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Bringing a civil case in Federal court 1. The complaint a. Needs to state i. Grounds for SMJ ii. The claim for relief (legal theory of liability) iii. Demand for relief (damages) b. Liberal pleading method i. Courts will read rule 8a complaints liberally as to the factually allegation on the face of the complaint ii. Will not dismiss P’s claim unless there are no set of facts which would entitle the P to relief 2. D’s response to complaint: the answer a. Timing i. 20 days to respond from the time he is served with an answer or other response ii. If service is waived, 60 days from the date the request for waiver was mailed 1. 90 days if outside US 2. Strategy a. Gives D more time to research and file pre trial motions to dismiss on procedural grounds b. Contents i. Admit or deny allegations 1. Affirmative defenses a. Admit allegation but argue that D was legally justified to do it ii. Raise counterclaim 1
1. P then is allowed to file a reply c. D’s option to file pre-trial motions rule 12 i. 12(b) motion to dismiss 1. Lack of SMJ 2. Lack of PJ 3. Improper venue 4. Insufficiency of process a. Something wrong with the documents 5. Insufficiency of service of process a. Something wrong with how summons was actually served i. Ex – done by someone under 18 6. Failure to state a claim upon which relief may be granted (demurrer) a. “even if everything P says in the complaint is true, D still wins because P is not entitled to relief under the law” b. Judge only looks at the complaint assuming all facts are true 7. Failure to join a necessary party under rule 19 ii. Timing 1. Generally – if pre answer motion denied a. Must file an answer within ten days of that denial 2. Can be raised at any time (even on appeal) a. 12b1 lack of SMJ by parties or the court 3. Must be raised in D’s first responsive pleading or waived a. Plead them or lose them b. 12b2-5 i. Lack of PJ 2
ii. Improper venue iii. Insufficiency of process iv. Insufficiency of service of process 4. Must be raised before the end of the trial a. 12b6 and 7 i. Failure to state a claim upon which relief may be granted ii. Failure to join a necessary party under rule 19 iii. Dismissals with and without prejudice 1. If rule 12 dismissal is granted rule 12h allows judge to let P amend complaint to fix the problem (especially if it is procedural) a. Called a dismissal without prejudice aka can be refilled 2. Dismissal with prejudice – P cannot refile the complaint d. Rule 12c – motion for judgment on the pleadings i. Judgment is made based on the complaint AND the answer ii. Different from 12b6 b/c it takes into account the answer and any other pleadings e. Rule 12e – motion for a more definite statement i. So D can figure out what allegation and claims are actually being made against him f. Rule 12f – motion to strike improper material i. Such as redundancies, scandalous or immaterial allegation ii. Usually used by celebrities or corportations 1. Facts are immaterial to the actual legal contention but are attached for the purpose of public consumption and or coercing a settlement from a celebrity 3. Default Rule 55 3
a. Definition - D does nothing and simply fails to respond to the P’s complaint b. P must file a motion to obtain a default judgment. Must show i. No response from D ii. Damages are for a specific amount (if not, P, at a hearing, will have to prove how much) iii. Affidavit that the specific amount of damages is still actually owed iv. D is not incompetent or an infant c. Notifying D of default i. If D appeared in any way, must be notified at least 3 days before the default hearing d. D’s defenses i. If default has been granted - 60b – can get default set aside 1. Must show mistake, inadvertence, or excusable neglect for failing to respond ii. If there is just an entry of default (no default judgment yet) – 55c 1. Can have it set aside for “good cause shown” 2. It is a lower standard than 60b 4. Amendment of Pleadings rule 15 a. Parties can amend or supplement their pleadings in order to add or omit certain claims, parties, defenses, allegations, counterclaims etc b. Often necessary b/c at lawsuit proceeds, circumstances change c. Applies to all pleadings including 12b pre answer motions d. Timing i. If an amendment can “relate back” to the date of the original pleading, it can be allowed even if the SOL has run 1. If new claim relates back to original claim, the SOL will not preclude the late addition of the new claim 4
5. Lawyers responsibility in signing the pleadings – rule 11 a. Requires attorneys to review and sign every motion, pleading or paper they file or submit in the case b. Pleading cannot be filed to harass, delay, or increase cost of litigation c. Pleading has evidentiary support or likely to d. Must be a “non frivolous” argument e. A party must notify the other of a potential rule 11 violation 21 days in advance i. Gives attorney time to correct the offending pleading before the court finds out about it Complex litigation 1. Multiple claims a. Joinder of claim rule 18 i. Very broad rule – P may sue on any number of claims for relief against a particular D or group of Ds ii. Does not need to be related to the same transaction iii. Judge’s discretion 1. Can separate the claims into separate trials if there are many claims that arise out of different factual circumstances (diff witnesses, evidence) such that it will be too confusing or unfair to keep them together b. Counterclaims rule 13a and b i. Offensive claim by the D against an opposing party, the P ii. Compulsory 1. Claims made by D which arise from the “same transaction or occurrence” of the basis of P’s claim 2. D must raise compulsory counterclaims during the lawsuit or else he waives the right to seek redress on that issue iii. Permissive 5
Claims made by D that does not arise from the same transaction or occurrence 2. SMJ is the tricky ring a. Use of 1367 supplemental juris 1. Each claim must have an independent basis for SMJ iii. or cross claim must satisfy the 3 rings or else they cannot be joined (even if rule 13 and 18 are satisfied) ii. counterclaim. Additional claims a. Compulsory i. Must arise out of the same transaction or occurrence iii. Offensive claim against a co-party (D v D) ii. Each additional joined claim. In Fed Q case. Where problems can arise 1. Strategy 1. can add state law claim 2. Multiple claims and the three ring circus i. Usually PJ and venue are not a problem b/c it is the same set of parties 2. Cross-claims i.1. P will usually sue more than one D so that the Ds start cross claiming each other to blame the other parties d. Permissive 6 . Yes b. Up to the judges discretion whether or not he wants to allow the counterclaim c. Yes because “arising under same case or controversy” more broad than “same transaction or occurance” b. Counterclaims a.
it can arise out of the same case or controversy 3. Cross claims a. Raise “one common question” of law or fact to either all of the Ps or all of the Ds 2. Joinder of parties rule 19 20 i.i. What if a required doesn’t meet the three rings? a. Required parties 1. Their absence will create a substantial risk of double or inconsistent obligations 3. Multiple Parties a. At the judge’s discretion 3. Subjected to having their legal interest being impaired c. Must be either a. Subject to the 100-mile bulge service of process rule 4. Possibly because arising out of the same transaction or occurrence is more narrow. Necessary to give complete relief to the existing parties b. Must be the “same transaction or occurrence” AND b. Rule 19b when joinder is not feasible i. Parties can join together and sue as co-plaintiffs or parties may be joined together by P and sued as co-Ds a. Courts will weigh 7 . Permissive joinder 1. Parties required to be involved for adjudication 2. With new parties. Yes all cross claims b/c by definition must be out of the same transaction or occurrence 2. so even though it is not compulsory. PJ and venue now become an issue ii.
