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Civ Pro Outline V

Judiciary Act of 1789 (§ 1652- Rules of Decision Act) “The laws of the several states, except where the Constitution or treaties of the US or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the US, in cases where they apply.” State law provides decisional law when there is no applicable federal statute or constitution Applies only to §1332 diversity cases §1331 fed question must apply federal law only in a different state so no inequitable outcomes Avoidance of inequitable administration of justice; preventing inequitable results



Exactly the type of horizontal forum shopping the court wants to prevent in Erie Without a change of residence, a corporate citizen of the state could avail itself of the federal rule by incorporating in another state. Problem w/ non-uniformity: puts grave discrimination on ∆s, could lead to inequitable results. Applied Swift test

4 kinds of conflicts between state and federal law: Constitutional (US constitution trumps state law; Supremacy clause of the US Constitution) Statutory Rule (FRCP, FRAP)

§2072 – Rules Enabling Act

constitutional, but now) Sometimes no valid fed statute or rule on point

4 background policy issues in Erie: Federalism - Balance between national interests and state interests Uniformity Vertical (between federal and state courts) Horizontal (within same federal or state courts) Discouraging forum shopping - Horizontal forum shopping is ok b/c it’s still state law,

Byrd v. Blue Ridge – Key issue is if ∏ gets a jury trial or a bench ruling on factual question of immunity—state and federal law differ—State allows the judge to decide and fed. courts give to jury. Apply two part balancing test- (1) Is there a state created right or obligation (2) would applying state law undermine a strong federal interest? Fed. courts have an overwhelming interest in using juries b/c they are better triers of fact, in touch w/ community, etc. This affects no state created right or obligation. Courts should be able to govern themselves. Those who invoke jurisdiction

When it’s not distilled in rules Conflicts with statutory, rule, policy/practices are areas the Erie problem is mostly concerned with

Black & White Taxi v. Brown & Yellow Taxi- one of two parties re-incorporates in Tennessee in order to be diverse for a federal claim so that Kentucky state law would not have to apply.

VT law barring arbitration of employment should be followed. so should federal court Erie RR v. Tompkins – Pedestrian is hit by a passing train and knocked onto the tracks .When suit is filed.MS law barring out-of-state corporations that don’t pay MS taxes from suing in MS should be followed – if state court bars recovery. in which case substantially different results are OK When no recovery can be had in a state ct. fed ct in equity cannot take the suit just b/c there is juris. PA common law = only wanton negligence. ORANGE 11/28/2012 Ragan v.State statute of limitations barred suit in state court. Merchants (p236) . Unless a jury is making the decision. not FRCP 23. not federal law mandating arbitration b/c to use federal rule would create a different outcome Woods v.Civ Pro Outline V of fed cts should get its protections. Overruled Swift as unconstitutional Federal courts must apply the rules of the forum state in diversity actions Except in matters governed by the Federal Constitution or by acts of Congress. Any rule that could affect the outcome should be considered substantive under Erie Laches doctrine is basically the same as statute of limitations in equitable court Hanna v. the law to be applied in any case is the law of the state. not FRCP 3 – to be consistent with Erie Cohen v. Interstate (p236) . (outcome test must be balanced with federal interests) Cannot use outcome determinative test b/c it is unclear that applying different laws will result in different outcomes. use the federal rule Only use state law to fill in a gap in federal rules Is the FRCP constitutional? (2) If yes. Plumer – about FRCP 4 (service) Whenever federal rules and state rules are at odds. ∏ filed in federal court “OUTCOME-DETERMINATIVE” TEST If the outcome would be substantially different. York .NJ statute requiring small shareholder to post a bond for suit expenses should be followed. fed courts must apply state laws of the forum state in order to avoid unjust and inconsistent results. NY law = ordinary negligence.Filed in NY on basis of diversity. To avoid different results in different forums with the same or similar set of facts Grave discrimination non-citizens against in state citizens. Polygraphic (p236) . regardless of whether that law is declared by the state legislature or by its would be an invasion of the authority of the State and a denial of its independence. Twin aims/goals of Erie: Discourage forum shopping nd fed courts Prevent inequitable results Guaranty Trust v.1 b/c NJ law is not merely a regulation of procedure Bernhardt v. Trying to create uniformity. statute of limitations follows state law. Beneficial (p236) . does it fall within the Rules Enabling Act (§2072) of rules of practice and .

