate forum- even though competent under the law- may divest itself from jx for convenience of litigants and witnesses, when it appears that action should proceed in another forum in which action might originally have been brought

B. Defendant’s Motion: D usually moves for forum nonconveniens

a. Case may be transferred only to a district where P would have had the right, independent of the wishes of D, to bring the action

C. Choice of Law: When federal f.n. granted, state law of transferor court to be applied by transferee court.

D. Balancing Test: Forum nonconveniens determinations based on balancing private and public interests

1. Private Factors

a. parties’ access to evidence and key witnesses

b. ability to compel unwilling witnesses to testify

c. other issues making litigation more or less burdensome to parties

2. Public Factors

a. convenience of court

b. alternate forum’s interest in litigation

3. Piper Aircraft Co. v. Reyno p. 847: Estates of Scottish citizens brought wrongful death suit against Piper in PA fed court as a result of an airplane crash in Scotland.

a. Holding: Dismissal proper b/c balancing private and public interests established that Scotland court be a more convenience forum.

CHAPTER 10: CHOOSING THE FORUM- STATE V. FEDERAL COURT

Subject Matter Jurisdiction (general in state, limited in fed)

I. Relevant Rules and Statutes

A. FRCP 12(b)(1): Defendant’s Defenses and Objections

1. Lack of subject matter jurisdiction (case does not belong in federal court)

a. Federal court can hear 1) diversity cases and 2) federal questions

b. Defense can be made at any time

B. 28 USC 1331 (Federal Question): District courts shall have original jx of all civil actions arising under the Constitution, laws, or treaties of the U.S.

C. 28 USC 1332 (Diversity of citizenship; amount in controversy; costs):

(a) District courts shall have original jx of all civil actions where the matter in controversy EXCEEDS THE SUM OR VALUE OF $75,000, exclusive of interests and costs, and is between

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign states;

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of the State in which such alien is domiciled

(c)(1) A corporation is a citizen of any state in which it is incorporated and “the state where it has its principal place of business” ( dual citizenship

-courts use “total activity” test to determine where bulk of activity takes place

(c)(2) Representative of an estate is deemed a citizen of the same state as the decedent

C. POLICY (Amount in Controversy): Exclude inconsequential cases from federal courts while keeping fed court doors open to all and not just well-to-do

II. General Principles

A. No amount-in-controversy requirement for federal question cases

B. Party seeking to invoke jx of federal court must make affirmative showing that case is w/in court’s SMJ

C. Suit can be dismissed for lack of SMJ at any time ( FRCP 12(h)(3)

III. Diversity JX Analysis (not federal question) (Chart 2)

A. Step 1: Does at least 1 side consist solely of foreign countries or citizens of foreign countries? NO

1. Is a corporation a party?

a. If YES, corp. is deemed to be a citizen of both its state of incorporation and its principal place of business.

B. Step 2: Is DIVERSITY COMPLETE? (No P is a citizen of the same state as any D)

1. If NO, no diversity jx

2. If YES, continue analysis

C. Step 3: Does the AMOUNT IN CONTROVERSY exceed $75k, for every one of Ps and claims?

1. If YES, there is diversity jx

2. If NO, are there MULTIPLE PLAINTIFFS?

a. If NO, do P’s claims against a SINGLE DEFENDANT total more than 75k?

i. If NO, no diversity jx

ii. If YES, diversity exists (as to that D)

b. If YES, is the action a class action?

i. If YES, every member of the class may have to satisfy the jx amount

ii. If NO, does at least 1 P have claims totally more than $75k?

(a) If YES, courts are split about aggregation (each P will probably have to separately satisfy the $75k requirement)

(b) If NO, diversity jx not met b/c aggregation among Ps not allowed

III. Elements of Diversity JX (2)

A. Diversity of Citizenship: Constitution gives fed courts jx over “controversies…btw citizens of different states…”

1. Date for Determining: existence of diversity determined at commencement of action

2. Domicile: What controls for citizenship is domicile, not residence. A person’s domicile is where he has his true, fixed, and permanent home.

a. Mas v. Perry p. 861: Diversity of Citizenship

1. GR: A change of citizenship is established only by taking up a (1) true, fixed and permanent residence in a different state (2) w/an intent to remain there.

a. A party’s citizenship is established by fed law, not the law of any individual state.

b. Burden of proof lies w/party asserting jx, w/burden shifting to party challenging proper jx

c. Amount in Controversy: Sum claimed by P controls if apparently made in good faith.