A claim against an outsider to the suit. Impleader/third party practice rule 14 i. Galves’ liability would derive from employee’s actions iii. such as another jurisdiction ii. The extent the prejudice could be lessened by other measures 3. Court must decide whether to terminate the lawsuit or carry on without the party b. Dean sues Galves and Galves impleads employee b. SMJ a. Whether judgment would be adequate w/o required party 4. Galves becomes D/third party party P and employee becomes third party D ii. Ex – Galves lends car to employee who then crashes into Dean a. No need for independent SMJ b/c supplemental jurisdiction will apply 8 . Whether there would be an adequate remedy w/o the required party. PJ a. Even if long arm statute does not allow PJ outside state borders 2.1. Third party P must have derivative liability against third party D 1. who may be liable to the existing D. 3 rings relaxed 1. Rule 4K1B – 100 mile bulge – PJ can be found for third party D if within 100 miles of the fed courthouse i. Extent of prejudice to the parties w/o the required party 2. if the existing D is deemed liable to the P 1.
Supplemental juris not available in diversity cases if they would destroy diversity d. Rule 22 1. Protects from having to pay twice 9 . Intervention rule 24 i. Intervention of Right 24a 1. Venue a. Initiated by an owner of a property who (or rights to funds) owes all or part of that property to two or more parties. Different from impleader b/c outsider is taking the action to come into the lawsuit iii. He can force the parties to litigate their interests 3.i. An outsider who wants in the lawsuit either as a P or D ii. Interpleader Rule 22 and §1335 i. No independent proper venue determination for third party D c. This provides protection to the holder so that he does not end up owing the whole property to multiple people a. Court has discretion to allow or disallow a. Allowed if intervener’s interest involve at least one common question of law or fact to those interests being litigated in the existing suit 2. Usually disallowed if intervention would cause delay or prejudice or delay to the original parties v. Would obviously arise out of same case or controversy 3. Permissive intervention 24b 1. Party must be allowed to intervene b/c their interests in the action may be harmed if not allowed to intervene iv. but not sure which one 2. All 3 rings must be satisfied including independent basis for SMJ 1.
Only situation where rule interpleader will be possible and statutory interpleader wont a. Much easier to obtain 2. SMJ i. Only one claimant needs to be from another state than one other claimant ii. and the people seeking the property claimants 5. Must satisfy 3 rings ii.4. The presence debate from burnam is still a problem iii. Only minimal diversity required 1. Holder of property called the stakeholder. Commonality 10 . PJ i. Can be served anywhere in US and that will establish PJ 1. 3 rings relaxed a. Prerequisites CANT a. Statutory interpleader §1335 1. Brought by a class of representatives on behalf of a whole class of similarly situated individuals 2. Nationwide service of process ii. Amount in controversy lowered to $500 3. Class Actions rule 23 1. Diversity cases where all of the claimants are from the same state iii. Fed court jurisdiction extends to the nation’s borders instead of state borders b.
The class has to be too numerous for practicable joinder. Money damages . First 1000 sue and recover but then all the money run outs so other 19000 get nothing b. Numerosity i. No magic number but 30 probably isn’t enough where 100 probably is d. or not to do something to the class as a whole 1. Adequacy i. Equitable relief. The named reps have to have claims or defenses that are typical of the class as a whole 3. Ex – discrimination suits – company has to stop discriminating against all female employees. Risk of inconsistent decisions. Injunction or declaratory judgment/equitable relief i. or impairment of interests ii. When class is seeking the D to do. not money damages ii.000 claimants. Questions of law and fact concerning the class have to be common issues among all class members b. Even when prerequisites met. must fall under of three types of class action a.requires i. Class representatives have to fairly and adequately represent the interests of each of the class members and have legal counsel who can competently and professionally handle the class c. Typicality i. most just some c. Ex – 20. incompatible standards of conduct. Prejudice i. A common question predominates the action 11 .i.
Publication in newspaper b. Prejudice and Injunction or declaratory judgment i. If they don’t opt out. Any member of the class is diverse from the D AND ii. Important for these members to receive special individual notice so they can opt out 2. are bound by the class action judgment 5. A class action is deemed to be a superior method to other joinder methods 4. Diversity exits if i. Three rings a. Ex – securities fraud ii. Amount in controversy is over $5 million in the aggregate Discovery 1. Individually. Judge must approve any settlement of a class action lawsuit to make sure that attorney’s didn’t sell out just to collect their fees 6. More strict b/c only these members can opt out and sue on their own 1. by mail. Settlement a. Pretrial conference Rule 16 a. or by notification ii. Notice requirements to class members a. Must be satisfied just like any other action b. Special diversity amendment.1. Timing 12 . Held several times throughout the lawsuit to ID the issue for trial and avoid wasting time during the trial on trivial or irrelevant issues b. Money damages i.
Normal witnesses and trial exhibits a. Rule 26f i. Court issues a :pretrial order” that serves a controlling road map for what is about to happen at trial 2. Computation of damages 4. Final pretrial conference 1. 120 days after complaint is served 3. 1st conference should be held as soon as practical but either 1. Identity of persons with knowledge of facts 2. At least 90 days before trial or within 30 days after disclosure of experts by one side 2. At or within 14 days after the rule 26f initial meeting iii. At least 21 days before the rule 16 conference b. The initial meeting between the parties ii. Mandatory Discovery Rule 26 a. 90 days after D first appears or 2. Any insurance that supports their claim or defense ii. Disclosure of witnesses 1. Each party required to provide certain initial disclosures i. Whichever comes first ii. Timing 1. Relevant documents 3. expert a. Initial disclosures 1.i. At least 30 days before trial 13 . Timing 1.
30-32 a. Limited to submitting 25 c. Anytime after rule 26f meeting ii. Opposing party has 14 days to object to testimony or exhibits 3. When should notice of the depo be provided e. Uses i. Cheap but usually crafted by opposing attorney who does not give up much info 5. Interrogatories rule 33 a. Depositions Rules 27. Witness is dead or far away c.3. records. Who can be deposed and what materials are accessible f. Admission requests not answered on time by the other party are deemed admitted 6. Allows one party to view the other party’s documents. Written admissions or denials by a party of various assertions made by the other party b. etc b. Requests for production of documents rule 34 a. Used to narrow down what issues actually have to be proved c. Requests for admissions rule 36 a. When should it be scheduled? i. Useful for discovering the foundations of their claims or defenses early on 14 . computer tapes. Should do it later in the process after interrogatories taken and documents produced (more info to ask deponent) d. Definition – formal oral question and answer session of parties or witnesses conducted under oath with a court reporter writing down all that is said for use in developing the case and for possible use at trial b. Written question to which the other party must respond to in writing b. Impeach a witness (changing their story) ii. What is the efficacy of a depo 4.
