More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 1 of 52 PROFESSOR ARONOVSKY – CIV PRO SPRING 2004 Civil Procedure I. Power: SUBJECT MATTER JURISDICTION OF FEDERAL COURTS ...........................................................................................4 1. Federal Question Jurisdiction............................................................................................................................................................4 2. Diversity Jurisdiction..........................................................................................................................................................................5 3. Supplemental Jurisdiction....................................................................................................................................................................6 4. Removal ................................................................................................................................................................................................7 I. Power: PERSONAL JURISDICTION..............................................................................................................................................8 I. Procedural Due Process ..............................................................................................................................................................8 -Notice (Mailbox): ...........................................................................................................................................................................8 • Challenging Jurisdiction: ....................................................................................................................................................8 • Waiving Jurisdiction............................................................................................................................................................8 -History/Policy: ...................................................................................................................................................................................9 • Federalism: ...........................................................................................................................................................................9 • Minimum Contacts ..............................................................................................................................................................9 • Purposeful Availment ..........................................................................................................................................................9 • Regardless of Type...............................................................................................................................................................9 • Passing the Hurdle ...............................................................................................................................................................9 Fair play Factors:............................................................................................................................................................................9 • Consent .................................................................................................................................................................................9 • Constitutional Requirement of Notice................................................................................................................................9 • No More Federalism..........................................................................................................................................................10 II. Substantive Due Process/Power (Long Arms and Shield):........................................................................................................10 -FRCP/Statutory: Rule 4/Summons (analog to state long arm) .......................................................................................................10 -Specific Federal Statutes .............................................................................................................................................................10 Is that Power Okay? (Negative limits of Due Process) ..................................................................................................................11 -Specific v. General .......................................................................................................................................................................11 -Fair Play Factors .........................................................................................................................................................................11 -Purposeful Availment/"Discount Factor".................................................................................................................................12 -Regardless of Type.......................................................................................................................................................................12 PJ CHECKLIST: ..............................................................................................................................................................................13 I. Procedural Due Process/PJ......................................................................................................................................................13 II. Substantive Due Process/PJ ....................................................................................................................................................14 Summary (how to determine if a court has PJ)...........................................................................................................................15 Summary of Cases: ...........................................................................................................................................................................15 III. Power: VENUE (3RD RING IN A 3 RING CIRCUS) .................................................................................................................16 Is this district okay?..........................................................................................................................................................................16 1391(a)-only diversity cases 4/20/2004.............................................................................................................................................16 1391(b)-all other smj cases ...............................................................................................................................................................16 Fundamental diff. between 1391(a)(3) and 1391(b)(3)?..............................................................................................................16 1391(c): corporations ........................................................................................................................................................................16 1391(d): aliens ..............................................................................................................................................................................16 1391(e): employees of US or officers...........................................................................................................................................16 1391(f): against a foreign state....................................................................................................................................................16 • Forum Non Conveniens ..........................................................................................................................................................17 Private Factors:..................................................................................................................................................................................17 --Alternative forum/destination forum necessary for FNC? ...........................................................................................................17 • Transfer....................................................................................................................................................................................17 1404: transfer when venue is proper ..........................................................................................................................................17 • Summary/Difference B/T FNC and Transfer: ........................................................................................................................18 VENUE CHECKLIST: ....................................................................................................................................................................19 A. Venue........................................................................................................................................................................................19 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 2 of 52 B. Transfer Statutes (3): ..............................................................................................................................................................19 C. Forum Non Conveniens ...........................................................................................................................................................20 D. Comparison B/T Transfer and FNC: ..........................................................................................................................................20 • Response/Defendant (Pre-Answer Motion, Answer, Amendments)....................................................................................22 • Answer.....................................................................................................................................................................................22 VI. Complexity: RES JUDICATA.......................................................................................................................................................33 A. Claim Preclusion (CP): .............................................................................................................................................................33 • Standard: ..............................................................................................................................................................................33 III. Complexity: Erie ...........................................................................................................................................................................49 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 3 of 52 Power Dome: I. SMJ (Federal Question, Diversity, Supplemental, Removal) II. PJ (Procedural: Notice, Challenge, Waiver & Substantive: Statutory, How Much?, What Counts?) III. Venue (Venue, Transfer, FNC) Lifecycle of Suit: I. Pleading: (Complaint, Pre Answer Motions, Answer, Amendments, Reply) II. Discovery (Disclosures, Probes, Sanctions) III. Pretrial adjudication (Default, Dismissal, SJ) IV. Post Trial Adjudication (DV, JNOV, NT) Complexity Dome I. Res judicata (CP, IP) II. Joinder (Claims and Parties) III. Class Action IV. Erie More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 4 of 52 I. Power: SUBJECT MATTER JURISDICTION OF FEDERAL COURTS Pj Notice Venue Smj Overview/Model Answer: -“SMJ is about power. The fed govt. is a govt of limited power; judiciary is just one branch of fed govt and therefore, limited powers like the fed. govt. They are only free to hear cases which the FRCP allows for.” Power Source: Constitution: Article III(1): “creates SC and gives congress power to create lower courts Even though they did not have to—it was just the power given “ Article III, (2): “specific list of the types of cases which fed. court has jurisdiction over; “arising under…”(federal question) federal law is the federal question jurisdiction and diversity question “between citizens of different states” (diversity) Statutes: 28 USC 1331 federal question; 1332 diversity; 1441, removal; 1367, supplemental jurisdiction 1. Federal Question Jurisdiction • Federal/Constitutional Rules 1. Article III, Section 2 2. 28 USC 1331: “all civil actions arising under the Constitution” 3. 28 USC 1332: Federal Jurisdiction based on a snapshot in time; time of filing. • Case Law -4/27/2004 Well Pleaded Complaint Rule (Mottley; season pass case) -“Arise Under” Federal Law Rule (Mottley; season pass case) – Holmes test -Statute or constitution based? -Constitution requires minimum diversity only. But, what is the extent of the broad scope of federal diversity jursdiction that the congress has given the courts? The statutory element must be complete for diversity jursdiction. -Saudi Case – what was congress intent? Need rule here. -Artful pleading (Bright; tax man case) (Graham; Indian tribe; immunity was a defense and not federal question)(Rivet; federal bankruptcy; bank did not get away with it) Smith Land case – under Holmes it was a state law case because it dealt with securities issued by a state bank; but claimed that the securities were granted under Federal law and involved a constitutional claim. -Therefore the court ruled that it was important enough a claim to grant federal jurisdiction. Permeating the case with federal questions. -Railroad declaratory relief case; the only coercive lawsuit that would have been brought would have been for money damages; only federal issue might arise as an affirmative defense; can’t use anticipation of a federal issue as grounds for jurisdiction. • Other Ideas: Filter and Check -Filter: is the federal question in the complaint? Is there artful pleading? Look only at the complaint (no defenses); but don’t be stupid Is the federal claim colorable? Is the purported federal claim so far off the charts that it’s just a sham? Collateral attack is different in SMJ; not protecting an individual liberty. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 5 of 52 12(h)(3); any time you can raise SMJ and the case may be dismissed If case is completed can someone attack SMJ? No, not after final judgment. What if SMJ was never challenged? Can it be challenged during enforcment? No, due to finality and preclusion. Courts are split on what happens if there is a default. If you just don’t show up can you later challenge the SMJ? Courts say you can’t take one free pass and get the judgment; others say it can be raised any time. -Check: does cause of action arise out of federal law? Easy: statute, constitution, federal law Hard: state cause of action that interprets a federal law (ie NY statute re: notice that interferes with due process) Citizenship Issues Domicile is where you are live. 2. Diversity Jurisdiction • Federal/Constitutional Rules 1. Article III, Section 2 2. 