Use forum state’s choice of law rule (which state’s law should be applied). evidence must be probative and properly provable in the case. Disadvantages of Swift v. so the court must look to those considerations to determine if the evidence is admissible Trial court erred in applying state law. sometimes not clear (i. negotiate contract in MA. asserted that federal courts did not have to follow state law in diversity cases only gives deference to state statutory law and constitution. Tyson: Sims v. but it doesn’t matter b/c the federal law would have come out the same way ORANGE 11/28/2012 Federalism – courts create common law where Congress could not pass a statute. “The laws of the several states” for purposes of Rules of Decision Act §1652=> not only statutes but also common law of the state. rule is outcome determinative. Holds Erie inapplicable to FRCP Overruled by Erie Klaxon . it takes with it the law of the original state §1404 only applies to Δs b/c П chooses where to file initially and b/c if P files in the wrong place. it can be dismissed and refilled Describes exceptions to Erie rule – reasons to not take state rules Original dismissal is under state law (but in federal court) MD court doesn’t have to apply CA common law §1652 – Rules of Decision act Interpreted to say that federal courts only had to follow state statutes. Rule 41 can’t make them. doesn’t always mean you will apply state law -D test so it is applied only in those situations where the rule would encourage forum shopping or cause inequitable administration of the laws. If a claim preclusive rule originates in state law. Great American – Widow against insurance company Federal rules of evidence are not governed by Erie b/c they are an act of Congress Under FRE 401. Abolishes federal common law. The Non-citizens get the benefit of forum shopping on laws Violates equal protection Difficult for citizens to predict which standard of law they will apply Semteck "properly provable" inquiry turns on state-law substantive policy considerations. to be admissible. Tyson Van Dusen – If a case is transferred to another state.Civ Pro Outline V procedure? (3) Is the Rule controlling of case conduct? Just because the fed. however. This violates the allocation of power in the Constitution The law is considered an entity to be “found” of itself Swift v. then the effect is only binding in that state . but breached contract in FL. feds can’t make them.e.

Under federal common law. (court could have just read 7th broadly as controlling but didn’t. Woods (p247) Exception to always using state law AL law says if Δ stays paying damages until appeals are over has to pay a 10% penalty – federal law (Rule 38) says no penalty Use federal law b/c there is a conflict When reasonably necessary to maintain the integrity of that system of rules. Gasperini v.Joinder of Claims and Remedies Rule 19 .cross-claim against co-party: Consequences of not asserting a claim against an opposing party that arise out of the same transaction/occurrence may opportunity to plead Rule 14 . impleaded party becomes 3rd party Δ Rule 18 . federal diversity judgment is to be accorded same preclusive effect that would be applied by state courts in state in which federal diversity court sits. the trial judge would assume the role. Reasonably necessary means when the rule can be classified as procedural. apply the federal rule. Nationwide uniformity is better served by letting state law govern Fed Dept.Third Party Practice Requires derivative liability (can implead another ∆ that is also liable) Impleader becomes 3rd party ∏. Stores . except the original dismissal is under federal law – this does bar re-trying the case anywhere in the country Burlington v. Stewart Org v. it just bars the remedy Dismissal of state court claim by federal court sitting in diversity "on the merits" barred ∏ from re-filing same claim in same court.Joinder of persons needed for Just adjudication Indispensable party rule . but not from re-filing in a different court. Ricoh (p247) – governs application of federal rules to diversity cases Exception to always applying state lawAL law conflicts with USC 1404 Gives reasons of fairness for using federal law Uses federal law: 1) Constitutional 2) made by Congress 3) controls case conduct Rule 13 . 7th amendment bars this Instead of the circuit court reviewing the jury finding.Counterclaim and Cross claim aclaim arising out of same transaction or occurrence ORANGE 11/28/2012 bparty’s claim which is not related to original transaction or occurrence that is of the opposing party’s claim. (at courts discretion) c.counterclaims will not reduce value. but can exceed (can’t offset other claim) g.same as Semteck. although it incidentally affects a party’s substantive rights.Civ Pro Outline V Traditional rule is dismissal for statute of limits does not extinguish the right. Center for Humanities (p247) Exception to always using state law NY law requires appellate review of damages.