mental impressions. Very broad – anything relevant to the claim or defense of any party provided that it is reasonably calculated to lead to the discovery of admissible evidence b. Limitations i. attorney’s opinions.7. Cannot disclose any info. oppress. Have to show that the other party’s mental or physical condition has been put in controversy and there is good cause for taking the requested exam b. or torts ii. Attorney-client privilege i. fraud. Privileged material 1. Does not need to be admissible to be discoverable c. unless it pertains to future or ongoing crimes. 9. embarrass. Written mental impressions of an attorney regarding the case a. The scope of discovery rule 26b a. Request for physical and mental examination of persons rule 35 a. or cause undue burden or expense on a party. Witness statements. legal strategies iii. Protective order 1. E-discovery 10. Protects communications between attorney and client from the beginning of the relationship to beyond the end of representation ii. husbands cant testify against wives b. Attorney work product 1. Has to be approved by judge (only discovery request needing judge approval) 8. Enforcement of discovery provisions rule 37 15 . Sacred and solemn confidential communications a. Protects information that may annoy.
obtain a dismissal or render judgment against the violating party b. The exclusive provision for handling violations i. 12b6 is only based on whether there is a legal issue that can be redressed assuming the allegations in the complaint are true 2. disallow evidence. Rule 11 no longer applies Summary Judgment rule 56 1. SJ is based on admissible evidence from depos. SJ – where a trial is not necessary b/c only legal issues are in dispute and so the judge can deice it as a matter of law i.a. No trial b/c both sides agree on the facts. Courts can impose ADR but usually it is contracted by parties 2. just not the law Alternative Dispute Resolution 1. hearing transcripts etc ii. Any disputed facts will cause SJ to fail 1. Works best when parties have an ongoing relationship they would like to maintain c. Sanctions can include attorney’s fees. When both parties think the issue can be decided as a matter of law for them a. Mediation a. Cannot be a genuine issue of material fact ii. and in the most serious cases. First SJ motion is just a motion for SJ b. Second motion by other party is a cross-motion for SJ c. How they are different i. Credibility of witnesses is for a jury to decide b. Mediatory acts as a facilitator to help the parties negotiate a settlement b. Mediator does not succeed unless the parties reach an agreement 16 . Rule 56 v rule 12b6 a. affidavits. strike portions form the pleadings.
i. If motion is granted and then case reversed on appeal. case has to be very one sided i. Judges don’t like to short circuit the process iii. Arbitration a. Only an offer. Timing i. Judgment as a matter of law “directed verdict” rule 50a a. Motion by D for judge to rule in favor of his client b. After D’s case. Offers the benefit of avoiding the whims of a jury Taking the case away from the jury rule 50 1. After P’s case in chief and before D brings any witnesses ii. Amount of proof to deny motion – “substantial evidence” – some evidence that jury could find for the other side d. Motion asserts that a jury should not be allowed to render a verdict b/c based on the evidence. Parties do not agree to an outcome. Policy against i. but only to give the power to come to that outcome to the arbitrator c. Successful mediation ends in a resolution by the parties consent 3. Arbitrator acts as a quasi-judge over the dispute b. there would have to be another trial b/c there is no verdict from the jury 17 . both parties may move c. Appeal standard i. To be granted. Offers a binding resolution to the issue i. the resolution is only binding if agreed to ii. they could only come out one way ii. De novo e. Judges want to show appreciation for the jury’s time effort and patience ii.
Amount of proof – against the great weight of evidence i. Different in their timing 1. Within 10 days after verdict b. there must be a 50a motion at the end of D’s case in order for there to be a 50b e. Usually granted when some part of the trial was tainted 1. Not asking for a verdict. Losing party failed to produce substantial evidence 1.01% c. Less radical than judgment as a matter of law b. SJ – after discovery but before trial 3. Motion for a new trial rule 59 a. Substantial = > .appellate court looks only at the legal findings 3. Incorrect jury instructions 2. bribe or threat of a judge c. De novo . Amount of proof i. 12b6 early on – after complaint is filed 2. Between 0 and 50 percent 18 . granted if the judge think the jury got it wrong d. appeal standard i.f. Comparison to SJ and 12b6 i. 50a – in the middle of trial or close to the end of trial 2. Motion brought after the jury’s verdict i. critical new evidence not available at trial 3. only to restart the process i. Renewed motion for judgment as a matter of law – JNOV – rule 50b a. Similar in that they attack the opponents case as being deficient ii.
d. Must be brought within 10 days after verdict The appeals process 1. Factual decisions i. Bench trial 1. Tests i. Lack of evidence c. Bars party from bringing a cause of action that has already been decided on its merits (or should have been raised – compulsory counterclaim) b. origin. Legal decisions i. Ask whether the cases form a convenient trial unit and whether the cases treatment as a unit confirms to the parties expectations 19 . De novo for both bench and jury trials b. Claim preclusion “res judica” a. Looks at time. space. Abuse of discretion 1. Abuse of discretion for both bench and jury Former Adjudication 1. Clearly erroneous ii. Reasoning – don’t want to allow people to bring the same cause of action over and over again c. Discretionary rules i. jury trial 1. Transactional test (broad) (majority of courts use) 1. and motivation of the key set of events 2. Appeal standard i. Judge allowed some discretion and got it very wrong e. Standards of review a.
3. The party against whom the issue is used was a party to the first lawsuit 20 . He sues for personal injuries and wins iii. instead of what claims that were. If recovery based on different legal theories. I run over Galves in my car causing him personal injury and property damage to his lunch pail ii. Issue preclusion a. Much narrower than claim preclusion b/c it applies only to discrete issues actually litigated. Looks at whether each claim uses the same evidence. Primary rights test (narrow) 1. claim would be precluded because it arose out of the same transaction or occurrence (me running him over) 2. 2. He sues again for property damage to his lunch pail 1. Issue must have been essential to the 1st lawsuit iii. has the same facts to prove. and includes the same legal elements to prove. Under Primary rights test. “same transaction/occurrence” ii. Prohibits the re-litigation of factual or legal issues that were previously adjudicated in a previous lawsuit i. may not be precluded d. Issue had to have been actually litigated and essential to the judgment in the prior action in order to be precluded in a later lawsuit b. Issue to be precluded must be identical to the issue litigated in 1st lawsuit ii. Key elements i. Issue must have been a final judgment on the merits iv. Illustration i. claim would not be precluded because the elements of property damage and personal injury are different 2. or could have been decided in a previous suit c. Under transactional test.