28 USC 1332: “civil action where the matter in controversy exceeds the sum or value of $75,000…and is b/t citizens of different states…etc.” • Case Law -Citizenship rule Citizenship=Domicile=Residence+Intent to Remain Indefinitely (BOP on P to show diversity, Citizenship at time of filing is controlling) (Gordon v. Steele; ID residence, Penn student) -Complete Diversity Rule (Strawbridge) (Mas v. Perry; “peeping tom” stretching of the complete diversity rule to include permanence) • Other Ideas: Amount in Controversy, Diversity of Corporations, Aggregation Rules 1. Amount in Controversy; $75,000 (St. Paul) (legal certainty of no recovery of amount in controversy as grounds for dismissal) 2. Diversity of Corporations: 1332(c)/dual citizenship: state of incorporation and primary place of business State of Incorporation: Easy Principal place of business: Hard More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 6 of 52 Nerve Center Test: Muscle test: corp’s center of production Mixed test 3. Aggregation Rules: -Aggregate multiple claims (by one P against one D)? Yes -Multiple Ps;? No because they are separate, divisible claims -Common and undivided interest and single title or right claim? yes -Counter claims: different courts do different things with this; look to common practice for precedent What if one has a claim >$75k and the other doesn’t? See §1367 3. Supplemental Jurisdiction • Pre 1367 -Pendent Jurisdiction (claims coming in on other claims) (United Mine Workers v. Gibbs; “scab case”; R: state claim can ride on federal claim if they form parallel; Common nucleus of fact rule; same case or controversy rule; discretionary power of court as well); Constitutional case, not a statutory case. Supreme Court said trial court did not abuse its discretion. The interference with K issue was from the same common nucleus so, it was up to the trial court; it was efficient, fair, convenient to the parties. It also dealt with a federal preemption issue which the federal courts were a good forum to hear. Could have gone the other way as well. Discretionary Factors – Ongoing throughout the case; Court can change its mind in the middle of the case.: -Whether state law claim predominates case? -Whether court must decide sensitive law issues? -Whether the 2 claims might confuse the jury? -Whether federal issue is resolved early in case, leaving only state claim? Positive factors: judicial economy, fairness & convenience to the parties Negative factors Comity – should the feds interfere with development of state law? What if the claim turns out to be only a state claim? What about jury confusion? -Ancillary Jurisdiction (people coming in the litigation) (Owen v. Kroger; construction co. hits guy on head and implead Kroger as contracted operator of crane) R: Ds must have complete diversity with P No independent basis for federal jurisdiction on this single claim. -Finley; “airline powerline case” -SC does not let Ps bring fed./based on FTCA (FAA) and state claim/tort (power line co.) together because they were against different Ds • Post 1367 • Federal/Constitutional Rules: 1. Rule 1367: “in any civil action where district court has original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related….they form part of the same case or controversy” i. 1331 or 1332 for first claim ii. discretionary iii. Codified Gibbs and Kroger, but flipped Finley iv. Article III, Section 2 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 7 of 52 • Other Ideas: Unintended consequences 1. 1367(b) destroys complete diversity for Ps 2. Destroys some aggregation rules in diversity cases (eg P2 with $40,000 claim can ride on P1 with $80,000) This is the in-class hypo on 4/27/2004. Look at the rule. Is it rule 14, 3rd party? No. Rule 19, indispensible 3rd party? No. Rule 20 multiple plaintiff’s? NO. It’s BY someone who brought action under rule 20, not AGAINST someone brought in by rule 20. So, therefore, 1367(b) doesn’t apply and P2 stays in the action under 1367(a). 4. Removal • Federal Rules: a. 1441: “any civil action brought in State court of which the district courts of the United States have original jurisdiction…” b. 1331, 1332 or 1367 as basis for getting it in c. All ’s must consent. • Case Law: -At Court’s Discretion Rule (Huron: “Jewish holiday” case ; no removal allowed) -Federal Court must have SMJ at the time of the filing of notice of removal (Caterpillar) diversity should be complete at the time of removal, however, as long as it is complete at the time of the judgment, the court will let it stand 30 day deadline pertains to removal (has to move within 30 days under §1367(b) of receiving complaint or of something changing in the action) 1 year deadline pertains to the fact that cases can be removed within 1 year of the case starting a district court’s error in failing to remand a case improperly removed is not fatal to the ensuing adjudication if federal jurisdictional requirements are met at the time the judgment is entered this is a case of judicial economy (don’t want to have to start all over again) the catch here is that if we had insisted on diversity jurisdiction from the time of the removal, the removal wouldn’t have been able to happen b/c they would have had to wait for the other lawsuit to finish and therefore the statute of limitations would have run out the fear here is that it would encourage people to try and remove in the hopes that the other party will end up settling out there are two safeguards: o the court can sanction an attorney for bringing a frivolous motion for removal o the case will not be able to proceed to federal court this is a narrowly construed and narrowly applied concept – don’t stretch it • Other Ideas: Conditions and Special Removal Requirements: 1. Conditions: a. district in same state as cause of action brought it b. court has original jurisdiction (1331, 1332, 1367) 2. Special Removal Requirements a. 1441(c) if diversity is basis for original jurisdiction: D must be noncitizen; “no local defendant rule” b. if federal question is basis: must appear in P’s original complaint More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 8 of 52 I. Power: PERSONAL JURISDICTION I. Procedural Due Process Did They Properly Exercise Their Power? -Notice (Mailbox): • Rules: Federal: Constitutional/Procedural Due Process; Rule 4/Summons; Rule 12 (b) 2/Dismissal for Lack of PJ; Rule 12 (b) 4 & 5/Dismissal for Insufficient Process or Service State: Statute (Mullane: 1. Substantive argument/no PJ/power question (court says there is) and 2. procedural/notice not proper Publication Notice statute: Notice by publication is sufficient to satisfy due process challenges if it is reasonably calculated under all the circumstances to apprise the interested parties of the pendency of an action and afford them an opportunity to present their objections) • Challenging Jurisdiction: State Court: General appearance: you are submitting to subject matter and jurisdiction; everything Special appearance: argue one point, such as that the court lacks jurisdiction over you Limited appearance: cap liability to amount that property is worth in in rem/quasi in rem action; i.e. worse thing that could happen to me is that you will only take one hotel rather than all of the hotel Federal Court: -The “general, special, limited” vocabulary is not used -Mix procedure and substance(argue no PJ and demurrer for lack of claim)? Yes, 12 (b)(2)in general which includes all of the pretrial motions you can make -Timing (when can you make these claims)? 12 (h)-defense of lack of PJ…must be made when a 12 motion is made except for a 12 (h) motion; if no motions made, can include it in your answer • Waiving Jurisdiction Generally: -Not an abuse to assume PJ for the purposes of establishing whether there is PJ -If D fails to comply with discovery to establish jurisdiction then presumption is that jurisdiction exists (Ireland) State: Federal: if not in initial response (pre-answer or answer) then waived (12(h)(1)) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 9 of 52 -History/Policy: • Federalism: (Pennoyer: “Every state owes protection to its own citizens; and, when non-residents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such nonresiident to satisfy the claims of its citizens” A state possesses exclusive jurisdiction and sovereignty over persons and property within its territory) a. in personam jurisdiction(body) i. personal service ii. service w/I the state (minimum contacts rule) iii. implied consent b. in rem jurisdiction (substitute for in personum)(property; deciding ownership of property; house) c. quasi in rem(taking diamond ring in place of body; original claim unrelated to the property that is actually being seized) i. constructive notice ii. attachment iii. seizure • Minimum Contacts (International Shoe: “shoe salesmen”; contacts “make it reasonable and just, according to our traditional conception of fair play and substantial justice, to permit the state to enforce the obligations which the appellant has incurred there) • Purposeful Availment (Hanson v. Denckla: “old lady’s estate”; “Those restrictions (from Pennoyer and International) are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective states”)(Asahi) • Regardless of Type (Shaffer v. Heitner: if DL cared that much, they would have enacted a statute; Brennan’s dissent: PP issues favor jurisdiction for DL b/c substantial interest in protecting local corps.; center of gravity in forum state should lead to jurisdiction; DL has interest in affording convenient forum for supervision of affairs of an entity that they created) • Passing the Hurdle Specific v. General? (Burnham: Scalia/takes hx seriously (Pennoyer) and thus, presence very seriously; Brennan/important, but does not preclude tnfpsj, less deferential attitude toward history, just because things were being done one way does not make them right) (Kenerson)(Zippo) Fair play Factors: (World Wide Volkswagon: the point minimum contacts is to protect Ds and restrain states; the due process clause is an instrument of interstate federalism; Brennan’s dissent: too little respect was given to forum state’s interest; Marshall’s dissent: reasonable businessman should have been alerted to possibility of jurisdiction) (Burger King) • Consent (Carnival Cruise Line) • Constitutional Requirement of Notice (Mullane) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 10 of 52 • No More Federalism (Ireland: due process is the only source of PJ, if federalism were an issue then PJ wouldn’t be waivable; “the PJ requirement recognizes and protects an individual liberty interest; represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty.”) II. Substantive Due Process/Power (Long Arms and Shield): Do they have power? -Federal: -Constitutional: Substantive Due Process (federalism/Pennoyer—not anymore after Ireland) Article IV (state to state relationships) and 14th Amendment (state to individual relationships) -FRCP/Statutory: Rule 4/Summons (analog to state long arm) Rule 4(k) Commencement of Action; Service (k): Territorial Limits of effective service; fed. courts can assert PJ over following people: 1. Those who fall under state long-arm statutes (ds amenable to suits in state where DC is) 1. 100 Mile bulge rule: Ds joined as 3rd parties and served w/I 100 miles of he place where the summon issues 2. Federal interpleader statute: Parties of complete diversity, assets of $500 or more 3. Federal long arm statutes: Ds amenable to suit in DC pursuant to fed. statute 4. Also Ds who are not residents of US, but who have sufficient contacts with US but lack sufficient contacts for any particular state 4k1: a: federal long arm can reach as long as state long arm b: 100 mile bulge (hook people through impleader or……) c: interpleader d: any other statute that says if you can reach further, you can 4k2: reach beyond if: D subject to PJ in any state (no longer in US) and It’s a federal claim and It’s constitutional (5th amendment due process clause in Section 1; note there are two due process clauses; V Amendment constrains federal court and XIV Amendment constrains state court) Then: Serving summons produces PJ -Specific Federal Statutes State: -Long Arm Statute -State Legislature must grant power to exercise PJ -Going to the limits of Due Process (interpret as liberally as possible) -If specific enumerated acts then claim must arise from enumerated acts -Long arm reach may exceed constitutional grasp (Crocker v. Hilton: “rape in Barbados” A cause of action under a long arm statute must arise from the defendant's particular transaction of business within the forum and not any transaction) *Understand that there is a difference b/t statute/long arm and constitution/negative limitation on delegation of affirmative power More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 11 of 52 Is that Power Okay? (Negative limits of Due Process) -Consent: (Carnival: forum selection clause inserted in good faith is enforceable) -Presence: (Burnham: physical presence for service of process) -Minimum Contacts/Passing the Hurdle: 2 steps to determine specific v. general jurisdiction? -what type of PJ attempted: specific or general? -enuf pa contacts for that type? Dueling gremlins: • Specific v. general (break down into steps above) • Fair play factors -Specific v. General -If general, need systematic and continuous (International Shoe: presence and consent; borders matter; red line) (Burnham: physical presence for service of process) (Kenerson: tacit solicitation of business was continuous and systematic/General jurisdiction) -If specific, fewer are required 1. Narrow: arises out of contacts 2. Broad: related to claim (Zippo: : Interactive contact over internet constitutes PA. Contacts: gave people passwords and had a choice to decline or approve them; spectrum of amount of contact: passive v. interactive v. doing business; court said they were doing business; 1. Push v. pull (interactive vs. passive technologies): Impacts what you think counts as purposeful availment and 2. knowledge of geographical location) -Fair Play Factors (WWV: consider burdens on D, state’s interest, P’s interest, interstate efficiency, and substantive social policies of the several states) (Burger King: systematic and continuous contractual relationship; fair play factors lower the bar for min. contacts, relationship was purposefully availed and freely negotiated; sliding scale; Jurisdiction is proper when the contact proximately results from actions by the defendant himself such that they create a substantial connection with the forum