2. Facts: Mas, a French citizen, and his wife, a Mississippi citizen, sued Perry, a LA citizen, for invasion of their privacy (two-way mirror) while Ps rented an apartment from D in LA. Ps, who attended graduate school in LA, filed suit against D in LA; they were uncertain about where they would move upon completing their studies.

3. Holding: Court’s diversity jx appropriate in LA b/c Ps resided in LA solely for educational purposes and lacked requisite intent to remain there. Ps original citizenship (France and MI) was unaffected, making diversity jx appropriate.

3. Complete diversity: No P is a citizen of the same state as any D

B. Amount in Controversy: must exceed $75k

1. Standard of Proof: Party seeking to invoke diversity jx has to show that there is some possibility > $75k in question

2. Aggregation of Claims:

a. Aggregation by Single Plaintiff: If a single P has a claim > $75k, he may add any other claim of his against the same D, even though the other claims are < jx amt. (Supplemental Jx)

(1) No Claim Exceeds $75k: Even if a P does not have any single claim worth more than $75k, he may add together all of his claims against a single D. So long as these claims against a single D total more than $75k, amt in controversy satisfied

(2) Additional defendants: P who has aggregated his claims against a particular D usually may NOT join claims against other Ds for less than jx amt (e.g. P meets amt in contro against D1, but does not meet for D2. P cannot aggregate his claim against D2 w/his claim against D1)

b. Aggregation by Multiple Ps:

(1) At least 1 P meets amt: P may be able to use supplemental jx to enable low-amt Ps to join claims w/high-amt P

(2) No single claim meets amt: If no single P has a claim meeting amt in contro, aggregation by multiple Ps NOT ALLOWED

- Exception: where 2 or more Ps unite to enforce a single title or right in which they have a common and undivided interest

Federal Question Analysis

I. Federal question cases usually arises when federal law is the source of Ps claim.

A. GR: No federal question is raised when P asserts state-created claim which requires interpretation of federal law.

1. Merril Dow Pharmaceuticals, Inc. v. Thompson p. 877: P brought a state-court product liability suit against D for injuries sustained by taking a drug made by D. P claimed that D violated the federal FDA statute by negligently mislabeling the drug. D wanted to remove the case to federal court as a fed question b/c the suit required interpretation of a fed statute.

a. Holding: No fed question was raised b/c P’s claim did not “arise under” fed law.

B. GR: SMJ must be determined from allegations contained in a well-pleaded complaint.

-No fed question raised when P anticipates a defense based on a fed question or D’s answer raises a fed question.

1. Louisville & Nashville R.R. v. Mottley p. 871: P Mottleys claimed that D railroad breached its contract to give P free railroad passes. In their complaint, Ps anticipated that D would raise federal statutory defense, claiming the statute violates the 5th Amendment.

a. Holding: No fed question b/c Ps claim merely breach of K claim and fed statute not essential to that claim; fact that fed law integral to D’s anticipated defense irrelevant

Supplemental Jurisdiction

I. Supplemental Jx Analysis (Chart 3)

A. Step 1: Is there some claim by 1 P v. 1 D such that either (1) P and D are citizens of different states; or (2) claim raises federal question?

1. If No, supp jx. does not apply

2. If YES, continue analysis

B. Step 2: Beyond P1 v. D1 claim, are either of the following present: (1) additional claims by P1 v. D1 that don’t independently satisfy SMJ?; (2) additional Ps or Ds whose claims don’t independently satisfy SMJ?

1. If YES, continue analysis

C. Additional Claims by P1 v. D1

1. Does P1 have any additional claims against D1, beyond the one that is the “core” one referred to above?

2. If YES, as to these additional claims by P1 against D1, supp jx applies

a. Additional claims need not exceed $75k, they can be tacked onto main claim

D. Additional Ps

1. Are there any additional Ps beyond P1?

2. If YES, as to P2 v. D1 (or any other Ps v. D1), supp jx probably applies

a. P2 need not be diverse w/D1, and P2’s claim need not exceed $75k

E. Additional Ds

1. Are there any additional Ds beyond D1?

2. If YES, as to P1 v. D2 (or any claim by any P against D2, D3, etc.), supp jx DOES NOT APPLY

a. Would violate 1367(b)

b. If P1 v. D2 doesn’t raise fed question, P1 must be diverse as to D2, and P1’s claim must exceed $75k

II. Relevant Statute

A. 28 U.S.C. § 1367: Supplemental Jurisdiction

(a) In any civil action of which the district courts have original jx, district courts shall have supplemental jx over all other claims that are so related to claims in the action within such original jx that they form part of the same case or controversy under Article III of the Constitution. Such supplemental jx shall include claims that involve joinder or intervention of additional parties.