Used when a D wins in the original lawsuit and the same P tries to find a different D to sue ii. US Constitution – 14th amendment. Defensive issue preclusion i. Judges are reluctant to allow e. This encourages Ps to join as many Ds as possible in the first suit a. Judges usually allow 1. Appropriate notice must be given 3. When a new P wants to use the D’s previous loss to a successful P in the first action in order to prevail against D in a second action ii. That second new D can use the original D’s victory to estop P’s current action on a certain issue iii. Judge will look at the difficulty of joining a new P to the original lawsuit and to what degree the second suit would create inconsistent judgments 1. Promotes judicial economy Personal Jurisdiction 1. Issue must have had a full and fair opportunity to be heard in the first lawsuit d.v. In personam 21 . Limitations on a court’s personal jurisdiction arises from two sources a. State statute – long arm statute b. Offensive issue preclusion i. Three types of personal jurisdiction a. Due process 1. 5th amendment i. Must have contacts that are fair and reasonable 2. Definition: the power of the court over the defendant and the courts ability to enter a valid binding judgment on the parties 2.
The state of incorporation 2. In rem d. but the lawsuit is not a dispute over the property. the property is used to get jurisdiction. Traditional Test – Pennoyer v Neff a. For corporations domicile may be 1. Not about the property. Domicile i. Quasi in rem i.Minimum contacts is a vessel to get to fairness 22 . Defendant’s permanent fixed home is in the state and has a subjective intent to remain there for the indefinite future ii. such that the D’s assets may be seized to satisfy any judgment against him/her b. where the property is the subject of the lawsuit c. Power over a thing.i. more like a vessel to get the property 4. Consent i. Voluntarily submit to the court’s jurisdiction Modern Test – Minimum Contacts – due process 14th amendment “fair play and substantial justice” –must satisfy both Minimum contacts and Fairness 5. International Shoe . Presence i. The thing is owned by the defendant in the forum state. Served while physically present within the state b. Quasi in rem e. In rem i. located in the forum state which is owned by the defendant. The state of principle place of business c. Power over the defendants person.
Franchise contract with out of state Co. 23 . Ds voluntarily made long term contract (20 years) with P in Florida. In personam absorbed into minimum contacts 6.a. Purposeful availment – “to the privilege of conducting activities within the forum state. collected money from resident in the state. World Wide – not foreseeable – General foreseeability that Ds car may make it to another state not enough. Foreseeable .D purposefully had business in the state even though they operated from another state. Minimum Contacts Specific Jurisdiction . D benefited from state’s laws. Voluntary . Must be foreseeable to be brought to court there. Mcgee – voluntary . Cases 1.relatedness between Ds contacts and the subject of the lawsuit. Voluntarily and knowingly connect with state ii. thus invoking the benefits and protections of its law” i. Mailed contracts and collected premiums. Hanson v Denckla – not voluntary . Shaffer – In rem and quasi in rem absorbed into minimum contacts 7. created jurisdiction. had no offices. 3. Foreseeable to get sued in the state iii. No purposeful availment a. Purposeful availment 2.Contract not a one shot deal but a negotiated agreement intended to last a long time. Only did minimal trust admin while in new state. Burger King – voluntary and foreseeable . The causes of action arises from the in-state activity a.Ps Unilateral action brought D business into the state.Benefitted from a Fl corp’s resources. World-Wide – P made unilateral move by taking car to other state where D did no business. P created trust in one state then years later moved to another. D did no business there. 4. no advertising.
product specialization. Contracts with others from foreign jurisdictions to sell – grounds for PJ 2. Purchases. a. Ds president.While no mining properties in Ohio. had 2 company bank accounts. providing advice w/in forum state) c. D does business over the internet. Training sessions too brief 10. who was in Ohio. and received money from Texan bank.Pavlovich i. Knowledge alone of where harm will occur is insufficient to find jurisdiction ii. Asahi . directors meetings held) – General jurisdiction found 9.frequency of Ds contacts with the forum. D only posts information that is accessible to users from foreign jurisdictions – not grounds for PJ iii. 8. Stream of commerce . D operates an interactive website where users can exchange info with a host computer – PJ depends on level of activity and commercial nature 3. held business meetings.To get support of all justices must satisfy awareness plus other considerations (marketing.b. even at regular intervals not substantial enough b. sent pilots to train in Texas. 4-4 split . Effects test – Intentional torts . Burnam – Minimum contacts apply to presence through service? 24 . Helicopteros – Not enough substantial contacts – Foreign company bought helicopters from Texas. Sliding scale analysis for internet sites 1. directed many of its companies activities from Ohio (cut salary checks.is awareness that product will enter stream of commerce enough? ii. Unrelated claim can be brought against D with general jurisdiction. Ds knowledge that his software may have harmed a certain industry in Ca not sufficient enough to find PJ General Jurisdiction – systematic & continuous .Where a company puts its product into the stream of commerce such that it is foreseeable that the product will end up in the forum state through the direct marketing chain i. Perkins – Substantial contacts .
Convenience i. Argue for minimum contacts to get all 8 i. Pavlovich – P had at least 2 other forums in which to pursue their lawsuit ii. used CA roads. Of the forum to D ii. Fairness/Reasonableness – Once minimum contacts are found. Burger King – Florida forum was not gravely difficult and inconvenient because D had been to Florida before iii. Asahi – CA did not have an interest in the case because it was between 2 foreign corps c. Ps interest in obtaining convenient and effective relief 1. D served in Ca when he was there for only 3 days on business and to see his kids b. Heavy burden on D to litigate overseas. b. Asahi – More convenient to be brought in Taiwan where the 2 parties are from. PJ found c. Burnam subjected himself to benefits of CA (emergency services. Forum states interest i. 4-4 split – presence automatically creates PJ (scalia) vs minimum contacts test (brennan) d. Interstate judicial system’s interest in obtaining the most efficient resolution of controversies iii. kids in CA) 11. Shared interests of the state’s in furthering fundamental substantive social policies 25 . Mcgee – CA had a strong interest to protect its citizens from out of state companies ii.a. these other considerations can either raise or lower the bar of required “minimum contacts” for “fair play and substantial justice” a. Other considerations i.
Direct Attack / Special Appearance i. defendant has consented to personal jurisdiction and may not contest it later 26 . Benefit: no need to go in to litigate the original claim 2. Forum selection clause for a particular forum ii. Other ways to get Personal Jurisdiction a. Efficiency 3. Downfall: if the original claim is found to be with valid personal jurisdiction. the defendant appears in court for the sole purpose of litigating the issue of personal jurisdiction ii. If the clause itself lacks fundamental fairness due to a bad faith choice of forum to discourage litigation a.Carnival i. If defendant appears but does not contest personal jurisdiction in a special appearance. Waiver i. then there is no way to challenge the merits of that claim b. Predictability 2. In a special appearance. Strategy 1. Exceptions 1. Exception 1. If D does not raise a 12(b)(2) in the first responsible pleading. In a collateral attack. Collateral Attack i. The judge will enter a default judgment pursuant to Rule 55 ii. D waives right to challenge PJ 13. In hand service i. Cost saving b. Carnival had forum where their principal place of business was and where many cruises depart and return iii.12. the defendant just does not show up to court to litigate the claim and files no answer to the complaint. Consent . Pros 1. Attacking Personal Jurisdiction a. Fraud – tricking someone to enter jurisdiction then serving them c.