state) -Sliding scale theory: if fair play part of the equation is reasonable, you don’t need a lot of contacts to assert PJ; if its fair, you don’t need much contact; on the flipside, if there are a tremendous amount of contacts, fair play would have to be really unfair to flip it; -Lexical ordering: first check for contacts and second, check fair play (not inconsistent theories) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 12 of 52 -Purposeful Availment/"Discount Factor" (Hanson v. Denckla: unilateral act of P not sufficient for minimum contacts) (Asahi: O’Connor says stream of commerce not enough, need purposefully directed towards forum state; Others say min. con. Satisfied, but TNFPSJ override (particularly with foreign D) -Regardless of Type (Shaffer v. Heitner: dissolved in rem jurisdiction; The mere presence of property within a state is not sufficient to confer jurisdiction on a court over a defendant that has no ties, contacts, or relations in that state; Scalia/feels it doesn’t really apply because hx based on Pennoyer show that it matters when a D is w/I borders; distinguishable because Pennoyer was applied when there was not presence, they were a substitute for presence—but here we have presence and don’t have to worry about minimum contacts; Brennan/important to him because Ds contacts did not meet standard just because he was inside the borders of the state; Brennan thinks Shaffer means all cases need min. contacts rule; no absolute answer about what Shaffer was intended to mean; indeterminate opinion that can be argued either way; Brennan’s alternative: enuf contacts exist, but presence alone is not enough—you need tnfpsj) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 13 of 52 PJ CHECKLIST: I. Procedural Due Process/PJ 1. Were you given notice? No: Stop. No PJ Yes: Continue Analysis 2. What Court are you in? A. Federal: No: Stop. Move to State Analysis Yes: Continue Analysis a. Was notice "reasonably calculated" to reach you under Rule 4 standards? No: Stop. No PJ. Yes: Continue Analysis b. D or Class Action Ps served with constructive notice? Yes: Stop. No PJ (Mullane: constructive notice is not enough) No: Continue Analysis c. Physical Presence in the state at the time of service of process: Yes: Continue analysis. (Burnham: presence at time of service of process enough for federal crt to assert PJ B. State Court? a. Does state statute comply with Mullane? No: Stop. No PJ. Yes: Continue Analysis b. Physical Presence in the state at the time of service of process: Yes: Continue analysis. (Burnham: presence at time of service of process enough for federal crt to assert PJ) 3. Challenging PJ A. Federal Court? • PJ must be challenged in 1st response to the court (pre-answer or answer) -12(b)(2) motion/dismissal for lack of PJ; if you raise any Rule 12 motions, you must filed 12(b)(2) motion or waive PJ • No provision for special appearances • Default-don't show up at all -Collateral Attack • If you lose PJ, must wait for final judgment to appeal B. State Court? Special Appearance Default More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 14 of 52 4. Waiving PJ (Note: if federalism were an issue, you couldn’t waive PJ b/c an individual cant waive state sovereignty) 1. Voluntary Waiver 2. 12(b) error 3. Waiver Theory (CBG) 4. Presumption Theory (CBG) II. Substantive Due Process/PJ 1. Grant of Authority/Restraints on PJ/Depends on Court State: Long Arm Statute (States can limit their long arms from the total power given to them by the constitution. However, states cannot expand power given to them by constitution.) (Crocker) Federal: Rule 4 -Rule 4(k)(1)(a)/(b) and (c) -Rule 4(k)(2) 2. Negative Limit Federal: Constitutional Due Process/5th Amendment see comments in supplement; 4/20/2004 State: Constitutional Due Process/14th Amendment 3. Consent -Private a. voluntary b. voluntary, but coerced -Public a. voluntary (Tag jurisdiction does not work on corporation--an individual cannot be served as a representative of the corp) b. voluntary but coerced 4. Nature of Activity/Specific v. General (International Shoe) Contacts: General Jurisdiction: Systematic and Continuous Contacts (Kenerson) (no need for nexus b/t claim and nature of contacts with the forum state) Specific Jurisdiction: fewer, but…… -TNFPSJ -Purposeful Availment (Hanson v. Denckla) -Fair Play Factors (WWV) 1. burden on D 2. forum state's interest in adjudicating the dispute 3. P's interest in obtaining the most efficient resolution of controversy 4. shared interest of several state's in furthering substantive social policies -Fair Play Factors outweigh Purposefully availed contacts/Balancing Test (B. King)? Yes: D's burden works to advantage of P and unfair; will not exercise PJ over D No: PJ stands More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 15 of 52 Summary (how to determine if a court has PJ) 1. Identify court Affirmative delegation of power: stick in arm Negative limitation: shield 2. State: Affirmative delegation: look at long arm statute Negative limitation: 14th amendment, DPC 3. Federal: Affirmative delegation: 4k 5th amendment, DPC Summary of Cases: Pennoyer (1877): presence and consent; borders matter; red line Shoe (45): minimum contacts, fair play, specific v. general Hanson (58): purposeful availment Shaffer (77): unified theory of PJ (no more quasi in rem) WWV (80): fair play factors introduced Bking (85): interplay b/t contacts and fair play (sliding scale, lexical ordering) Asahi (87): notion of “purposeful”; contacts and fair play Zippo: 1. Push v. pull (interactive vs. passive technologies): Impacts what you think counts as purposeful availment and 2. knowledge of geographical location) Kenerson v. Lindblade: general jurisdiction; state may subject another to jurisdiction based on continuous and systematic pursuit of general business activities within the forum state Burnham: general jurisdiction; States have jurisdiction over persons physically present in the State. There is no due process problem with the service of a party voluntarily present in a state. This is an example of transient jurisdiction Ireland: Jurisdiction to Determine Jurisdiction Mullane Crocker Any more???? More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 16 of 52 III. Power: VENUE (3RD RING IN A 3 RING CIRCUS) Is this district okay? • Statutory: Federal Rule 28 USC 1391 (purely statutory, no constitutional support) 1391(a)-only diversity cases 4/20/2004 1. district where any of the Ds reside, if all Ds reside in the same state 2. district where substantial events or omissions occurred or district where substantial part of property that is subject of litigation is located 3. district where any D is subject to PJ at the time action is commenced; fallback position only use if if no 1 or 2 1391(b)-all other smj cases 1. district where any of the Ds reside, if all Ds reside in the same state 2. district where substantial events or omissions occurred or district where substantial part of property that is subject of litigation is located 3. district where any D is found, if no 1 or 2; no one knows what “found” means; see “fundamental diff” below. What does “reside” or found mean? Corporations: do PJ/Int. Shoe analysis for each separate district as if they were separate states; see 1391(c) Individuals: some courts interpret "Reside" to mean domicile and some only where you have an address Fundamental diff. between 1391(a)(3) and 1391(b)(3)? -we just don’t know the answer -1391(a)(3) is broader because you can always have PJ based on minimum, but not always find someone???? We resist this because federal question usually gives us more than just diversity; some courts, though, interpret both the same way; it’s a very hard statute to interpret -could say that (a)(3)=4(k)(1)(a)+minimum contacts with the state whereas (b)(3)=4(k)(2)+minimum contacts with the nation 1391(c): corporations Corporations reside wherever they are subject to PJ at commencement of action--if state has many districts, (So, California can exert jurisdiction throughout the entire state.) then apply contacts analysis as if districts were states and if no minimum contacts with any one district, then the district with the most contacts Think Shoe analysis California Districts: NECS (North, East, Central, Southern) If you’re trying to figure which district gets venue, you treat each district like it’s a state and perform a Shoe analysis on each district. Think about things mailed into district (McGhee); and all the Shoe factors. You might wind up with an analysis that says more than one district is OK. 1391(d): aliens Aliens can be sued in any district 1391(e): employees of US or officers 1391(f): against a foreign state More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 17 of 52 • Forum Non Conveniens -state-to-state or U.S.-to-foreign -For foreign transfers, a U.S. Court can’t order a foreign country to hear it; so it can only dismiss or stay on the grounds that the case is more appropriately heard elsewhere. -Is not statutory, is common law -Is not transfer, is dismissal or a stay -Available to D only, and court 1must have PJ and venue -FNC not granted merely for parties preference of change in substantive law in receiving court ; ie this is not for forum shopping (Piper Aircraft v. Reyno/Reyno (P as representative of decedents) brings negligence and products liability claims in CA against Piper and Hartzell (Ds) in CA state probate court to take advantage of CA tort laws; Ds move for removal on the basis of diversity; D then motions for transfer to a fed. district crt. in Penn.; D then makes motion to dismiss on basis on forum non conveniens, motion granted; 3rd circuit reverses and SC affirms original ruling) Wednesday, April 21, 2004 personal jurisdiction; does the court hove the POWER (pennoyer) Does it make sense for this court to hear it? Do we want a strict rule? Jurisdiction Venue as a localizing factor FNC as a localizing factor Flexibility vs predictability How fair is it to keep moving cases all over the place? Where can it be heard? Vs. Where might it be heard. Private Factors: -case of obtaining evidence -inability to join -burden on witnesses -inability to view the premises (crash site) Public Factors: -forum's interest in the case -choice of law problems -burden on local jury or court infrastructure -Alternative forum/destination forum necessary for FNC? No; this is a dismissal with hopes of refiling, but sometimes can’t be re-filed and have to force D to promise to waive SOL -Whose law applies? Court 2 • Transfer 1404: transfer when venue is proper (PJ, SMJ and venue met, but more convenient to do it someplace else) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 18 of 52 What does “convenience” mean? -could be closed to private and public factors in FNC because of “parties and witnesses”/private and “ in interest of justice”/public What does “where it might have been brought” mean? -very limited What does it require? -PJ, SMJ, venue Consent? (ie D waives objections to venue and jurisdiction) Ds consent doesn’t count 1406: transfer when venue is improper (P made a mistake and allow for transfer to proper district or division venue) What about statute of limitations on the underlying action? What if the Court finally rules on jurisdiction, says you have to move, but now your SOL has run. Are you are sol? 1407: multi-district litigation -uncommon -Panel of Judges Can appoint a single court to consolidate cases on a pre-trial basis -usually involves major tort claims such as airlplane crashes or complex securities litigation; -cases in multiple districts in the same matter can be consolidated before 1 judge for pre-trial purposes only. That way the discovery and pretrial proceedings are not a complete disaster. Once it’s time for trial, everyone goes home and tries the case in their original court. 1631: transfer when venue is proper, but no PJ -Alternative forum/destination forum necessary for FNC and for transfer? Yes -Whose law applies? 1404: court 1 1406: court 1 or 2 1407: 1631: court 2 • Summary/Difference B/T FNC and Transfer: FNC: state-to-state or U.S.-to-foreign: common law; available to D only; less discretion ( because default rule is to protect P’s choice of forum); destination law applies; origin must have PJ and venue; PJ and venue can be cured by D’s consent Transfer: statutory; available to D and P; more discretion; origin law applies 95% of the time; origin need not have PJ and venue; PJ and venue cannot be cured by D’s consent A transfer can be from District-to-District; or From Division-to-Division. A division is a subset of a district; it is a particular Court house in a district. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 19 of 52 VENUE CHECKLIST: A. Venue 1. Federal Court: a. Diversity Only? §1391(a) 1. district where any of the Ds reside, if all Ds reside in the same state 2. district where substantial events or omissions occurred or district where substantial part of property that is subject of litigation is located 3. district where any D is subject to PJ at the time action is commenced, if no 1 or 2 b. All other SMJ cases? 1391(b) 1. district where any of the Ds reside, if all Ds reside in the same state 2. district where substantial events or omissions occurred or district where substantial part of property that is subject of litigation is located 3. district where any D is found, if no 1 or 2 2. State Court: not addressed B. Transfer Statutes (3): More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 20 of 52 1. 1404: initial venue proper; more convenient and fair to transfer it someplace else 2. 1406: initial venue improper; cure of waiver or defects 3. 