(15a2) & files 3rd party claims (14a3) Power co. Separate trials Reaches judicial economy if all actions are consolidated.Debtor against bank for Truth in Lending Act violation. General Motors – 10 employees sued employer for Title 7 discrimination on race Rule 20 test for whether parties can be joined Each party’s claims must arise out of the same transaction or occurrence Some question of law or fact must be common to all parties Parties can be joined even though they suffer harm in different ways Rule 20 . destroying diversity & suit dismissed Results wouldn’t change under §1367 b/c §1367(b) doesn’t apply to parties joined by Rule 14 Rule 42 – Consolidation. Bank counterclaimed for balance of debt. bdiscretion in separating case (can also sever under R42) Kroger – Wrongful death action against power company Plant v.Civ Pro Outline V Bring in parties that need to be joined because they have an interest in the action or because they are needed to grant proper relief If necessary party cannot be joined. leaving only crane co. court must decide whether to proceed without them Joined parties must be subject to PJ and joinder cannot destroy diversity for SMJ Factors to determine whether third party is indispensable Extent of prejudices to the present parties that the 3rd parties absence may bring The extent that prejudices may be avoided or reduced by other means The adequacy of judgment w/o third party Helzberg Diamonds . .All persons may join in one action if they assert any right to relief AND if any question of law or fact common to all these persons will arise in the action.Action by a tenant against a landlord for an injunction to keep the landlord from leasing space to a competitor in violation of their agreement A party does not become indispensable (Rule 19) to a suit to determine rights under a K simply because that parties rights or obligations under a totally separate K will be affected by the decision Rule 21 – Misjoinder and Nonjoinder of Parties ORANGE 11/28/2012 Power company files for SJ and impleads crane company (rule 14) Kroger amends complaint to include crane co. Eldredge –Class action discrimination suit against the carpentry apprentice organization for discrimination against women where potential employers of the class are not necessary parties under Rule 19 b/c ∏’s interests aren’t harmed by their absence (relief & prejudice) Mosley v. gets dismissed. Blazer – 13(a) .Permissive Joinder of Parties a. as ∆.

white firefighters file a suit alleging discrimination as a result of the decree . not me” is not a basis for impleader – “It was also him” is proper.Action by patient against device manufacturer in federal court. Must show that the parties (Π and Δ) may not represent the proposed intervenors’ interests Need only show POTENTIAL for inadequate representation (Miller) Whigham v. “It was him. constructor impleads nail maker Rule 14(a) – Δ may assert a claim against anyone not a party to the original lawsuit if that party’s liability is dependent upon the outcome of the original action. which is reviewed for an abuse of discretion. except for the timeliness element.Impleader is only appropriate if the 3rd party is secondarily liable to the original Δ – if Δ is liable to ∏.Reaches opposite conclusion of Plant – debt counterclaims raise issues of fact that are significantly different from the initial claims under the Truth in Lending Act.Civ Pro Outline V Counterclaims are compulsory if they are logically related to the ∏’s claims and share a factual basis. Intervention of Right Intervention is timely Party has an interest in the property or transaction The interest is at risk Other parties in the suit are not representing that risk Martin v. Wilks – Black firefighters against the city for employment discrimination – after consent decree is approved. Watergate Landmark Condos v. Wiss (notes case) . An intervenor need not have the same standing necessary to initiate a lawsuit. CTB – §1441(b) . ORANGE 11/28/2012 B. Intervention Rule 24 – Allows unwanted parties to enter lawsuits A.chicken farmer against chicken house constructor. Must only show that impairments of the intervenors’ substantial legal interest is POSSIBLE if intervention is denied – minimal burden. Bollinger A district court's denial of intervention as of right is reviewed de novo. and doctor/hospital in state court Joint tortfeasors are not indispensable parties under Rule 19(b) Like Plant b/c res judicata may preclude 2nd suit against dr Price v. Impleader is available. Absent a tort or contractual right to contribution or indemnity. Permissive intervention – party may be allowed to join Grutter v. A party can use Impleader only if the substantive law allows the 3rd party Π to recover against the 3rd party Δ. A 3rd party may be impleaded only when the original Δ is trying to pass all or part of his own liability off onto the 3rd party. Beneficial Finance (notes case) . Temple . then 3rd party is liable to ∆. evidence needed for each claim is different.