S. This exception closes a gap in the law when a D is a nonresident of the US and has contacts with the US sufficient for PJ under the 5th Amendment Due Process clause. 4a requirements of a summons i. incorporates the local state long arm statute as a constraint on federal court jurisdiction (B) Who is a party joined under Rule 14 or 19 and is served within a judicial district of the U. Name of the parties and court ii. Rule 4(k) – Jurisdiction in Federal Court . Negatives: harder to make the inconvenience argument if you actually appear Long Arm Statute 1. and not more than 100 miles from where the summons was issued. Reasonable time to make an appearance Statutory/rule requirement – Rule 4 3. Notice a. State name and address of Ps atty – or if unrepresented – of the P iv.due process 1.Serving a summons or filing a waiver of service establishes PJ over a D (A) Who is subject to the jurisdiction of a court of general jurisdiction in the state where the district is located i.Federal Long Arm Statute 2. Be directed to the defendant iii. or (C) When authorized by a federal statute 3. Strategy 1. you can still argue the case on the merits 2. Opportunity to be heard a. Positives: if you lose your 12(b)(2). Process/Summons 4a a. AND (B) Exercising jurisdiction is consistent with the US Constitution and laws i. Essentially. but has insufficient contacts with any single state to support jurisdiction under state long arm legislation Notice and Service of Process Notice Requirements Constitutional requirement . serving a summons or filing a waiver of service establishes PJ over D if (A) The D is not subject to jurisdiction in any state's courts of general jurisdiction. Mullane – Trust company must use the best practical means to notify their beneficiaries of a suit. State time within which D must appear and defend 27 . 4(k)(2) – For a claim that arises under federal law. 4(k)(1) . Reasonable method of giving actual notice b. Those whose addresses are known or are easily obtained should be notified by mail where those who cannot be reasonably found can be notified by publication 2.iii.
by a marshal or someone specially appointed by the court e. Addressed to a. Failure to comply with one of these results in a 12b4 – insufficiency of process 4. D only waives objections to 12b4 and 12b5 iii. Failure to waive 1. D has 30 days after request sent to return waiver if in US (60 if outside US) a. Proof of service not required f. Who can serve i. Individual D or b. Must be served within 120 days after complaint filed 28 . Corp. an officer. not incompetent. Notice and request of service requires 1. Court name where complaint filed 4. Must be in writing 2. Time limit for service 4m i. Who can waive 1. Defendant has a duty to avoid unnecessary costs of service and waive service ii. Individual in a foreign country 3.v. Bear the court’s seal b. For Corps. Failure to comply will bring about a 12b5 – insufficiency of service of process (what you did or did not do with the summons) d. Will incur later expenses of service b. partnership or association iv. Inform D of consequences of waiving and not waiving service 6. If D within the US fails to waive without good cause a. Date request sent 7. Over 18. Summons with a copy of the complaint c. Individual within a judicial district of US 2. 90 days outside vii. Results of filing a waiver 1. a managing or general agent. If requested. or any other agent authorized to receive service 3. Expenses (atty fees) related to collecting service expenses vi. 60 days in US 2. and prepaid means for returning form 5. Notify D that a failure to appear and defend will result in a default judgment against D for the relief demanded in the complaint vi. Signed by the clerk AND vii. Include copy of complaint. two copies of a waiver form. and a non party ii. Must be by first class mail or other reliable means v. Time to answer after a waiver 1. Kept separate from personal jurisdiction – D can still challenge PJ and Venue if served b. Service a. Waiving service 4d i.
mail a copy to the D ii. State law where person is served 2. i. k. General a. Personal delivery b. Doesn’t apply to foreign Ds Proof of service 4l i. By any internationally agreed means of service that is reasonably calculated to give notice ii. By other means not prohibited by international agreement. Serve D personally OR b. Court can extend time for service if there is good cause 1. Follow the service requirements of the country in which service is made 2. Foreign D: 1. Deliver a copy to an officer or managing agent and if so required by statute. 1. Foreign 1.S. United States 29 . In the U. Unless service waived. Substituted service i. & its Agencies/Corporations/Officers/Employees 4(i) i. Any means for serving a foreign individual. a method that is reasonably calculated to give notice 1. Any other means not prohibited by international agreements. 1. proof of service required in the form of server’s affidavit Serving an Individual in the US 4e i.S. As the foreign country directs in response to a letter of request 3. As the foreign country directs in response to a letter of request 3. as the court orders Serving a Minor/Incompetent Person 4(g) i. except personal delivery Serving the U. Follow the service requirements of the state in which service is made ii. Or else dismissed by court or by 12b5 ii.g. h. As prescribed by the foreign country’s law for service 2. l. Follow the service requirements of the state in which the federal court is located or where service is made OR 2. If there is no internationally agreed means. Deliver to authorized agent Serving an Individual in a Foreign Country 4(f) i. Unless prohibited by the foreign country’s law: a. as the court orders Serving a Corporation/Partnership/Association 4(h) i. Leave a copy at Ds dwelling with someone of suitable age and discretion who lives there OR ii. State law where court is located 3. Service laws to apply 1. j. Using a form of mail that requires a signed receipt iii.
Served with process c. (2) Where substantial part of the events or omissions occurred or substantial part of property that is the subject of the action iii. Same as (1) and (2) above ii. Officer/Employee Sued Individually 1. Federal courts call districts. Although PJ still needs to be found. Only for the district where PJ is found (unlike PJ analysis for A3 or B3) d. May be sued in any district 1. Residence is where PJ can be found 1. Serve the employee as an individual. if PJ found there. Deliver a copy to CEO. state courts called counties 3. Send a copy by registered mail to the agency. In CA. corporation or officer/employee iii. Acts as a further localizing instrument 4. Corporation or Officer/Employee Sued in Official Capacity 1. Cases beginning in state court and removed to fed court are not subject to fed venue requirements 30 . Must be served in accordance with USC 1608 n. 1391 – Only in federal court and to actions that originally brought in fed court a. where any D is subject to PJ when action commenced 1. so most likely available venue will be where incident occurred 5. (D) Aliens i. if all Ds reside in the same state ii. Serving a Foreign/State/Local Government 4(j) i. or ii. then all 4 districts proper b. where D can be found 1. (C) Corporations i. or incompetent person m. (3) If no 1 or 2. AND 2. AND 2. foreign individual. Must serve the US. (B) Jurisdiction not founded on diversity i.1. Statutory law that dictates which area within the state is proper 2. (3) if no 1 or 2. State Venue Statutes a. (1) Districts where D resides. (A) When jurisdiction is founded on diversity venue can only be brought in i. Follow state’s law for service on such a D Venue 1. Must serve the US. Agency. Send a copy by registered mail to the US Attorney General in WA DC ii. Removal i. State or Local Government i. Deliver a copy to the US Attorney for the district where the action is brought OR send a copy by registered mail to the civil process clerk at the US attorney’s office 2. Foreign State 1.