(b) In any civil action of which the district courts have original jx founded solely on § 1332, district courts shall NOT have supplemental jx under subsection (a) over claims by Ps against persons made parties under Rule 14, 19, 20, or 24, or over claims by persons proposed to be joined as Ps under Rule 19, or seeking to intervene as Ps under Rule 24, when exercising supplemental jx over such claims would be inconsistent w/jx requirements of § 1332.

-Inconsistent refers to destroying diversity or not meeting a-i-c req.

(c) District courts may decline to exercise supplemental jx over a claim if

(1) claim raises novel or complex issue of State law,

(2) claim substantially predominates over claim or claims over which district court has original jx

(3) district court has dismissed all claims over which it has original jx, or

(4) in exceptional circumstances, there are other compelling reasons for declining jx

B. Policy FOR 28 U.S.C. § 1367:

1. Eliminate piecemeal litigation

C. GR: When one P has an a-i-c > $75k, he can bootstrap multiple Ps in even if they each have a-i-c < $75k.

1. Consistent w/Allapattah, where bootstrapping in claims o.k. b/c other Ps’ claims arose from “same case or controversy”

a. Not inconsistent w/1367(b) b/c “common nucleus” to claims

2. Can’t bring in multiple Ds b/c would constitute exception cited under 1367(b)

III. Rosario Ortega v. Star-Kist Foods, Inc. p. 892 (an anomaly): After child cut her finger on a tuna can, child and parents sued D in fed court, asserting damages in excess of $75k, based on diversity jx. Child’s parents and sister alleged state-law claims for emotional distress they suffered as a result of sister’s injuries.

A. Holding: A federal court’s supplemental jx requires all Ps to meet the amount-in- controversy requirement. Unable to add P’s family members.

IV. General Information

A. Pendent Claim Jx: includes claim arising under fed law and other claims based entirely on state law arising from same set of circumstances

B. Ancillary Jx: Permits parties other than original P to assert related state-law claims against nondiverse opponents, including counterclaims against P

a. extended jx from freestanding (often diversity) claim to an otherwise jx insufficient claim by Ds or similarly situated parties such as intervenors of right

C. Pendent and Ancillary precursors to 28 U.S.C. § 1367 (now antiquated terms)

Removal Jurisdiction

I. General Principles

A. Allows D right to elect forum

B. Preference for litigation in fed court in cases where fed jx requirements satisfied

C. Can only remove from state court to federal court

D. Removal confined to D b/c Ps get to pick forum

E. D can only remove if case is validly w/in federal SMJ (satisfied complete diversity and amount-in-controversy requirements)

II. Relevant Statute- 28 U.S.C. § 1441: Actions removable generally

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in State court of which district courts of U.S. have original jx, may be removed by D or Ds to district court

(b) Any civil action of which district courts have original jx founded on a claim or right arising under Constitution, treaties, or laws of U.S. shall be removable w/out regard to citizenship or residence of parties

(c) Where the claim for which there is original federal jx is a federal question claim, and there is another “separate and independent” claim for which there is no original fed jx, D may remove the whole case. ( Federal Question Case

-Diversity: If claim for which there is fed jx is a diversity claim, presence of 2nd claim (for which there is no original jx) defeats D’s right of removal entirely ( who case must stay in state court

III. Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. p. 916: Timing for Removal

A. GR: Time for removal cannot start running until D is formally served w/summons, relying on the following principle:

1. An individual or entity named as a D is not obliged to engaged in litigation unless notified of the action, and brought under a court’s authority, by formal process

CHAPTER 11: CHOOSING THE LAW TO BE APPLIED IN FEDERAL COURT (ERIE)

ERIE Analysis (Chart 4)