1631: transfer to cure lack of PJ C. Forum Non Conveniens 1. Common Law doctrine 2. Legal Standard: Private v. Public Factors (Piper Aircraft v. Reyno); note 6, p205 4/21/2004 Private: -Relative ease of access to sources of proof -Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses -Possibility of view of premises, if would be appropriate to the action -D's burden may translate into P's benefit (unfair) -All other practical problems that make trial of a case easy, expeditious, and inexpensive Public: -Administrative difficulties flowing from court congestion -Local interest in having localized controversies decided at home -The interest in having the trial of a diversity case in a forum that is athome with the law that must govern the action -Avoidance of unnecessary problems in conflict of laws, or in the application of foreign law -Unfairness of burdening citizens in an unrelated forum with jury duty D. Comparison B/T Transfer and FNC: • Common law or Statutory? FNC: common law Transfer: Statutory • Alternative forum/destination forum necessary ? FNC: No Transfer: Yes • Whose law applies? FNC: Court 2 Transfer: 1404: Court 1 1406: Court 1 or 2 1631: Court 2 • Origin Must have PJ and Venue? FNC: Yes Transfer: No • Can PJ and Venue be cured by D's consent? FNC: Yes Transfer: No More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 21 of 52 I. Lifecycle: PLEADING: Complaint, Pre-answer Motions, Answer, Reply, Amendments • Complaint/Plaintiff • Stating a claim: • Federal Rule: Rule 8/Complaint Must: 1. contain grounds for jurisdiction 2. claim for relief 3. demand for judgment -Pleadings do not need to be too detailed b/c of expansive discovery rules -However, in order to be demurrer (state demurrer is equivalent to federal 12 b 6 motion to dismiss) proof, a form complaint must contain whatever ultimate facts are essential to a state cause of action under existing statutes or case law More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 22 of 52 (People ex rel. Department of Transportation v. Superior Court: form complaints are not immune to demurrer if they fail to meet essential pleading requirements) (Duncan v. ATT: client held liable for attorney's actions) -How to write a complaint that won’t get dismissed: 1. Look to relevant substantive law; 2. find the elements that are necessary for that claim/cause of action 3. make sure that try to state some factual claim that seems to support those elements • Burdens/Allocation of elements: (Gomez v. Toledo; "whistleblower case"; allege bad faith or affirmatively defend with good faith; who has burden of pleading? for defense that relies on particular personal knowledge of D, burden lays with D) • Kang's Burden of Equivocations: -Burden of Pleading (who was has to say what in complaint (element of cause of action)/answer(affirmative defense); waiver; amendments) and -Burden of Proof (who bears it and where it is set): Burden of production (who: affects summary judgment litigation strategies; where: affects when judge takes case away from jury in SJ and DV) Versus Burden of persuasion (who: rarely important; where: preponderance of evidence (civil, over 50%), clear weight of evidence, beyond reasonable doubt (criminal/95%)/affects which party will win); if right on the edge, goes to D • Response/Defendant (Pre-Answer Motion, Answer, Amendments) • Preanswer motion: -Potential substantive arguments that can be raised: 12b1-7 12e: definite statement; almost never used because discovery sufficient 12f: strike; almost never used -Waiver Rule 12 g and h work in unison • Answer -Effective Denials/Rule 8 (b) (Zielinski v. Philadelphia Piers: Philadelphia Piers was punished for having a bad denial in the form of court finding they did own and Sandy Johnson was employed by them and P) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 23 of 52 -Affirmative Defenses/Rule 8(c) (Layman v. Southwestern Bell Telephone Co.: is right of entry an affirmative defense to trespass claim? Must come out as an affirmative defense in pleadings in order to come up in trial if D intends to rest his defense on some fact not included in the allegations necessary to support P's case) (Rule 55.08 was analog to rule 8(c)/D needs to assert affirmative defenses in pleading and easement is not listed as an affirmative defense, but applies to explicit part of law that says “any other matter constituting an avoidance or AD”, so issue was whether easement is an AD? (list in 8(c) is not an exhaustive list, but illustrative) Test for Affirmative Defenses: -if D intends to raise defense upon some fact not included in the allegations necessary to support P’s case So why was easement in Layman an AD? Because D was the only one who has the knowledge of the easement and P did not have to allege that D had a lack of easement -Another way to think about AD is to ask if D is denying a factual element of the claim? If No, then it is an AD ( it is a "yes, but…." defense) • Reply: Rule 7(a): P must reply to counterclaims • Amendments -Rule 15(a): “leave shall be freely given when justice so requires” What does “when justice so requires” mean/factors to consider? Bad faith, undue delay, undue prejudice, etc. (Foman v. Davis, important SC decision that interpreted what “when justice so requires”) -"When Justice so Requires:" (Aquaslide: motion to amend answer granted and motion to sever trial (decide liability and damages separately) granted) -"Relation Back:" (Moore v. Baker:/Informed Consent, Relation Back Case; 15(c); new claim barred b/c it did not "relate back"; informed consent and negligence; must relate back amendments after statute of limitations; critical issue is whether original complaint gave notice to the D of the claim now being asserted; no in this case) (Compared to Azarbal, in Azarbal: 1. complaint: negligence; 2. sol runs and 3. amendment: lack of informed consent; So why does the court think that it is distinguishable? Focus on complaints and whether they give notice to Ds; Moore complaint does not signal any possibility of negligence—only informed consent; whereas Azarbal complaint might have given more notice to Ds) (Bonerb v. Caron Foundation: negligent maintenance claim; sol runs; R15 motion to amend for counseling malpractice justification for allowing the amendment? Set of facts made clear and D should have been able to see that a claim for counseling malpractice could come about; ie basketball was part of therapy and that was bad therapy; foreseeability; theory is that one who has been given notice has necessarily been provided with all the protection that SOLs are designed to afford) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 24 of 52 Just because it relates back, do we allow the amendment? No; have to look at opponent prejudice 15 (a) and movant blameworthiness (did P slack for bad reasons?) How do we distinguish Moore (informed consent/negligence) and Bonerb (negligent maintenance/counseling malpractice)? Not clear; tremendous discretion re: whether notice has been given Pleading Checklist 1. Why Pleading Matters -Why important to the process? Acts as a gatekeeper to next stage of litigation (discovery is only available if one can file a valid complaint) -Why important to P? If case is killed b/c of invalid claim, P has lost the opportunity for relief based on that claim -Why important to D? If D can kill suit in this stage, then D does not have to worry about expensive discovery or the possibility of losing Why important to the Judge? Waste of efficiency for courts to spend time on unmeritorious claims while other meritorious claims are waiting. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 25 of 52 2. Stating a Claim/Plaintiff: -Pleadings: About allegations, not proof; allegations are accepted as true on their face -Legal Standard for a sufficient complaint: Rule 8(a) Complaint Must: 1. contain grounds for jurisdiction 2. claim for relief 3. demand for judgment (People ex rel. Department of Transportation v. Superior Court) (Duncan v. ATT) -Dismissal of Complaints: "With leave to amend" allows for amendment of complaint and re-filing "With prejudice' makes sure that case is not dismissed on its merits 3. Allocating the Elements -Burden of pleading, persuasion, production: depends on statute -Ds responsible for affirmative defenses (Gomez v. Toledo) 4. Responding/Defendant: -Pre-answer motion: Federal: Rule 12(b)-governs pre-answer motions (12(b)(6): failure to state a claim) State: demurrer -Answer: (if D can't kill complaint with a pre-answer motion) 2 options:Denials or Affirmative Defenses -Denial: Rule 8(b)/Requires D to deny only those allegations that D actually disputes General Denial: an answer that denies each and every allegation of the complaint; disfavored (Zielinski v. Philadelphia Piers, Inc: had D filed a specific, rather than general denial, it would have warned P that he had sued the wrong D) -Affirmative Defenses: Rule 8(c) (Layman v. Southwestern Bell Telephone Co.) 5. Reply: More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 26 of 52 Rule 7(a): P must reply to counterclaims 6. Amendments: Rule 15(a): "When justice so requires" (Beeck v. Aquaslide: yes) Rule 15(c): "Relation Back" (Moore v. Baker: no) (Bonerb v. Richard J. Caron Foundation: yes) II. Lifecycle: DISCOVERY (Disclosures, Probes, Sanctions, Subpoena) • Federal Rules: Disclosures: Rule 26 (a)/Disclosures: controversial, adopted a couple of years ago; force initial disclosures in re: to disputed facts; central district has opted out of it and any other district has choice to opt out; have to cough up basic information Rule 26(b)(1): "everything, not privileged, which is relevant is discoverable" What does "relevant" mean? Evidence has to be probative of factual allegations that is material to a legal claim/cause of action (Blank v. Sullivan & Cromwell: sex discrimination in hiring claim; in Title VII cases, labor hierarchy info is relevant and discoverable) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 27 of 52 (Steffan v. Cheney: whether he actually engaged in homosexual conduct not relevant to legality of termination. "Judicial review of an administrative action is confined to 'the grounds upon which the record discloses that the action was based) What does "privileged" mean? (Hickman v. Taylor: P lazy, could have obtained relevant info themselves; cannot pierce mental impressions; not privileged because not communications b/t attorney and client and not legal advice made up by SC in this case in the interest in PP, since the information was not protected) *Rule 26 (b)(3)/Work Product Protection -Codification of Hickman v.Taylor doctrine/work product protection -Applies to documents and tangible things in "anticipation of litigation " (general definition of ordinary work product) -Court shall protect against mental impressions, conclusions, opinions, legal theories (opinion work product) -Speakers right to access of own statement What is "attorney/client privilege"? Nature of communication; confidential communication b/t attorney and client; if giving client legal advice, then it is privileged; but can waive it by sharing it with other people Pierceable? 1. Necessary/relevant 2. could not normally get it would allow you to get it; if party has access to info requested and does not need to ask opposing party for it, then wont generally get it Probes a. Questions: i. Interrogatories, Rule 33 (can only ask other parties, not 3rd party witnesses) ii. Depositions (can depose people who are not party to the litigation; generally don’t need courts permission subject to the numerical limit; subpoena them) 1. Oral , Rule 30 2. Written, Rule 31 b. Examinations i. People, Rule 35 ii. Documents, Rule 34 1. Party, Rule 34 2. Nonparty, Rule 34(c), 45 c. Admissions i. Rule 36 (quasi pleading device; generally best used on getting information about things that are not controversial) Sanctions: Rule 37: Failure to Make or Cooperate in Discovery: Sanctions Subpoena. Rule45: Subpoena Discovery Checklist: • Disclosures: -Initial Disclosures: Rule 26 (a) -Relevant and Not Privileged: 26(b)(1) -Work Product Protection: Rule 26 (b)(3) (Codification of Hickman v.Taylor) Pierceable? 1. Necessary/relevant 2. could not normally get it would allow you to get it; if party has access to info requested and does not need to ask opposing party for it, then wont generally get it • Probes: More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 28 of 52 a. Questions: i. Interrogatories, Rule 33 (can only ask other parties, not 3rd party witnesses) ii. Depositions (can depose people who are not party to the litigation; generally don’t need courts permission subject to the numerical limit; subpoena them) 1. oral , Rule 30 2. written, Rule 31 b. Examinations i. People, Rule 35 ii. Documents, Rule 34 1. Party, Rule 34 2. Nonparty, Rule 34(c), 45 c. Admissions i. Rule 36 (quasi pleading device; generally best used on getting information about things that are not controversial) • Sanctions: Rule 37: Failure to Make or Cooperate in Discovery: Sanctions • Subpoena Rule 45 III. Lifecycle: PRETRIAL ADJUDICATION (Default, Dismissal, Summary Judgment) • Default judgment Federal Rule? Rule 55/Default How do you get one? D failed to plead or defend w/I appropriate time (usually 20 days) Consequences? More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 29 of 52 Matter adjudicated; D loses; but P must prove up damages Rule 55(c)/Setting it aside? Can be set aside for various reasons in 60(b) and/or showing of good cause • Dismissal • Federal Rules? -Rule 41/Dismissal of Actions Rule 41(a)/Voluntary dismissal? P decides voluntarily to dismiss complaint How to get one? 1. P can do it if D has not answered (If you’ve done this once before, you can’t do it again) 2. If D has answered, D can agree to it 3. If D has answered, court can rule on it Rule 41(b)/Involuntary Dismissal How to get one? P fails to prosecute their case or to comply with rules/orders What are the consequences? Regarded as an adjudication on the merits; ie P cannot bring another case unless court specifically says it can be brought up again -Rule 12(b) pre-answer motion:also causes dismissal • Summary Judgment -Rule 56/Summary Judgment -Standard: Looking at evidentiary materials in light most favorable to opponent (person trying to fight against summary judgment): 1. No GIMF (genuine issue as a matter of law) 2. Movant should win as a matter of law -Burdens: (who bears it and where is it set): Burden of Pleading Burden of Proof Burden of Production Burden of Persuasion (More important about where is it set than who bears it due to different standards) (preponderance of evidence, clear weight of evidence, beyond ar reasonable doubt) *If P moves for SJ, BOP much higher and P cannot take reactive stance -Proactive v. Reactive Proactive stance: affirmatively provide evidence that counters other side (provide affirmatively evidence that OJ was on a talk show during the time the murder was committed) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 30 of 52 Reactive stance: P did not provide affirmative evidence; don’t show anything, passive and say other side has nothing (point out that the prosecution has not demonstrated beyond a reasonable doubt that OJ murdered the two victims) (Celotex: P brought suit against manufacturers alleging that asbestos killed her husband; D moved for summary judgment alleging that P produced no evidence to show that Celotex manufactured the asbestos, no prox. causation; moving party can take reactive stance in a summary judgment motion; SC says that if you do not bear the burden of proof, you can take either proactive or reactive stance; you don’t have to affirmatively generate evidence, you can just point to the other side and say there are gapping holes in their case; remanded for COA to decide if opponent met BOP/proactive because movant did/reacrtive or proactive) Dissent (Brennan)? No disagreement on rule of law, but different interpretations on standard for reactive stance, how