or application of foreign law 31 . P wanted to sue in US because higher damages ii. or representative v. one state court to another state court b. P resides vi. D resides – most common iii. Familiarity with applicable law 4. Cost of witness to attend trial 4. Court can grant FNC without first deciding if it has SMJ or PJ e. Ability to view place where facts occurred 5. Foreign country. D has to ask for transfer of venue c. Court too congested 2. Where D is doing business iv. When jurisdiction and venue are proper. Transfers to another sovereign court system 1. judge can use discretion to decline to exercise jurisdiction because the forum is very inconvenient i. Practical considerations such as costs.1. Judge will usually require D to waive SOL. Local interest in adjudicating local case 3. P does business 6. Avoiding problems in conflicts of law. Ease of access to evidence 2. venue is appropriate in the district encompassing the state court b. Where D has an office. D attempted to FNC to mexico where damages were capped iii. Legal fees would cost more than the maximum recovery in Mexico iv. Can only be moved to a venue that is proper i. logistics ii. Public factors 1. Private 1. Factors considered i. federal court to state court. PJ and venue defenses d. Must meet basic due process f. cause of action or part of it occurred ii. Witnesses ability to appear 3. Economic viability of lawsuit in other court not considered i. possible venue rules i. agent. Forum Non Conveniens a. Court held it would not say Mexico is an inadequate forum because it did not make economic sense to sue in Mexico g.
consent or stipulation of the parties. in the discretion of the court to any other division in the same district 1. Federal transfer statutes a. Can be raised by P or D iii. Apply the law (or conflict of law) where the case was transferred from c. suit or proceeding…may be transferred. 1404 i. Unfair burden jury 7. upon motion. Transfer from a proper district court to a proper district court ii. Constitutional i. Reasons for transfer 1. apply public and private factors from FNC vi. judge has more discretion than in a FNC v. A result of the fear of too much federal power 32 . Article III 1. Source a. The action shall proceed as if it had been filed in the court to which it is transferred Subject Matter Jurisdiction 1. 1406 i. From district where jurisdiction is lack to proper venue ii. Created SC but left option of lower Fed courts to legislature a. any action.5. 1631 i. Convenience of parties and witnesses iv. From district in which venue is improper to a proper district court venue d. Always must transfer to a proper court b.
the Constitution. However. SEC act of 1934 vii. Antitrust vi. 1332. and Article III i. Concurrent jurisdiction i. statutes giving jurisdiction and case law interpreting both) ii. Well pleaded complaint i. Admiralty and maritime v. Actions “arising under” Constitution. Article III much more broad 1. Bankruptcy ii. Patent and copyright iii. and US treaties c. Exclusive jurisdiction for Fed 2. Limits lower Fed court’s jurisdictions to those named in the section a. Claim has to arise under a statute. P must begin complaint with a short and plain statement of the grounds for the court’s jurisdiction (court will look to the Constitution.2. Actions against foreign consuls iv. Can be in the Ps complaint or Ds answer 33 . or a treaty of the US d. Difference between 1331. Exclusive jurisdiction under article III i. 1332 diversity ii. When US is a party 1. Concurrent jurisdiction w/ state court – 1331 fed Q. federal statutes. congress must authorize to assume jurisdiction b. Sovereign immunity prevents US from being sued without its consent b. Federal Question a. Statutory i. Encompasses all federal issues arising under federal law 2.
12B1 – Lack of SMJ (attack the claim) 1. SMJ cannot be waived 1. Louisville and Nashville railroad v motley a. Courts take state law claims that have important federal law interests and make them federal questions f. Thinks new federal statute will make free railroad pass illegal c. If dismissed. Federal issue must be addressed in Ps well pleaded complaint a. Collateral attack by defaulting 1. P seeking specific performance on breach of contract claim b. No federal claim. Challenging SMJ i. Not federal question because the Federal Q was a defense by D d. therefore no federal jurisdiction 2. Cannot be an issue that P thinks D will use in their answer 3. leaving state court open iv. Federalizing cases i. Good to decide if there is a Fed Q first so that money and time is not wasted litigating waiting for a fed Q to arise 2. P can refile suit in state court because the judgment establishes only the lack of federal jurisdiction. Courts split iii. SC would be able to hear Mottley because fits under the Art. 12B6 – failure to state a claim arising under federal law (attack the jurisdiction) 34 . III def of arising under e.ii. 1331 and 1332 much more narrow 1. Broader interpretation of arising under ii. It is so fundamental that court can raise SMJ issue on their own Sua Sponte ii.
former adjudication precludes P form refilling in state court in the same state because court’s decision that PJ is lacking will bind the state court 3. Diversity Jurisdiction 1332 a. Diversity determined at the filing of the action ii. No longer serves a vital function b/c there is not much state prejudice anymore b.1. Any P cannot have the same domicile of any D c. Timing i. §1359 – no jurisdiction when a person has collusively or improperly been made a party or joined in order to invoke federal jurisdiction 1. 2 requirements i. 20-25% of federal case load and fed courts already back up 2. No jurisdiction because no claim arising under federal law 2. Reasons for diversity i. Complete vs minimal diversity i. To allow cases that have nation scope and implication to be heard in a notional court iii. Original jurisdiction between. Minimal diversity allowed under article III 1. To provide a neutral forum for citizens of different states ii. Cant assign a claim to someone else to create diversity d. 12B2 – PJ 1. P only has to be diverse from 1 D ii. If any arguable basis for a federal claim. grant this over 12B1 v. AND 35 . Complete under 1332 1. Arguments for abolishing diversity 1. If dismissed.
someone waits a year to file. Interest included if it is pertaining to a loan i. In order to reject Ps good faith estimate it must be a “legal certainty” that P cannot recover more than 75k 36 . Discriminating against the poor? i. Foreign state as P and a citizen of a state or of different states ii. poor people can have large claims too 3. Timing a. Purpose a.1.000 (75. Mexico) 3. and then wants interest accrued over that year 2. Citizens of different states (CA v NV) 2. Citizens of a state and citizens or subjects of a foreign state (51st mythical state – all seen as the same) (CA v. Must be a good faith estimate by P that it is over 75k a. To keep smaller diversity cases out of federal court b. Interest not included when there is a breach. Valuing nonmonetary claims a. Costs do not include attorney’s fees but to include expert witnesses. equitable relief estimated either from P’s point of view or D’s point of view b. Citizens of different states and in which citizens or subjects of a foreign state are additional parties (CA and Mex v NV and Canada) a.000. Usually from P’s point of view 5. Minority say no diversity because 51st st v 51st state 4. copying fees b. Amount in controversy EXCEEDS $75. filing fees. Injunctions. Computed on the date of the filing of the action 4. Amount is exclusive of costs and interest a.01) 1. No.