ability/willingness of existing parties to litigate. Burden of showing inadequacy of protection by other parties is on the movant. but must post bond or give property to ct Jochims v. only an interest that would be impaired by its outcome. to join the claimants in the same proceeding and require them to litigate among themselves their rights. not the entire case. The intervention motion was granted because Marcos met the requirements of FRCP 24: . Avoid double liability. interests of proposed intervenors ORANGE 11/28/2012 §1337 . (Helzberg) enough to show protection may be inadequate.Intervention is allowed on specific parts of a case (to challenge protective order). Isuzu Motors . you didn’t have chance to come back. but burden is minimal. Philippines – Interpleader (statutory) action by art dealer against parties who may own the paintings in his possession Since Braemer has a collateral interest he can’t adequately represent Marcos. her motion to intervene is granted. §1335 Broadens the circumstances in which interpleader is available Section (A) removes limitations on fed SMJ Cohen v. It’s order to clarify procedural uncertainties. Adequacy analysis: experience of lawyer. Interpleader Allows a party. and venue Statutory makes easier to bring claims. If you had chance to intervene and you didn’t.Expands venue provisions to permit venue where any claimant resides §1369 – Multi-Party Platform Jurisdiction §1397 – Interpleader can be brought in the district where 1 claimant resides fed court has original jurisdiction involving minimal diversity where at least 75 people died in the same accident §2361 . NRDC v. PJ. one would not be allowed to bring in a claim after their interests were adjudicated because it was considered an impermissible collateral attack (no longer available)—Their claim would be precluded b/c the case has already been decided and the law is already settled. against whom two or more mutually exclusive claims relating to the same property or fund have been asserted. if any. to the property or fund. US Nuclear Regulatory Comm’n Intervention does not require direct interest in property or transaction.Civ Pro Outline V Judgment or decree among parties to a lawsuit resolves the issues among them but does not conclude the rights of strangers who were not parties to the suit (even if had previous knowledge of suit) Burden for both parties to insure all necessary parties are in the suit or joined under Rule Prior to Wilks.permits nationwide service of process Rule 22 closely resembles the Interpleader Act but is subject to normal rules for SMJ.

Competence – Could relate to ethnics of lawyers? Concurrent conflicts Rule 23(b): (must have one) Prosecutions of separate actions by or against individual members of class would create a risk of: Inconsistent or varying adjudications would establish incompatible standards of care for party opposing class Adjudication for an individual member which would substantially impair or impede other members from taking action or protecting themselves. will satisfy the other Typicality Requirement that class representatives stand. Are named Ps are typical of unnamed Ps? (Past.Civ Pro Outline V Timely intervention Interest in the property that is the subject of the underlying action The interest is likely to be prejudiced by the action Existing parties are unlikely to protect the interest Timeliness is determined at the court’s discretion How long did the intervener wait after finding out about the suit? Did the delay prejudice the other parties? Will the intervener be prejudiced if intervention is denied? Other circumstances Rule 23(a): (If you fail in satisfying 3. Must have experience with this kind of case. and future Ps). in the same shoes as the average class member. Lawyers should Questions of law OR fact common to class predominate over the facts specific to each individual. Dunlevy (notes case) – Interpleader against father. Sparked Federal Interpleader Act. The lawyer should have no conflicts. daughter wins – insurer paid twice. insurance company to determine who benefits from the policy – in PA. The opposing party has acted or refused to act on grounds generally applicable to the class one. in significant respect. father wins. injunctions or equitable relief Adequacy of Representation Court finds that Class representative must have a stake in the litigations. AND class action would be the . Relation to the lawyer should be straightforward. getting rid of jurisdictional barriers to interpleader. in CA. daughter. present. Applies to law or fact ORANGE 11/28/2012 be competent in this area. you will also fail in 4) Numerosity Is established if the class representative can show that enough persons are in the class to make joining them as individual impractical (fairly easy threshold) Commonality Should be a class – that it should consist of persons who share characteristics that matter in terms of substantive law involved.