I. When there IS a FRCP on point

A. Step 1: Is the case a diversity case?

1. If no, ignore Erie

2. If yes, continue with analysis

B. Step 2: Is there a federal statute on point?

1. If yes, ignore Erie

2. If no, continue with analysis.

C. Step 3: Is there a FRCP on point? YES

D. Step 4: Can both the Federal Rule and the state policy be followed simultaneously?

1. If no, ignore Erie. Ask only whether the Fed Rule is valid under the REA (Hanna v. Plumer)

2. If yes, follow both Federal Rule and state policy

II. When there IS NOT a FRCP on point

A. Step 1: Is the case a diversity case?

1. If no, ignore Erie

2. If yes, continue with analysis

B. Step 2: Is there a federal statute on point?

1. If yes, ignore Erie

2. If no, continue with analysis.

C. Step 3: Is there a FRCP on point? NO

D. Step 4: Does the federal policy conflict w/the state rule or policy?

1. If no, follow the federal policy

2. If yes, continue with analysis

E. Step 5: Is the area one of the few areas suitable for federal CL (e.g. defense raises a federal question)?

1. If yes, use federal CL

2. If no, continue w/analysis

F. Step 6: Is the state policy or rule basically procedural or basically substantive?

1. If basically substantive, follow the state policy or rule (Erie)

2. If basically procedural, continue w/analysis

G. Step 7: Is the state policy weightier than the federal policy, viewed in context of a federal diversity suit? Consider outcome determinativeness and forum shopping as non-dispositive factors in deciding this.

1. If state policy weightier, follow the state policy (e.g. state statutes of limitation in York)

2. If federal policy weightier, follow federal policy (e.g. in deciding judge-jury allocation, follow federal, not state principles –Byrd)

Relevant Statutes

I. 28 USC § 1652 (Rules of Decision Act): The laws of the several states, except where the Constitution or treaties of the U.S. or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the U.S., in cases where they apply.

A. Federal Law Applied: Federal Constitution, treaties, and constitutional statutes ALWAYS take precedence over all state provisions.

B. State statutes: In absence of federal constitutional or statutory provision, federal courts must follow state constitutions and statutes.

C. Dispute about common law (RDA does not address): What should the federal court do when there is no controlling constitutional or statutory provision on point (i.e. there’s only “common” or “judge-made” law? Erie applies.

II. 28 USC § 2072 (Rules Enabling Act (REA)): Rules of Procedure and Evidence; power to prescribe

(a) USSC shall have power to prescribe general rules of practice and procedure and rules of evidence for cases in the U.S. district courts (including proceedings before magistrates thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict w/such rules shall be of no further force or effect after such rules have taken effect.

1. Procedural rules satisfy this test

(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under § 1291 of this title.

Applicable Cases

(*Erie and York…state law, **Byrd and Hanna…shift to federal law)

When there is NO FRCP

I. Erie Railroad v. Tompkins p. 920: applicable when NO fed procedural law on point

A. GR: In diversity cases, federal courts must apply the substantive law of the forum state.

1. State law includes judge-made CL and state statutes.

B. Facts: P, a PA citizen, was injured while walking on the right of way maintained by D, a NY railroad. Under PA judge-made law, P likely to have lost b/c D liable for only gross (not ordinary) negligence. P sued under NY fed district court, expecting fed court to follow Swift v. Tyson and make its own “federal common law,” which P hoped would make railroad liable.

1. Swift v. Tyson p. (overruled by Erie): held that federal judges could ignore state CL in diversity cases, allowing non-citizens to discriminate against citizens of the state where the fed court sat

C. Holding: Court said that PA law on railroad’s duty of care should be followed, implying 10th Amendment constitutional argument (fed court can’t create state law)

D. Twin Aims (postulated in Hanna 1)

1. Prevent Forum Shopping (process of choosing court that will treat one’s case favorably)

2. Avoid Inequitable Administration of Laws

II. Guaranty Trust Co. v. York p. 930: Outcome-Determinative Test (no FRCP, but issue procedural)

A. GR: Federal courts w/diversity jx must apply state law when it might produce a different outcome between state and federal courts.

1. If decision affects outcome of case, it is considered a substantive issue on which fed court must defer to state

B. Facts: York sued Guaranty Trust in federal court in order to avoid the application of the state’s statute of limitations, which would have barred the claim. GT argued that Y should not be able to use diversity jx to get around state SOL and obtain a result that would not have been available under state law.

C. Holding: State SOL must be followed in a diversity case.

1. State’s interest heavily outcome determinative and bound w/rights of parties. Fed interest weak, and little to be gained from district-to-district uniformity.

III. Byrd v. Blue Ridge Electrical Cooperative, Inc. p. 943: Balancing Test (no FRCP, but issue procedural)

A. GR: When federal law is not substantially likely to affect the outcome of a case, federal law applies.

1. Where state interest in having its policy followed is fairly weak, and the federal interest is strong, the court is likely to hold that federal procedural policy should be followed.

B. Facts: Byrd sued Blue Ridge in SC federal court for injuries caused by BR’s negligence. Issue of whether B was an employee or independent contractor. District Court denied BR’s motion to dismiss, and jury entered verdict for B. Federal appeals court reversed and judge entered judgment for BR. Resulting question, “who decides a certain factual issue, judge or jury?”