much is needed, Brennan requires more which appears more of a proactive than reactive) Concurrence (White): reactive stance needs to be a little more, cannot just be conclusory—but how do you say there’s nothing other than by just saying there’s nothing/metaphysical problem) SJ Burden Test/Critique: 1. Issue: prox. cause 2. BOP: re proximate cause, plaintiff 3. Movant: D 4. Movant Obligations (does not bear BOP): 1. Could take proactive 2. could take reactive 5. Opponent Obligations: 1. proactive/provide evidence that Celotex might have caused injury (Visser: hard because ADEA case and burdens bounce back and forth; Visser sues Packer under federal law saying you cant fire someone because of their age; Packer responds with motion of summary judgment: Visser produced 3 affidavits, but court unhappy about this; court says affidavits were psycho babble and were not grounded in first hand experience(56(e)) (Flaum dissent: Flaum thinks evidence presented is enough to send to jury) (Shifting burdens-when P presents enough evidence of possibility of age disc (prima facie case), then burden shifts to employer to show that he would have been fired anyway) SJ Burden Test/Critique: 1. Identify element or issue that D is moving for summary judgment upon? Fired because of age 2. Who bears burden? P would normally (Visser normally bears burden); but dissent says that in employment cases D must show that P would have been fired despite age 3. Who is making the summary judgment motion? Packer 4. Movant’s obligations? Does not bear the burden of proof on issue for which the movant asks for summary judgment, so can take reactive stance( P does not present enough proof of firing because of age) or proactive (show he was fired for other reasons; have your client sign an affidavit that says he did not fire because of age) 5. Opponents obligations? To show causation, to show age was the reason for firing; take proactive stance, show there is a genuine issue of fact for jury to decide, that it falls in the jury zone 6. -Standard for affidavits, Rule 56 (e): 1. based on personal knowledge 2. set forth facts that would be admissible at trial 3. establish affiant’s competence to testify IV. Lifecycle: POST TRIAL ADJUDICATION (Directed Verdict, JNOV, New Trial) • Directed Verdict: -Rule 50(a): no sufficient evidence to raise a genuine factual controversy -Overruling: Rule 52/Findings by the Court; Judgment on Partial Findings -Limits of Rational Inference (Reid v. San Pedro, Los Angeles & Salt Lake Railroad: standard negligence case; Reid sues RR for negligence for killing his cow; hole 1 mile away and gate closer to carcass; SC says TC should have directed verdict for D because More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 31 of 52 when evidence could go either way (P fails to meet burden) then D should win; two equally viable inferences mean D wins) (Tittle v. Aldacosta: wet towel, kidney case; clearly erroneous findings of fact can be reversed in bench trials and this was one such case; court reversed DV for D and found them negligent even though towel was not proven to have been causally related to her accident; dissent says decision is baffling) Standard of review: 1. findings of fact (clearly erroneous) 2. conclusion of law (de novo) 3. exercise of discretion/(abuse) For this case, court calls elements: Negligence/findings of fact/clearly erroneous standard Proximate cause/findings of fact/clearly erroneous standard COA says TC was for: Negligence: clearly erroneous (because usually put towel down and did not this time; general custom for preventing slippage) Prox. cause: clearly erroneous (verbal difference b/t missing dock and slipping) (Penn RR v. Chamberlin: deceased in charge of two cars, 7 cars ahead, 9 cars behind; deceased’s body was found; P alleges collision caused death, D alleged no collision; negligence claim; D motions for directed verdict to take away from the jury; motion granted by TC, reversed by COA; case presents conflict b/t witness's testimony based on inference and direct evidence; bad opinion b/c court was judging the credibility of P's witnesses) • JNOV: -Rule 50(b) (Lind v. Schenley Industries: D made oral contract with P for commission; P never received commission; P sued D for breach of contract; P wins at TC, D moved for JNOV and new trial; TC grants both motions; COA reverses JNOV and NT) Why would you grant both motions? In case JNOV is reversed on appeal, Rule 50(c)—encourages court to rule on new trial and JNOV if given both motions, efficiency purpose; standard practice to move for both JNOV and new trial at same time Why would judge grant a JNOV, but not a new trial? Recognizes narrow question of law that COA might flip judge on and judge feel okay with that; don’t want it to have to go to jury if judge feels okay that COA might flip judge • New Trial: -Rule 59 -Factors to consider: -Flaws in procedure/more likely to grant NT because not usurping jury and flaws in verdict) -Complex Issues (more likely to grant NT) v. not complex (not likely to grant NT) Adjudication Checklist: • PreTrial/Different results: 1. Default: -no answer by defendant/P wins by default; Rule 55 -Setting Aside Default: Rule 55(c) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 32 of 52 2. Dismissal/P's fault: a. voluntary (I take it back); Rule 41(a) b. pre-answer motion (Rule 12(b) motion causes dismissal) c. involuntary (failure to prosecute a case); Rule 41(b) -What default and involuntary dismissal do: Force P and D to fight; if P doesn’t fight, involuntary dismissal; if D doesn’t fight, default 3. Summary judgment; Rule 56 -Summary Judgment Test 1. No GIMF 2. Movant Entitled to Judgment as Matter of Law Who bears the Burden on GIMF: 1. Identify Element or Issue that SJ is based on 2. Who bears burden of proving that element/issue? 3. Who is moving for SJ? 4. Movant's Obligations? 5. Opposing Party's Obligations? Affidavits, Rule 56(e) 1. based on personal knowledge 2. set forth facts that would be admissible at trial 3. establish affiant’s competence to testify • Post-Trial: Directed Verdict (aka: motion for judgment as a matter of law) -Rule 50(a) -Standard: no legally sufficient evidentiary basis for a reasonable jury to find for party on that issue -Which side, if any, can move for direct verdict in following cases: After P’s case: D After D’s case: P, D After all evidence: P, D JNOV (aka: renewed motion for judgment as a matter of law) -Rule 50(b) -Rule 50(c)—encourages court to rule on new trial and JNOV if given both motions, efficiency purpose; standard practice to move for both JNOV and new trial at same time New Trial: -Rule 59 -Factors to consider: -Flaws in procedure -Complex Issues DV v. JNOV? Timing, no difference in substantive standards More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 33 of 52 JNOV v. New Trial? -New Trial can be made by judge (sua sponte) -Easier to grant NT (do over) v. granting JNOV (jury was wrong) Standards of appeallate review: 1. findings of fact (clearly erroneous) 2. conclusion of law (de novo) 3. exercise of discretion/(abuse) -Appeal: Final Judgment Rule JNOV NT Appealable Denied Denied Yes Granted Denied Yes Denied Granted No Granted Granted Yes (because NT is alternative; Lind) • Summary of Kill Points 12(b): pre-answer motion to dismiss (based on pleadings): " failure to state claim upon which relief may be granted" 12 (c), pleadings 41: Dismissal 55: Default Judgment 56: Summary Judgment (after discovery) : "no GIMF" 50(a): Directed Verdict: "no legally sufficient basis" 50(b): JNOV: "no legally sufficient basis" 59: New Trial: " miscarriage of justice/procedural flaw or verdict flaw" • Differences B/T Demurrer, SJ, DV/JNOV, and NT Demurrer, 12b6/pre-answer motion; (Duncan v. AT &T/Ca. Dept of Transportation); “failure to state a claim upon which relief may be granted”; even if everything party is saying is true, they still could not get a judgment; ie fail to state an element of a cause of action, like causation in CA Dept of Transpo.; doesn’t test proof—only factual allegations; qualitatively different b/c just talking about allegations SJ, 56/usually after answer: no genuine issue of material facts; ie no dispute so why bother giving it to the jury? Formally court says same standard for SJ and DV/JNOV DV/JNOV, 50/trial/no legally sufficient evidentiary basis for a reasonable jury to find for the party; standards wise, easier to grant NT than JNOV because JNOV disrespects jury NT, 59: “or any of the reasons for which new trials have heretofore been granted” (other standards like miscarriage of justice, procedural flaws, problem with verdict) VI. Complexity: RES JUDICATA A. Claim Preclusion (CP): • Standard: More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 34 of 52 1. A valid, final judgment on the merits 2. Precludes all claims arising out of the same litigation unit 3. Between the same parties *Apply Preclusion Law where Suit 1 took place 4 permutations: Court 1 Court 2 Authority State State FF & C/Art. IV, §1; 1738 State Federal 1738 Federal Federal 1963, federal common law Federal State Supermacy Clause, Article VI, cl 2 • “Valid Final Judgment”/(Respecting Previous Courts Judgments) (Saylor v. Lindsey: Suit 1: H sues TC in shareholder’s derivative suit/securities and breach of fudiciary duty causes of action, federal court; result: complaint dismissed with prejudice b/c failure to post bond which is required by statute Suit 2: Saylor brings exact same suit against TC, federal court, dismissed on grounds of RJ; P argues that judgment in Suit 1 was not a “final judgment on the merits”; D argues that it was 41(b)/Involuntary Dismissal: failure for P to prosecute or comply with these rules…other than dismissal for lack of jurisdiction, for improper venue or failure to join party…operates as an adjudication upon the merits; Crt here doesn’t do strict reading of 41(b), because case does not fit any of the 3 exceptions; rather, looks at Costello v. US/says common law practice of “on the merits” was not meant to be changed by 41(b); in this case, P didn’t have an opportunity to do anything before it was dismissed—“the merits” were never even decided; but, distinction b/t Costello and Hawkins is that Costello was dismissed “without prejudice” and was also dismissed because of lack of jurisdiction and did fit in with the exceptions in 41(b); so it is lousy precedent to cite—but the court uses it anyway) Which of these possible moves before jury verdict by D are considered final if granted: -12b motion-depends on which one (optional) -12c, pleadings-depends on what argument you are making, if same as 12(b)(1), then no -41 (b), involuntary dismissal-depends (see 12(b))/(Saylor) -SJ, 56-yes -DV, 50-yes -jury verdict-yes • “Claim” -Majority(Broad) Standard/Restatement 2d: arising from same TORO -Minority (Strict) Standard/IL Law: use the same evidence (Rush v. Maple: wife and husband in motorcyle accident; in suit 1, P sues for property damage; in suit 2, P sues for bodily damages; both sides wanted to use different kinds of RJ (claim and issue); D wants to use claim preclusion, that that should have raised it in first claim; P wants to use issue preclusion and say we already decided that and so it should allow me to win here) Efficiency: (Frier v. City of Vandalia: Suit 1: P is Frier and D is City of Vandalia; replevin is cause of action (illegally taking his car); brought in state court and court said police were allowed to do that; case dismissed, writ of replevin not issued Suit 2: P sues in fed court under due process claim; ruling on summary judgment motion; 12 b 6’d, case dismissed—no case for P; judgment appealed to 7th circuit Applying std to Frier v. Vandalia: 1. no issue of final judgment More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 35 of 52 2. yes issue of what litigation unit is 3. no issue of same parties Central dispute b/t majority and concurrence: Dispute is what is a litigation unit (broad modern rule of 2 Restatement/transaction or narrow rule of evidence); ? Majority view has to force its answer to fit into the narrow view even though it is a broad view because the narrow view has been the predominant Illinois law, majority says its all about process; while concurrence says case 1 is about actual taking/property rights/substance and case 2 is about procedural due process; may be pp considerations of trying to change narrow to more broad view in interest of efficiency) Consistency: (CP and Compulsory Counterclaims) (Martino v. McDonald’s System, Inc.: suit 1, fed. crt, MC against Mart for breach of contract; suit 2, Mar brings antitrust against MC; could raise res judicata argument or Rule 13(a) argument for waiver of compulsory counterclaims in a summary judgment motion (would be able to raise it in an answer and move for judgment on pleadings under 12(c) and/or move for summary judgment) What is McDonald’s 13(a) argument? That Mar should have brought up issue in counterclaim during first suit, “a pleading shall state as a counter claim any claim which at the time…..” it is compulsory because it arises out of same TORO; Why doesn’t it work? Because rule applies to pleading and Mar never filed pleading (answer) Apply STD: 1. valid final judgment on merits? yes (even though it was a settlement, it was a judgment on the merits in that it was a consent judgment; in practice, consent judgment is a judgment on the merits) 2. same parties? Yes 3. same litigation unit? Yes b/c broad TORO view of federal court applied Why was this case in the casebook? 