Single P i. Permissive 1. If Ps claim over 75k. Aggregating claims a. Can aggregate all claims against multiple Ds IF they are jointly liable 1.b. Multiple Ps i. If ultimate recovery is less than 75k. 30k claim + 60k claim = 90k OK ii. Narrowly construed – usually for joint owners of property b. Compulsory 1. Can aggregate claims against D only if they have a common undivided interest 1. counterclaim of any amount will be heard ii. Court may deny P’s costs or make P pay for D’s costs (attorney’s fees not included) 6. Joint owners of land c. P1 30k and P2 80k P2 OK P1 nope ii. If Ps claim over 75k Ds counterclaim must be over 75k 37 . cannot aggregate separate and distinct claims against D 1. Claims of class members aggregated and must exceed $5 million even if no one claim is over 75k d. can aggregate all related or unrelated claims against a D 1. Counterclaims i. court does not lose jurisdiction. Class action i.
courts split on whether counterclaim can aggregate to meet amount in controversy e. Corporations have two domiciles a. Domicile is your last previous domicile until it is affirmatively changed 1. Principle place of business c. State incorporated in b. If not over 75k. State where the insured is a citizen (if insurance co is not a direct party) iv. Brain test – HQs ii. Corporations/insurers 1. US citizens domiciled abroad cannot sue in fed court ii. State incorporated in b. Insurers have potentially 3 domiciles a. Muscle – where manufacturing goes on and where most employees are iii. Nerve – Where the most contact with the public 2. Principle place of business i. Ex – someone previously domiciled in CA traveling around Europe in a van (no new established domicile) is still domiciled in CA iii. Citizenship is determined by residence plus subjective intent to remain for the indefinite future i. Where decedent was a citizen 2. District of Columbia Puerto Rico. Legal representatives of 1. and US territories are included as States f. Infant or incompetent 38 .2. estate of a decedent a.
or partnerships 1. Perm resident alien v alien not allowed for diversity 2. Class action 1. Permanent resident alien v any alien 2. Have no single domicile 2. Meant to limit/contract diversity b. Allowed PRA v alien and US citizen h. Must consider the domicile of every member in the group vi. Where there is no diversity 1. § 1359 39 . considered a citizen in the state in which he/she is domiciled AND ii. Unconstitutional b/c not a power granted under article III or 1332 3. Minority view – Singh 1. Associations. Permanent resident alien from CA v CA citizen v. Citizen of state of infant or incompetent v. unions. No need for a neutral forum because both parties living in the same state iv. An alien (51st state) iii.a. Excepted even if over 75k and from different states vii. Permanent resident alien – 2 domiciles i. Only citizenship of the class representatives used g. Sadeh 1. Amendment only created to destroy diversity between PRM on a state and a citizen of the same state a. Matters regarding divorce and wills 1.
To promote judicial economy and consistency of decision i. Claim raises a novel or complex issue of state law 1. and the state claim or party destroys diversity i. No previous law 2. C. 20. Would ordinarily be tried as one case b. Broadens federal jurisdiction to cover actions that would normally not be able to be brought in federal court 3. Claims by persons seeking to intervene as Ps under rule 24 c. Removes obstacles to have all related controversies decided in one proceeding 4. Claims by persons proposed to be joined as Ps under rule 19 iii. The means to support SMJ for additional claims to diversity or federal question claims in Federal court 2. Purpose a. Claims by P against parties joined under 14. or 34 ii. 19. Include joinder or intervention of additional parties i. The state claim predominates over fed claim 40 . New area that should be left to be developed by state court ii. But apparently it is ok to do this to destroy diversity Supplemental Jurisdiction 1.Court can decline to exercise supplemental jurisdiction if (broad discretion by judge) i.i. Court will not hear a case where a party has assigned rights or acted collusively to create diversity jurisdiction 1. B – diversity – court will not exercise jurisdiction if based on diversity. A – additional claims must be the “same case or controversy” under article III of the original claim. The statute a. Derived from a common set of facts ii.
then to C c. D – opens a 30 day window of time to file state claim in state court when the claim has been dismissed (either as not arising under same case or controversy of dismissed b/c fed claim dismissed) i. Appeal for a judges’ decision based on 1367C must be under abuse of discretion Removal Jurisdiction 1. How the fed govt effectively protects dederal prerogatives without engendering needless conflict with state judicial systems d. look at B. Start with A b.1. courts sometimes have saving statutes that give P a limited time to refile in state court i. Deference to the rights of states to decide issues involving state law 2. Judges discretionary power a. If no diversity skip to C 6. state SOL runs and fed claim is dismissed and court refuses to exercise jurisdiction over remaining state claim c. Courts will consider the amount of time invested in the case by the court iv. § 1441 – removal generally 41 . If Diversity. Method a. P bring action in fed court with supplemental state claim b. For any other compelling reasons 1. Tail cant wag the dog iii. Time period can be longer if state statute says so 5. SOL a. others look to 1367D 7. The district court has dismissed all claims over which it has original jurisdiction 1.
federal Q. D can removed to Eastern District b. § 1446 – procedure for removal a. C – For a Fed Q. no home state prohibition c. pleadings and ourder served upon D in such action b. diversity. No need to protect D from state discrimination ii.a. if one or more state claims (non removable) are joined. Ex – P files in sacramento county state court. If a fed Q. A – can remove to where P could have originally sued in federal court i. the entire case can be removed or in the judge’s discretion. D cannot remove if D is a citizen of the forum state (home state prohibition) 1. Unconstitutional? 1. If a diversity claim. the claims which state law predominates will be remanded i. Short and plain statement pursuant to rule 11(signature) of the grounds for removal. B i. all Ds must remove together) i. Concurrent jurisdiction ii. For diversity cases. together with a copy of all process. If the claim arises out of the “same case or controversy” then it is covered by supplemental jurisdiction 1367 ii. Must remove to the district court in which the fed court lies 1. Not a power granted by article III (3 categories. A – D must (if multiple Ds. Unnecessary? 1. B – Notice of removal must be filed within 30 days of D being served OR 30 after the case has become removable i. or same case or controversy) 2. cannot remove 1 year after the filing of the suit 42 . File removal in appropriate district court 1.