C. Holding: USSC held that federal policy having factual matters determined by a jury must be followed (as opposed to state policy of having such an issue decided by a judge). Fed policy on judge-jury allocation strong, and state policy not tightly bound w/rights of parties. Choice not outcome-determinative.

D. USSC rejected outcome-determinativeness as standard.

IV. Analysis when there is an applicable FRCP

A. GR: FRCP, when applicable, takes precedence over state policy.

1. FRCP controlling b/c adopted pursuant to congressional statute (REA)

B. 2 Step Analysis

1. Does the FRCP in fact apply to the issue at hand?

2. If the FRCP applies, is it valid under REA?

V. Hanna v. Plumer p. 949: applicable when there is a direct conflict btw federal procedural rule and state rule (applicable FRCP)

A. GR: A federal court exercising diversity jx must apply state substantive law and federal procedural law.

B. Facts: P sued D in diversity in MA federal court. D is the executor of the estate. P causes process to be served on D’s wife, by leaving copies of the summons and complaint w/her at D’s dwelling place. FRCP 4(d)(1) (now 4(e)(2)) allows service on D by leaving copies of the summons and complaint at D’s dwelling place w/person of suitable age and discretion. However, MA statute sets special standards for personal service on an executor of an estate, which was not complied w/here.

C. Holding: FRCP takes priority of MA state policy or statute, even if applying FRCP might help produce a different outcome than had the state rule been applied.

1. FRCP valid b/c in accord w/REA (is basically procedural)

2. FRCP applies b/c it specifies allowable method of service in fed action

VI. Burlington Northern Railroad Co. v. Woods p. 965: (Conflicting state and federal)

A. GR: When a state procedural statute and a federal procedural statute conflict, a fed court sitting in diversity must apply the federal standard.

B. Facts: After trial court judgment for Woods was affirmed, federal appeals court applied mandatory affirmance policy as required by AL state statute. Issue of whether Fed Rule of Appellate Proc 38 (appeals court has discretion to award “just damages” upon a finding that an appeal is frivolous) or AL mandatory affirmance penalty applies. State and fed rule conflict b/c strict enforcement of state rule forbids fed court from imposing less than 10% as just award.

C. Holding: Fed rule must apply b/c Congress’ rule-making authority extends to all procedural matters before fed courts and may not “abridge, enlarge, or modify any substantive right” under laws of state. In this case, purposes of state and fed rules the same- to prevent filing of frivolous appeals for purposes of delay in execution of judgment.

VI. Walker v. Amco Steel Corp, p. 972: (Fed and State Rule not in conflict…federal rule may not apply)

A. GR: When fed rules do not directly conflict w/state rules, state rules will be enforced.

B. Facts: P filed a complaint against D w/court on Aug. 19, 1977. On Dec. 1, 1977, P causes D to be served with process. AS moves to dismiss P’s complaint b/c barred by OK’s 2 yr SOL (P injured Aug. 22, 1975). FRCP 3 says that civil action commenced @ filing of complaint, but OK statute says commenced when D receives service of process.

C. Holding: Court held that state law must be applied b/c neither federal rule nor state rule spoke to issue of when a state statute of limitations is tolled. FRCP 3 and state SOL exist w/out conflict, so Erie analysis applies.

VII. Gasperini v. Center for Humanties, Inc. p. 975: (Some state procedural laws applied in fed court…combo of substantive and procedural law)

A. GR: When state law interests relating to division of judge-jury function can be furthered in fed diversity action w/out frustrating fed interests, state law will apply.

B. Facts: Gasperini obtained a jury verdict in NY federal court against Center for Humanties, Inc for breach of contract, conversion, and negligence after CFH lost 300 photographs lent to it by G. Jury valued each photograph at $1500 and awarded P $450k. CH argued that judgment was excessive and moved for new trial. 2nd Circuit Appeals Court vacated judgment, applying NY statute that requires court to determine whether verdict “deviates materially from what would be reasonable compensation.” NY statute conflicted w/FRCP where fed courts generally review a jury award to determine if it “shocks the conscience of the court”

C. Holding: USSC upheld NY statute. NY statute contained both substantive (re statutory caps) and procedural (instructions to appellate courts) elements in terms of Erie’s twin aims (prevent forum shopping and avoid inequitable administration of laws). USSC determined whether application of substantive component offended re- examination clause of 7th Amendment and held that since 7th Amendment does not forbid appellate review of verdict, state law interests can be preserved w/out frustrating fed interests.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download