1. -CP precludes cases rising out of same TORO; Martino explores “litigation unit” when sides change (ie not only precluding claims, but also counterclaims) 2. -this case also emphasizes goal of consistency (first case was efficiency) 3. –just because there is no compulsory counterclaim rule in your state, does not mean that you will be allowed to raise that claim later on because of CP/if that claim would end up creating a judgment that is inconsistent with original judgment, then it may be barred by CP under Martino v McDonald rule Defenses, Counterclaims and Res Judicata Flowchart: Defense & Claim Yes Defense Only? R13(a); Same TORO? More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 36 of 52 Yes. Compulsory No. Permissive. No Yes No Yes • • “Between the Same Parties” (Issue of Privity) (Searle Brothers v. Searle: Suit 1, W sues H for divorce; W wins house; Suit 2, children/Searle Brothers sue W for their ½ interest in the house; W argues a preclusion defense in S2; according to H, house owned by partnership: Woodey, & Searle Brothers (Rhett, Rance, Randy); Privity: so closely connected such that we will consider them to be parties; crt says no privity here based on property/successor relationship; no privity based on agency; no privity in general; thus, not same parties; thus, no CP; Dissent: argues that privity analysis could fall the other way) Privity: so identified in interest with another that party represents the same legal right YES PRIVITY; YES CP: -Administrator’s claim against tobacco co. barred after survivor’s of decedent brought action against tobacco co. and lost -Insurance Co. claim against tortfeasor barred after insured had lost previously in an action against the same tortfeasor -County Board of Education could not sue D after attorney general had sued D and entered into a consent decree with D (CBOE and attny. gen. In privity) -Homeowner’s group could not sue a nuisance after same homeowner’s group encouraged city to sue the nuisance and had testified in the city’s action against the nuisance NO PRIVITY; NO CP; -Mother’s alimony different from child support; child allowed to sue father for support -Distributor could be sued in products liability action even though manufacturer had already been unsuccessfully sued -Accused Father and son entitled to separate hearings as defendants in motor accident litigation even though P had already successfully sued the son -No privity b/t police acting in their individual capacity and the city-employer; separate suits allowed RAISING CP: -as an affirmative defense, 8(c), in answer -Rule 10 exhibit prior judgment -12(c), motion on the pleadings Use it or Lose it Nullify prior judgment? Triggered by Pleading? D may bring claim when D chooses More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 37 of 52 Issue Preclusion: (aka Collateral Estoppel) (distinction between issue and claim is that in claim, you do not have to had raised the claim in the first suit for it to be precluded; whereas in issue, you had to have raised it in the first for it to be precluded) Standard: 1. an issue of fact or law (same issue) 2. actually litigated and determined 3. by a valid, final judgment whose 4. determination is essential to that judgment is conclusive between the same parties • “Same Issue”? Substantive Identity: -Remember not to define too broadly; issues are more specific Procedural identity: -Burdens matter (if harder BOP in Suit 1, precluded in Suit 2; if lower in Suit 1, not precluded in Suit 2); if if different BOPs or different procedures, then IP affected • “Actually litigated and determined” (Illinois Central Gulf Railroad and Parks: Suit 1: B(personal injury) and J (loss of consortium) against RR Suit 2: J (personal injury) against RR RR cannot use analog to 13/compulsory counterclaim because this was not a counterclaim RR cannot use CP because Indiana applies a narrow view of CP which requires same evidence; lawsuit for loss of services requires different evidence than a personal injury lawsuit; therefore, not same litigation unit and CP does not apply RR can try to use issue preclusion: try to say that jury decided issue of contributory negligence when they decided against loss of consortium in Suit 1, and they found that RR was negligent because they found in favor of Bertha; RR would argue that there was negligence, causation and damages for her, but nothing for J, so, jury must have decided that he was contributory negligent, and thus, not entitled to bring a suit against the RR in suit 2; but crt says they did not necessarily have to find him cont. negligence, the other reason why he didn’t get money was maybe they just didn’t find any damages for him; Summary: if we don’t know if it was “cont. negli” or “no damages” in Suit 1, then that issue was not “actually litigated and determined”, thus, no IP in Suit 2) • “Essential to the judgment” -Test: 1. Strike out issue (of fact or law) in Suit 1. 2. Is the result still the same? Does the same party still prevail? (Halpern v. Schwartz Suit 1/TC: Halpern (D) had committed three acts of bankruptcy; determined to be legally bankrupt. 1of 3 acts of bankruptcy was a transfer with the intent to hinder and delay creditors. Suit 2/Schwartz (P), a trustee in bankruptcy, brought suit to deny Halpern/D a discharge in bankruptcy, because she had caused a transfer of debts with the intent to hinder, delay, or defraud creditors. P's motion for summary judgment was granted. D appealed. Crt says: alternative independent grounds in bankruptcy=no issue preclusion.) (Winters v. Lavine Suit 1: Winters (P) sought Medicaid compensation for the services of a Christian Science practitioner. Lavine (D), representing the State of New York, refused to pay. P sued in New York State court, where the claim was rejected; P had no right to compensation under the statue and the failure of the statute to cover her claim did not violate the first amendment; and her proof of illness and treatment was inadequate. Suit 2: P then sued in federal court. The court held that both issues were precluded. P appealed. Crt says: alternative independent grounds are both necessary so IP is okay.) -Problem of multiple sufficient grounds, 2 options: 1. no preclusion (Halpern, Restatement 2d, minority rule) 2. total preclusion (Winters, majority rule, Restatment 1) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 38 of 52 *Policy reasons for adopting one reason over the other (need to go back to cases to understand this:) 1. worldview about point of litigation 2. Notions of what ligigationis all about 3. strategy 4. incentive 5. Was trier of fact rigorous because facts or reason of judgment mattered or not? 6. What about appeal? Did the losing party just figure that the time and expense of appeal was not worthwhile. 7. That equation changes if there is an appeal. B/C if there is an appeal and both grounds are affirmed, the scale tips. 8. The additional act of affirmation of both grounds by an appellate court improves the indicia of reliability. 9. If one ground is affirmed, it will be given preclusive effect. 10. If one ground is reached but not determined, it will also be given preclusive effect because of the additional appellate scrutiny 11. p 842, note1: there is no preclusive effect b/c no such issue in state court 12. #2 state ct dec will be preclusive b/c already fully adjudicated 13. #3 under R.2d answer is no. If you are π and you are shot down on pj and smj, you probably don’t have much grounds for appeal. 14. #4 both would have preclusive effect. • Mutuality: (Every party must have their day in court) “It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard.” Blonder Tongue Laboritories, Inc. v. University of Illinois Foundation -Non Mutual Issue Preclusion -Non Mutual IP flavors: Offensive: usually used by p; the issue was already decided, so we shouldn’t have to go to trial again (d would use in a counterclaim); using IP to further ones claim Defensive: usually used by d; the issue was decided and I shouldn’t have to defend myself again; using IP to defend against opponent’s claim Policy Issue Differences: Defensive: we’ve already decided that not allowing non-mutual IP is inefficient b/c it increases incentive to sue D1-D3 separately (Blonder Tongue: non mutual defensive IP allowed) Offensive: also promotes inefficiency b/c it could help you to wait and see if another P wins and b/c D cannot run IP on you due to due process issues, dis-aggregation issues, and is unfair to D; so might want to say that we will allow offensive non-mutual IP only sometimes (Parklane Hosiery Co. v. Shore/Non-mutual offensive IP: Suit 1: SEC v. Parklane for false proxy statement; declaratory judgment for SEC, affirmed by 2nd district Suit 2: Shore v. Parklane for false proxy statement; P makes motion for IP based on “False proxy” issue; motion denied; 7th amendment; reversed by 2nd circuit issue here is whether offensive non mutual offensive IP allowed since Blonder Tongue already said non mutual defensive IP allowed; SC said here it should be allowed sometimes: ie when it is inefficient to not allow it and when it is not unfair; crt does not adopt blanket rule always allowing non-mutual offensive IP; the std it establishes is based on disc. of court in considering factors of efficiency, fairness (should D have expected to be sued again, did D defend vigorously, inconsistent judgments, procedural opportunities,) joinder; Applying these factors to the present, court allows nonmuttua offensive IP) (Statefarm Fire & Casualty Co v. Century Home Components: facts complicated; non mutual offensive IP Suit 1: Pac Bell v. Century: P wins jury v for was reversed & remanded; then π won. Suit 2: Sylwester v. Century: D wins wins Suit 3: Hess v. Century: P wins π wins. Suit 4: Pac Bell II: π wins and is affirmed. Current suit/Suit 4: 48 Ps v. Century Out of 4 cases, 3 went to the π. So, now all the π’s waiting to sue, turn around to amend their complaints so that the look exactly like Hess and PacBell. They then move for offensive collateral estoppel. They basically are saying that they don’t want to be liable for someone elses mess. No SJ based on IP b/c inconsistent judgment; would be unfair to D) It went up to the Oregon high court More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 39 of 52 Oregon SC was worried about the Currie hypo: 25 claims go one way, the 26th goes the other. The limited instance of estoppel encouraging a unfair result. So, in a trainwreck if the first 24 are for the railroad, but π 24 wins. It’s just not fair to allow the following 25 π’s to claim estoppel aginst the rr b/c the verdct was inconsistent. If the knows of a witness but can’t find her, he can ask for a continuance If didn’t know and all of a sudden you find the mystery witness? See if there is a way to re-open the judgment below. That could affect the preclusive effect of the lower court verdict. But, the basic problem perists. The Supreme Court of Oregon said they cannot ignore incongruous results. You cannot cherry-pick the cases Policy: search for truth, whatever, there has to be a level of confidence in the decisions of the court and/or jury. The doctrine of estoppel assumes a certain level of institutional competence under the factors of essential factor, fully litigated, etc. State farm case says that if the confidence in the integrity of prior determinations, you cannot ignore it. You cannot say that Hesse is worthy of more deference that Sylvester. In such case, no offensive use of collateral estoppel. Similar to the consistency issue in Parklane But, what if Hesse was case#1? The there is no inconsistency so everything goes forward under the normal rules of estoppel. All things being equal, if you are lucky enough to be first in time, you may get an advantage. This begs the question of whether non-mutual offensive collateral estoppel is a fair process. Must review factual and procedural record to see hwo the court exercises its discretion; but appeal is conditioned on abuse-of-discretion standard. Hypo p. 852 2a: Rush City v. Maple Heights City loses first suit Then the passenger sues again for $1.5mm This is different ’s and same π’s so it’s defensive estoppel The incentives are so different between case 1 and case 2 that it would be unfair to import the facts of case 1 into case 2 2b probably no preclusion 2c Why no preclusion? Probably b/c the burden of proof is different. Case 1 was a adminsitrative deal with preponderence standard Case 2 is a criminal case w/higher burden Also, the accomplice was not a party in case 1; So, diff parties and diff burden; so non-mutual estoppel is not available. 3 Non-mutual estoppel categorically unavailable against the U.S. 4, p 854 Car accident, drivers sue each other Jury comes in 70/30 comparative negligence Passenger sues both drivers 4a Quest. 1: Can passenger assert preclusion against the 2 drivers as to negligence? Probably yes b/c same stakes and both had full and fair chance to litigate; 4b What if passenger just sues one driver? Did he have full and fair opportunity; But what happens if passenger sues a driver in a state that has several liability? In the case b/t the 2 drivers, the negligence allocation is 70/30. Now can p1 say: I want to use non-mutual estoppel against driver 1 AND I shouldn’t be bound by the 70/30 b/c I want this driver to pay all my bills. Can π tell drive that he is precluded from re-litigating his negligence? Yes, because 2nd driver was a party to a fully litigated essential issue non mutual parklane factors Can π argue that driver 1’s liability is 80%? More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 40 of 52 Driver 1 will say: I don’t want to be in this lawsuit, but if I am forced to, there is no reason for you to hold me liable for more than the 70% In a jurisdiction that recognizes only several liability (not joint), we must ask: 1) is it the same issue that would be allocated the same way?; and 2) Passenger was not a party in the first case. If we are going forward with non-mutual offensive estoppel, the passenger can’t bring suit but I don’t know why! P. 860 #2 1) S v. W necessary, essential to the judgment, determined finally by jury 2) S v. W Same thing here; no state farm inconsistency problem 3) B v. W court denies preclusion to the effects of 1&2 welch finally wins 4) So, should the appellate court set aside the verdict in #3 b/c the court should have granted issue preclusion? 5) Assume non-mutual offensive collateral estoppel issue preclusion is allowed and all parklane factors apply 6) Did the court err in not allowing issue preclusion in the 3rd case for the items were determined in #1 & 2? 7) Full & fair opportunity to litigate in 1&2 8) Can the court invoke preclusion in case 3 for the issues decided in 1&2? 9) Look at the policy rationale for issue preclusion: a. Judicial economy b. Efficiency for the parties c. Discretion of the court – cannot abuse judicial discretion d. Respect for the jury; consistency of judgment 10) The burden to overturn #3 is judicial abuse of discretion; assume that the record does not show a careful exercise of judicial discretion. 11) Is B entitled to preclusion or is it ok that the judge ruled incorrectly? 12) Answer: on appeal you bring out all the underlying policy reasons that show preclusion shoujld have been granted and try to convince the appeals court that it was so clear that you it should have been granted preclusion; Maybe the π lawyer in #3 should have gone for a writ of mandamus as soon as the judge denied preclusion. But, the appellate court might reverse anyway based on stare decisis. 13) Is this the basis by which cases should be determined? Should the results of the first trial always set the standard? 