ONLY APPLY ERIE IN DIVERSITY ACTIONS IN FEDERAL COURT a. in CA state court. Some basics a. D can remove over the next 10 days but cannot afterwards ii.1. Always apply the procedural law of the forum i. Fed Q in fed court – apply fed substantive law c. and efficiency b. unless final judgment has been entered i. Remanding and attorney’s fees i. If multiple Ds – courts split on whether 30 days from service of first D or 30 days from service of the particular D who seeks removal 3. court has the discretion to award attorney’s fees to the party seeking the remand (party who incorrectly sought removal must pay) Erie Doctrine – choice of law 1. § 1447 – procedure after removal a. finality. fed procedural law b. Ex – case becomes removable 11 months and 20 days after filing a. Remand is required whenever the court determines that removal was improper. Can also be applied for supplemental state claims under a federal question in federal court 3. the motion must be made within 30 days after the notice of removal is filed c. Caterpillar – jurisdictional defect at the time of removal (not complete diversity). in CA fed court. state procedural law ii. the fed court should remand it to the state court. If the case was improperly removed. Defect cured at the time of final judgment (complete diversity). Judges disregarded defect in favor or judicial economy. If the ground for the motion to remand is something other than lack of SMJ (eg a defect in removal procedure). Substantive vs procedural 43 . State claim in state court – apply state substantive law 2. If case is remanded.
Constitution preserves the autonomy of the states. Before Erie a. the conduct of litigation. Rules of decision act §1652 a. and rules of civ pro 4. Said it was unconstitutional ii. the substantive state law where the federal court sits 5. Swift v. Substantive i. Tyson i. as the decisional law in federal diversity cases. legal duties. Did not say that Swift violated any clause but that the Constitution lacked a clause conferring upon congress or the federal courts a power to declare that substantive rules of fed common law apply in a state iii. Laws that have to do with the operation of the courts. Held that “laws” in the rules of decision act did not extend to state judge made case law ii. Conflicts of law are substantive b. Rules enabling act a. SOL is substantive iii.a. and remedies ii. enlarge. Laws that have to do with people’s rights and responsibilities. or modify” any substantive state rights 6. Would be bound by case law only on peculiar local matters but not one more general topics 7. Overruled swift i. and supplanting their law with federal common law is allowed only when detailed in the constitution 44 . Requires that federal courts apply. Procedural i. Erie a. Authorizes the federal judiciary to put into action federal rules of civil procedure provided that those rules do no “abridge.
but only for federal question cases d. Removed citizenship bias – before. Out of state citizen suing in state citizen should not have the benefit of choosing between two laws (state and fed) where a dispute between two in state citizens only have access to state substantive law (if it is not a fed Q) 8. Choosing a federal or state court to get federal or state law to apply if one would produce better law and thus a better result for your client than another court ii. Avoid forum shopping 1. Any law can be construed to be outcome determinative 45 . Avoid the inequitable administration of the law 1. Test i. Justice and applicable law should be applied consistently a. where out of state litigants could chose between state and federal law by deciding to sue in either state or fed court iii. Problem with the test 1. Will application of federal law instead of the state law change the outcome of the case? 2. If so. Overly broad 2. Removes incentive to go to fed court because you will not get a difference in the ultimate outcome of the case 2. Guaranty trust v York i. Effect on forum shopping 1. Must apply the substantive law of the state (state common law as well as state statutes) but still apply procedural law of the forum c. Determining what is substantive and what is procedural a.b. Federal common law still exits. in state litigants were stuck with state statutes. Outcome determinative test (modified test in Byrd is what is used) 1. then the law is substantive ii.
Hanna i. Parties may purposefully miss deadlines so they can argue that the law is outcome determinative b. the interest of preserving the 7th amendment and essential character of federal court to allow juries to decide factual issues c. Test 1. How important the state rule is and how powerful the state policy is with respect to making sure the state rule is followed 2. Rule violates the Rules Enabling Act 46 . Byrd i. Possible if he gives us a new FRCP on the exam b. If state law issue conflicts with a federal law. As opposed to purely decisional 1.3. Test 1. check whether a. Rule is unconstitutional or i. act of congress. No FRCP is ii. apply the federal rule unless a. or a federal rule 2. If it is under the Rules enabling act. Federal interest in applying federal law in this case i. Balance that bound up state interest with the interests of the federal court a. AND a. Ie – not the result of an interpretation of positive law found in the constitution. In Byrd. Are the state laws rights and obligations “bound up” with the state law in question. Modified outcome determinative test ii. The rule was created under the Rules enabling act i.
Federal practice common law 1. If perhaps either. Erie. Apply Erie twin aims and Byrd modified outcome determinative test ii. Is the rule clearly substantive or clearly procedural? i. enlarge. go on c. FRCP 1.i. Federal statute 1. or modify a state substantive right 9. apply state law ii. If substantive. It would have to abridge. go on d. Federal rule governs unless it violates the rules enabling act or the constitution iii. If unavoidable. apply federal law iii. Can the conflict be harmonized by interpreting narrowly or broadly? i. Does Erie apply? i. Byrd 2. If procedural. Hanna 2. Federal rule governs Conflicts of Law 47 . Check the source of federal law i. Erie flowchart a. Only in Federal diversity cases b. Supremacy clause 2. York. Constitution 1. Federal rule govern if it appears that congress meant it to be remotely procedural iv.
Attorney’s cannot argue for other laws to apply d. then so should applying the forum’s substantive laws c. Disadvantages i. Can be the “place of the wrong” lex loci ii. Ease of administration 1. Apply states own law ii. Apply a specific rule that identifies a determinative contact to decide which law should apply 1. Allows complete forum shopping for substantive law 3.1. Horizontal analysis of substantive laws between states or countries c. Klaxon i. Predictability 1. Advantages i. Lex Fori a. Apply the law of the forum b. Can be where domicile is etc 2. Federal court applies the state conflict of law principles of the state where it sits 2. Generally a. Reasoning: meant to do away with forum shopping 48 . Multilateralism i. No dispute over conflict of law provisions iii. Reasoning: If there is personal jurisdiction over D and it is fair. No law manipulation 1. Used to decide which substantive law to apply b.
Discretionary decision making that tailors to the needs of each particular case i. system breaks down if CA applies multilateralism and Minn applies lex fori v. so Italian law should govern Italian affairs b. Predictable iv. If accident happened in CA. P would supposedly get the same substantive law if he filed in CA court or Minn court iii. Means that the situs of the action happens in a state/country and therefore any legal remedy for that wrong is tied to the country from where it emanated 4. We apply Italian law because that is where the tort took place. Advantages 1. Applying foreign law 1. Encourages judges to look beyond domicile or site of the event and consider a broader range of contacts in order to make the choice of law decision 49 . Possible problems a. Not very realistic. Vested rights i. Apply foreign law in order to pay respect to their jurisdiction and sovereignty 1. Can it be applied correctly? 2. Assumes that every state/country applies the same conflict of law principals 2.1. The problem 1. Creates uniform results 2. Support for applying foreign laws a. Unilateralism/most significant relationship a. Comity i.
and is open to manipulation by crafty attorneys 5.1. Harmonization a. Focuses on commonalities rather than on differences b. Looks to see if there is an interstate or international rule on point c. No predictability. Problems i. Similar to establishing min contacts for PJ b. Most unrealistic approach because it expects everyone to “hold hands and be friends” 50 . consistency.
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