will include all members who don’t request exclusion C: Desirability or undesirability of concentrating the suit in the particular forum D: Difficulties likely to be encountered in management of class action. Michigan High Athletics – Female athletes sue school for discrimination 23(a)(1) – Number of ∏s justify a conclusion of numerosity (thousands of students) 23(a)(2) – What is necessary for certification are common issues of which the resolution will advance the lawsuit – here everyone has the same law and fact questions of discrimination 23(a)(3) – The mere fact of some difference between claims of Ps and the different ways harm was experienced are not enough to extinguish typicality – in this case the different claims (like scheduling and inadequate facilities) are less important than the underlying discrimination 23(a)(4) – the lawyers are experienced. Fairness hearing.Civ Pro Outline V best way for fair and efficient adjudication. requires only minimum diversity §1332(d) – allows federal court to decline jurisdiction over class actions if: >2/3 of Ps are in-state Rule 23(d) & (e) & (f): 23(d) – Makes fed courts have lots of latitude in order in conduct of actions 23(e) 1 significant D is in-state Injuries occurred in-state . and even though some class members might not care about the discrimination. where even if you don’t opt out you can object Requires ct approval over SETTLEMENT agreements 23(f) – APPEALS. Wilks) Rule 23(c): (Includes an “OPT OUT” option for ∏s) 23c2 – If you don’t opt out (b3).Class actions allow parties that aren’t in the suit to be bound by its result (in violation of the general principle – Martin v. unless you request to be out -classes. that is not a bar b/c D will represent their interest Constitutional issues . Matters pertinent to findings include: A: Interest of members in individually controlling prosecution/defense of separate actions. you are in. whether favorable or not. and sub issues with regard to different injuries Class Action Fairness Act – allows Ps to be coupled together to reach the $5million threshold. B: Judgment.can get an appeal from a grant or denial of a class action certification even though it is not a final judgment using a collateral order if granted appeal by the ct ORANGE 11/28/2012 §1453 – Removal of class actions Communities for Equity v.

Fibreboard (notes case) Israel v. state SC rules that the case is barred by a previous class action There must be adequate representation of the members of a class action or the judgment is not binding on the parties not adequately represented. Common fund problem – global settlement cases covering all future actions. RICO class certified. Equifax – Opposite decision of Heaven . Compulsory counterclaims bar class certification if the counterclaims require individual Ps to present individual defenses certified b/c state laws vary so much (4 cases in federal district court were combined) Amchem v. Hansberry is not bound by the previous decision because he was not given notice of the action nor was he given an opportunity to be heard Ballard v.Debt counterclaims should not be compulsory because debt collection doesn’t belong in federal court Ortiz v.” then certification is proper Certification doesn’t satisfy Rule 23(a)(4) Currently injured ∏’s goal is generous immediate payments. Hansberry v.Civ Pro Outline V Duke v. Avis (Note case) . Humana – Doctors sue HMOs for fixing prices under RICO and prompt pay laws. Walmart – Female managers against employer for discrimination Original request for class included 1. Windsor – Sick and exposed asbestos people try to certify class against company Courts lack authority to substitute for Rule 23’s certification criteria a standard never adopted – that if a settlement is “fair. Trust Company Bank – lease holder against bank for violation of Consumer Lending Act Review of class certification is for abuse of discretion Court may consider compulsory counterclaims and their affects in determining whether class certification is proper under Rule 23(b)(3)(a). Lee – Black family moves into white neighborhood in violation of restrictive clause. while exposure-only ∏’s goal is inflation-protected funds for future. Circuit affirmed class certification stating that the district court did not abuse its discretion ORANGE 11/28/2012 Heaven v.∏ is responsible for giving notice to every member of the class who can be identified Conflict of interest between lawyer and class – lawyer wanted to settle b/c of a prior lawsuit whose payment depended on it.5 million female employees from entry-level to management Equal Pay Discrimination – Granted Promotion Claim Discrimination – Granted part (discrimination) and Rejected part (about back pay b/c there was not enough info about each class member) Court certified a modified class but Walmart appealed (§1292). class wanted what was best for it Evidence must exist to ascertain settlement fund’s upper limit Klay v. prompt pay not .

Liggett – Smoker class action Vacated punitive damages as excessive as a matter of law ($145 billion) Third District erred as a matter of law in conducting a plenary review of the trial court’s decision to certify the Engle Class after completion of an extended Phase I trial and after a different panel of the Third District upheld the certification (after D filed interlocutory appeal of certification) It was proper to allow the jury to make findings in Phase I on general causation. Shutts – landowners against gas company lessee for interest owed on royalties Certified mail to class members in a different state from the action. addiction of cigarettes. satisfies due process A forum state can exercise PJ of the claim of an absent class action P. breach of implied warranty.Civ Pro Outline V not possess minimum contacts with the forum state Forum state can’t apply that state’s law to every claim in a class action if the state does not have a significant contact and interest in every claim asserted ORANGE 11/28/2012 Engle v. that includes an option to opt out of the litigation. negligence. even if P does . civil-conspiracy-concealment. Phillips v. strict liability. fraud.