14) See r2d judgments #29 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 41 of 52 Res Judicata Checklist: -Apply Law of Original Court 4 permutations: Court 1 Court 2 Authority State State FF & C/Art. IV, §1; 1738 State Federal 1738 Federal Federal 1963, federal common law Federal State Supermacy Clause, Article VI, cl 2 -Claim Preclusion: 1. A valid, final judgment on the merits 2. Precludes all claims arising out of the same litigation unit 3. Between the same parties Raising CP: -as an affirmative defense, 8(c), in answer -Rule 10 exhibit prior judgment -12(c), motion on the pleadings -Issue Preclusion: Standard: 1. an issue of fact or law (same issue) 2. actually litigated and determined 3. by a valid, final judgment whose 4. determination is essential to that judgment is conclusive between the same parties -Test for “Essential” 5/10/2004 1. Strike out issue (of fact or law) in Suit 1. 2. Is the result still the same? Does the same party still prevail? Flavors of Non-Mutual IP: Offensive: using IP to further one’s claim; usually not efficient Defensive: using IP to defend against opponent’s claim; usually efficient Discretion: Efficiency Allow non-mutual defensive? If you have the mutuality requirement, P has no incentive to sue all Ds together b/c previous losses in previous suits have no impact on subsequent suits b/c difference in parties in those subsequent suits would not allow IP by D against P; therefore, non-mutual defensive issue preclusion promotes efficiency whereas mutuality does not Allow non-mutual offensive? If you have a previous win, next P has no incentive to keep waiting for win to take advantage of the win b/c different parties and no IP; doesn’t matter how many wins, b/c if you mutuality requirement regardless of win or loss you can’t take advantage of it b/c of the same parties requirement; if nonmuttua offensive IP allowed, you would have more incentive to wait to win and then use that win to IP in the next suit, also inefficient and unfair if you have multiple losses and then 1 one and P uses that win to IP against D in the subsequent suit Discretionary.Factors to consider in allowing it: Fairness Did D defend vigorously? Should they have known? Inconsistent Judgments Procedural % Could P2 have joined P1? More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 42 of 52 II. Complexity: Joinder (Claims and Parties) • Joinder of Claims: -Generally allowed -Rule 18/Joinder of Claims -Rule 13/Cross Claims -Rule 42(b)/Judge may sever for convenience Must have SMJ over it/Supplmental: 1. basis of original jurisdiction 2. identity of the party seeking to invoke jurisdiction 3. the rule authorizing the joinder • Joinder of Parties -Rule 20/Permissive Joinder -Rule 14/Impleader (not compulsory; called third party liability); impleader will not affect diversity, but must have independent jurisdictional basis -Rule 19/Compulsory Joinder (may make motion to dismiss at any point, if pre-answer is a 12(b)(7) • Standard for Impleading/Permissive Joinder:Reimbursement: 14(a): 3rd party must be secondarily or derivatively liable to D in the event D is held liable to P; if D has to pay out P, then 3rd party has to pay out D and the only reason why you would have to pay out D would be under relative substantive law (right of contribution/reimbursement relationship) Impleader; okay if that person “may be liable for all or part of the P’s claim against the third party”; reimbursement relationship under contract or tort law; if substantive tort law allows J & S liability and there is a situation where 3 people are involved in the harm, one D can implead the other Ds/right of contribution issue (Watergate Landmark Condominium Unit Owner’s Association v Wiss, Janey, Elstner Associates: Condo Associa. V. Wiss (Engineers)/warranty and negligence plans; Condo Assoc. v. L & N (Real Estate Management)/breach of management contract and breach of agency duty; (ie for recommending Wiss and not fowarding Wiss warnngs; L&N impleads Brisk; L&N v Brisk; L & N makes cross claim against Wiss; “a proposed 3rd party plaintiff must allege facts sufficient to establish the derivative or secondary liability of the proposed 3rd party defendant.) (Owen Equipment & Erection Co. v. Kroger: third party may not be impleaded merely because he is liable to plaintiff) • Standard for Compulsory Joinder: (Standard for deciding whether or not to apply Rule 19/for deciding whether a person has to be joined) 1. Necessity 2. Joinability (if joinable, okay then join them) 3. Indispensability (if not joinable, indispensable?) (higher level than necessary) 3rd party is “necessary” if: -Complete relief cannot be granted w/o party present: benefit to P (to get full amount of damages); benefit to D (pay off everybody at once); benefit to society (costs of litigation, efficiency) -Inconsistent judgments for one of the parties: benefit to D and society -Impair 3rd parties interest: benefit to 3rd parties 3rd party is “joinable” if there is: SMJ PJ Venue P. 894 Hypos A Fed Q.--> B Ill. State Ill More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 43 of 52 1367 (a) same case /cont.; (b) div.; (c) disc. 1. yes, unless some other reason – supp juris under c 2. Not same case or controversy; so 1367 doesn’t apply, so NO supp jurs 3. Is it the same case or controversy? What was the test under Gibbs v United Mine Workers? cCommone nucleus of facts. Why doesn’t 1367b not bar the claim? B/C 1367b only applies when the claim is derived from a diversity claim? 4. Diversity claim; no independent base to go atgainst C. It’s the same case or controvery, butwe don’t have comlete diversity By implication, federal questni]ion overrules finley claim. 4. Need more facts; apply international; always look at personal urisidici=cion 5. State court case with frec 6. federal= cou &s7]&se7oao7 U98hderu9nnnsoee-7 7. 3rd party is “indispensable” if: -Equity and Good Conscience/4 factors: 1. prejudicial to person or other parties 2. prejudice can be lessened or avoided 3. judgment rendered in absence adequate 4. adequate remedy if action dismissed for nonjoinder /availability of another forum (Helzberg: H seeks injunction against VW for breaching contract; VW makes rule 19 motion for failure to join indispensable party (Lords) but cant be there b/c jurisdictional issue; crt says not indispensable How do you differentiate b/t necessity and indispensability? Necessity is rule 19(a) and indispensibility is Rule 19(b)/equity & conscience and 4 factors to consider (multifactor test) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 44 of 52 Joinder Checklist: Claims: -Rule 18/Joinder of Claims -Rule 13/Cross Claims -Rule 42(b)/Judge may sever for convenience -Must have SMJ over it/Supplmental: Parties: -Rule 20/Permissive Joinder -Rule 14/Impleader; Reimbursement Test -Rule 19/Compulsory Joinder (may make motion to dismiss at any point, if pre-answer is a 12(b)(7) Standard for deciding whether or not to apply Rule 19/for deciding whether a person has to be joined? 1. Necessity (complete relief, incomplete judgments, impairment?) 2. Joinability (is there SMJ, PJ and Venue?) 3. Indispensability (adverse affects?) 4 factors: 5. prejudicial to person or other parties 6. prejudice can be lessened or avoided 7. judgment rendered in absence adequate 8. adequate remedy if action dismissed for nonjoinder /availability of another forum More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 45 of 52 I. Complexity: Class Action • Why have class actions? Efficiency & Collective Action Problems • Focus Shift: Client-Lawyer (driven by lawyer rather than client) Litigation-Settlement Power From Public Actor-to Private Actor From Legislature-to Courts • Rule 23 • 4 Threshold Requirements/Prerequisites 23(a) (Absolutely Necessary to Apply Each Requirement) 1. Numerosity (rests on Rule 20, ie you might as well join than sue as a class if not a problem) 2. Commonality (something common to drive the litigation) 3. Adequacy (good lawyers) 4. Typicality(representative is member of class, stake in litigation) • After threshold met, which type are we talking about/Classification: 23(b) (b)(1): glorified Rule 19, including inconsistent ruling Risk of: (b)(1)(A): incompatible standards of conduct (defendants) Do inconsistent judgments necessarily mean incompatible standards of conduct?No. (b)(1)(B): deciding other’s interests who are not parties or impair their ability to protect their own interets (plaintiffs) will the company go bankrupt? (b)(2): injunctive or declaratory relief; no money damages (civil rights case) (b)(3): questions of law or fact common to the members predominate over questions affecting individuals AND superior litigation method judged by (small claims or mass torts): (b)(3)(A): interests of members in individually controlling separate actions (b)(3)(B): litigation already commenced by or against class members (b)(3)(C): desirability of concentrating claims in particular forum (b)(3)(D): difficulties managing a class action • Certification Issues: 23(c) (c)(1): court shall determine whether to maintain class action whenever it feels like it (c)(2): (b)(3) CAs must have best notice practical under the circumstances, reasonable effort to identify members. Notice includes: (c)(2)(A): opt-out clause (c)(2)(B): notice that failing to opt out means you are bound by judgment (c)(2)(C): option to enter appearance through counsel (c)(3): b-1 and b-2 type CAs shall describe members of the class, b-3 judgments shall include those to whom notice was given and had not opted out (c)(4) class may be brought” (c)(4)(A): with respect to particular issues (c)(4)(B): or may be divided into subclasses • Dismissal/Settlement 23 (e): If you want to dismiss case or create settlement, court must approve More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 46 of 52 • “Commonality and Typicality”: (Alco: D is Alco; claim is federal securities violation; P is Corporation of America/Marks; P makes motion for class certification; prerequisites satisfied because “the fact that each class member purchased shares at different times and for different reasons does not mean that there is no commonality”, rather there was a “common scheme of misrepresentation”/fraud on the market theory; and classification B3 satisfied b/c cannot be B2 b/c money involved and cannot be B1 b/c none of the rationales that justify compulsory joinder under Rule 19 are here; B3 a superior litigation method b/c there are 4,000 members; ensure integrity of market, idea of “fraud on the market” also takes care of/satisfies the B3 nature • Decertification: (Rhone-Poulenc Rorer, Inc.: Hemophiliacs sue on 2 grounds: Hepatitis B theory and delayed screening theory; Hs want to certify a class; make motion to certify class; R makes motion for writ of mandamus; crt wanted to certify class on certain issue only: negligence and subsequent parties could use IP after 1st suit decided (cannot certify for causation b/c of issue involved in contraction of HIV/AIDS); Issue Preclusion:If jury found Ds negligent, who would use the issue preclusion how? Mutual offensive issue preclusion for 2-n plaintiffs in subsequent suits; If jury found Ds not negligent, who would use issue preclusion how? Mutual defensive issue preclusion for Ds in subsequent suits; When granting writ of mandamus, have to decide if there would be irreparable harm: in this case, court says there would be a huge pressure to settle, and cannot appeal settlement; but dissent says Ds could hold out and settlement is not an issue; What about being crazy wrong? Forcing D to stake everything on one trial; if D loses one trial, IP in all the next trials; also violates Erie (no federal common law) b/c every state would have to hear case on same negligence standard/confusing combo of negligence law; did not “carve at joint” , cant split up all these issue and then expect juries to look at these different issues; met prerequisites and classifcation, so why did court refuse to certify? Because of original judge’s decision to allow the class action for issue of negligence only) • “Adequacy” (and IP exception) IP standard rule is that victim of motion for issue preclusion must have had her day in court; but, exceptions to the rule: a privity/if you are actual partner or agent you may have had your day even if you were not present b. class action (P1 in certified class against train; train wins; Pn is issue precluded) However, there is also an exception to the exception: if class was not adequately represented, then may not be issue precluded (Hansberry v. Lee: Suit 1, Illinois state court: Mrs. Burke sues Klieman and 3 other defendants; parties stipulate that 95% signed racially restrictive covenant; judgment for P that 95% of people signed this racially restrictive covenant Suit 2, Illinois state court: Lee sues Hansberry (buyer) and Mr. Burke (seller) to enforce the covenant, to not sell to black people; want to use offensive IP from first suit that 95% people signed the covenant and so it was a valid covenant Illinois SC says: 1. Burke was a class action 2. Hansberrys and Seller were members of that class SC says there has to be adequate representation (class exception to IP/usually IP allowed and then adequacy exception to the class exception/where IP is not allowed if P not adequately represented in the first suit) A. Basic Holding 1. It violates DPC to bind members of class who are not adequately represented B. Corollaries 1. My collaterally attack class litigation on grounds of inadequate representation 2. If adequately represented then a class action can bind members) • Jurisdiction: (Phillips Petroleum v. Shutts: Shutts brought class action suit against Phillips for unpaid interest, Kansas state court; Phillips argues lack of PJ and horizontal choice of law; judgment pro Shutts; idea is that Phillips is keeping money that some people think under contract they should get; Weird flip: PJ over Ps, not Ds; idea of consent and use of notice; not clear if all Ps consented as they have done in all of the other PJ cases we have looked at; can this be done? Affirmative grant of power/statutory? The class action rule gives them authority to exercise PJ over Ps, acts as the analog to the long arm statute; Negative Limitation/constitutional? 14th Amendment b/c you have to look at forum state’s law;; focus on constitutional limits/same as PJ over D? no b/c different burdens on P than D; if asking for money, the test =notice (notice and opportunity to opt out/exclusion of return to sender folks; if not asking for money, then have a 23b1 or b2; Choice of Law: D argues court picked wrong law, Kansas, b/c none of the leases in Kansas; aka “horizontal choice of law”: which state’s law do you apply? there must be enough contact with that state so that it doesn’t seem arbitrary or unfair to apply the law of that state and it might be that multiple state’s laws are applicable; SC says remand and go back to decide choice of law) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 47 of 52 • Notice in Class Actions: Statutory: Normal: notice to D Unusual: notice to other Ps (23(c)(2)/notice and opt out requirement for 23b(3) actions) Constitutional: Mullane Comparison: Does Rule 23 require more effort than the constitution/Mullane (“reasonably calculated”)? Yes b/c b(3) requires opt out and requires “individual notice” Does Rule 23 require less than constitution? b(1) and b(2) no notice required at all • SMJ in Class Actions Either 1331/Federal Question or 1332: Diversity -Only complete diversity of class representatives requires, not whole class -Amount in Controversy: Aggregation? Normally, no What if class P satisfied? -1367 complication: does not include Rule 23 in the taking away part of 1367(b) (originally Zahn: all class members must satisfy individually the amount in controversy) • Settlement: (often driven by Ds, claim preclusion) (Amchem Products v. Windsor: settlement approved by TC; 3rd circuit reverses; goes up to SC on cert; What flavor? 23(b)(3)(A)-(D); especially (D) regarding management problems Settlement: per 23(e), need court approval for settlement to protect interests of those not there b/c res judicta effects on future litigants; what difference does a “settlement” make? Not just talking about commonality of interests, but commonality of gains— but SC says you must focus on commonalities b/4 settlement, not that arise during or after/court does get involved in these settlement class actions; adequacy also affected b/c settlement reviewed by judge, but also issue of how judge knows, also an issue of conflict of interests/risk of collusion • Relief: Attorney’s fee: % of cut/contingency fee hour based with plus factors Getting relief back to Ps Fluid class recovery Communities for Equity v. Michigan High School Athletics Assoc. i. P sought to bring class action on behalf of girl athletes who’d allegedly been discriminated against. ii. Rule: Class certification prerequisites under Rule 23 must be rigorously analyzed by the court. • Should be certified b/c requirements of Rule 23 are met; • Only potential problem is potential conflicts could arise b/t athletes of different sports; can be solved by creation of sub-classes • Heaven v. Trust Company Bank i. P seeking to certify class against D for failure to comply w/strict disclosure requirements of Consumer Leasing Act (preprinted car lease); D counterclaimed w/default of P ii. Rule: The presence of counterclaims requiring individual defenses can be the basis for denying class certification under Rule 23(b)(3). • Tr ct denied certification even though 23(a) met b/c counterclaim would involve individual defenses • NO abuse of discretion; denying certification might be OK b/c: o Individual defenses would make ct engage in many factual determinations o Some D’s whose exposure to counterclaims would exceed potential recovery More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 48 of 52 Class Action Checklist: Rule 23 23(a)/Prerequisites: 1. Numerosity 2. Commonality 3. Adequacy (IP exception if inadequate representation) 4. Typicality 23(b)/Classification: (b)(1): glorified Rule 19 (b)(1)(A): incompatible standards of (b)(1)(B): deciding other’s interests who are not parties or impair their ability to protect their own interets (b)(2): injunctive or declaratory relief; no money damages (civil rights case) (b)(3): questions of law or fact common to the members predominate over questions affecting individuals AND superior litigation method judged by (small claims or mass torts): (b)(3)(A): interests of members in individually controlling separate actions (b)(3)(B): litigation already commenced by or against class members (b)(3)(C): desirability of concentrating claims in particular forum (b)(3)(D): difficulties managing a class action 23(c)/Certification Issues: (c)(1): court shall determine whether to maintain class action whenever it feels like it (c)(2): (b)(3) CAs must have best notice practical under the circumstances, reasonable effort to identify members. Notice includes: (c)(2)(A): opt-out clause (c)(2)(B): notice that failing to opt out means you are bound by judgment (c)(2)(C): option to enter appearance through counsel (c)(3): b-1 and b-2 type CAs shall describe members of the class, b-3 judgments shall include those to whom notice was given and had not opted out (c)(4) class may be brought” (c)(4)(A): with respect to particular issues (c)(4)(B): or may be divided into subclasses Dismissal/Settlement 23 (e): If you want to dismiss case or create settlement, court must approve Jurisdiction: Notice Reasonable Opt Out SMJ/PJ Diversity Aggregation for Amount in Controversy Settlement Relief More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 49 of 52 III. Complexity: Erie The constitution is not self-executing. It must have statutory support. A. State Courts as Lawmakers in Federal Courts: 1. Historical Context • 2 ideas to think about: 1. vertical choice of law (when non federal claims are heard in federal courts, what law applies?) and 2. arbitrage (there must be some difference in federal or state law, otherwise parties would not be fighting about it; someone is exploiting the difference) • PreErie: (Swift v. Tyson (1841) : (“Rules of Decision Act didn’t include judge made state law”) P sues D for bill of exchange contract; suit brought in NY Fed. Crt., diversity SMJ; NY state common law says the exchange contract not enforceable; question was whether fed. crt must respect NY common law; crt said Rules of Decision Act, USC 1652 governed: “laws of several states shall be considered the rules of decision where they apply”; said “laws” meant state statutory laws, state judge interpretations of state statutes and c-law peculiarly local usage—but not judge made common law and so they did not have to respect it; said they could make up federal common law when they did not have a constitutional or statutory grant to do so) • Erie: (Erie v. Thompson: P/Thompson hurt while walking home on RR tracks; sues RR for negligence; case brought in SD of NY; what standard of negligence to apply? if apply Penn, P needs to prove extraordinary negligence; if Federal, ordinary negligence; P would want federal b/c regular negligence easier to prove (arbitrage); distr. Court applied fed. law and ruled for P, but SC Flips Swift) 2. Constitutionalizing the Issue • Reasons for flipping Swift 4/30/2004 1. Statutory: SC says “laws of several states” does include judge made common law; that Swift got it wrong 2. Policy: no uniformity b/t states anyway; can’t distinguish b/t “general” and “local” law 3. Unexpected problems from Swift decision: forum shopping (arbitrage) b/c of difference in state and federal law and inequitable administration of the laws b/c P and D inequity, turns on in state v. out of state biases, possibly against out of state P b/c in state can choose either state or federal court—whichever is more favorable to P and other biases; also value of respecting states, equal protection; in Swift, non-citizens could discriminate against citizens 4. Constitution: federal courts are potato heads, the constitution does not give federal courts the power to create federal common law; 5. Still can apply federal court procedures (suggests “substance”/”procedure” distinction)(Most clearly stated in Reed’s concurrence: “….but no one doubts federal power over procedure” (Concurrence: didn’t have to get that deep, could have just said that they misinterpreted the RDA) • Continuing significance 1. Is the constitutional limitation on the federal government or on the federal judiciary? Judiciary (so what Erie said about constitutional limits on power is not necessarily true for Congress; it was a slight overstatement) 2. Could Congress pass a national commercial law now? Yes and authority is interstate commerce clause 3. If yes, does that mean federal judiciary can create that law under diversity jurisdiction? Not necessarily—just b/c congress can do it, does not mean federal judiciary can • Choice of law: -Horizontal (Shutts; Transfer and FNC) -Vertical (Erie) (federal v. state law); only time Erie applies, question of which law to apply -Both Ways (Klaxon: respect state law, CA conflicts law must be respected and points to CA substantive law b/c that was where harm occurred/Erie pointed to Penn even though case heard in NY b/c harm occurred in Penn) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 50 of 52 B. Limits of State Power on Federal Courts: 1. Interpreting Erie: (Guaranty Trust: D wants to use NY SOL; P wants to use federal equity doctrine of laches b/c NY SOL Passed) -Rejected substance v. procedure idea as entirely determinative Remember Post Erie: Must apply state law, which includes state judge made law;No constitutional power to make up general federal common law; But still can apply federal court procedure (suggests “substance”/”procedure” distinction)) Doctrinally New Test: ? Outcome determinative standard which generally favors state law (sub. v. proc. not gone, but put aside: Judge Frankfurter says it’s just a matter of semantics; but “new and improved” doctrine is just as doctrinally unclear—is the new and improved really new and improved????)(why not do away with diversity jurisdiction????) Application: NY SOL applies b/c to do otherwise would affect outcome of case; to apply federal rule, case would go forward; to apply NY rule, case dismissed; outcome should be “substantially the same” or does rule “significantly affect the result of the litigation” Aftermath/Progeny of Guaranty: Domination of state law: (Guaranty getting rid of arbitrage) Tolling of statute of limitations. Ragan. (filing complaint v. services of process) Bond for shareholders derivative suits. Cohen. (no bond v. bond) Requirement that corporations pay taxes to get into court. Woods (silence v. taxes required) Enforceability of arbitration agreements. Bernhardt. (must enforce v. not-enforced) (Byrd: Substantive issue: is Byrd an independent contractor or EE? If EE, then worker’s comp. If IC, tort suit allowed; Blue ridge wants Byrd to go to worker’s comp Procedural issue: judge or jury decides?; federal law: jury decides; state law: judge decides) -Didn’t abandon sub. v. proc., but advocated for weighing of state v. federal interests Doctrinally New? Balancing test: First: ask, Is this outcome determinative: no; regardless of who decides, could go either way Second: ask if there is a countervailing federal interest in applying federal law; if there is, apply federal law Application: Consideration of 7th Amendment rights; federal rule applied, jury decides; cost benefit analysis—small cost of possibly diverging from state outcome and high benefit of allowing for jury trial; benefits outweigh costs 2. Deconstitutionalizing Erie: • Connect the Concepts/Tests Erie: procedure v. substance; forum shopping; inequitable administration of laws Guaranty: outcome determinative Byrd: balancing test (state v. federal interests) (Hanna: The Erie doctrine does apply to the Federal Rules of Civil Procedure regarding service of process if the twin aims of discouragement of forum shopping and avoidance of inequitable administration of the laws are not involved; ie service proper per Rule 4; improper per Mass. Law; vertical choice of law problem) How to decide when Erie question involved: -Spider Sense: 1. federal court deciding state law claim 2. arbitrage More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 51 of 52 Plumer’s Argument (based on Guaranty Trust): if we applied federal law in this context, case would be forced to go to trial; however, if apply Mass. Law, then SJ motion survives; thus, it is outcome determinative What’s new? Apply Guaranty Trust? No; Do not buy any difference in outcome b/c any little difference could lead to an outcome difference Apply Blue Ridge? Cited approvingly to emphasize that outcome determination is not a talisman Hanna’s Analysis: A. Rereading of the Twin Aims of Erie: (going back to Erie and de-emphasizing Guaranty and Byrd) 1. discouragement of forum shopping 2. inequitable administration of the laws (non-citizens taking advantage of citizens b/c if noncittize a P, then they can decide to sue in either state or federal court and if P chooses state court, D who is a citizen cannot remove to federal court b/c of the no local defendant rule) B. Analysis Based on REA 1. Ask if Rules Enabling Act is constitutional?(REA: congress grants to SCT power to issue rules of procedure) this is a “gimme” b/c it has been held that it is constitutional) 2. Ask if Federal Rule itself in scope of REA? (if it is substantive, it probably goes beyond scope) also a “gimme” b/c it turns out that every federal rule that has been passed is w/o scope of REA (does not overrule Ragan b/c no rule in conflict with SOL) Harlan’s dissent: majority’s analysis too completely immunizes FRCP; The test is whether the choice of rule would substantially affect those primary decisions respecting human conduct which our constitutional system leaves to state regulation. If so, Erie and the Constitution require that the state rule prevail, even in the face of a conflicting federal rule. Synthesis: LOOK AT FLOWCHART -basically, no problem if constitutional, statutory or FRCP -however, if federal judge made law that is unwritten, practice, custom, then must do ERIE/Byrd/Guaranty Analysis -Thus, ERIE is deconstitutionalized b/c emphasis on FRCP -Could characterize it as a “Preemption Problem”; if no conflict, apply both state and federal law; If constitution (trumps everything), statute (as long as constitutional), FRCP (legitimate under REA, is REA constitutional, is rule constitutional?)—federal law applies; if federal judge-made law/practice/custom/habits (choosing jury, standard for SJ, etc.), use twin goals (forum shopping and inequitable administration of law) of ERIE, outcome determination of Guaranty, and Balancing of Byrd 3. Avoiding Erie Focus on first box in Erie flowchart Ambiguity of Collisions b/t State and Federal Laws: More Inclined to Find Collision: Federal Wins (Burlington Northern v. Woods: FRAP/costs for frivolous appeals; Stewart v. Ricoh: 1404(a)/Transfer Statute) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 52 of 52 Less Inclined to Find Collision: State Law Wins (Ragan v. Merchants: state service of process satisfies SOL; Walker v. Armco: state service of process satisfies SOL; Healy v. Milwaukee: state allows both Ps and Ds to make settlement offers with penalty if refused party wins) Summary: No collision: “apply both”, but really means apply federal law if it applies, but usually doesn’t; so it basically means apply state law Less Inclined to Find Collision: state law More Inclined to find Collision: federal law 4. Ascertaining State Law (Apply when no collision or when doing the 3 part application test regarding federal judge made law) APPLYING STATE LAW What if law is not clear? Which state court? What if federal court’s guess turns out to be wrong? Other Options Guess what state courts would do Abstention Certification Leave error alone Correct Error Trial Court? State Supreme Court? Intermediate Court? SUMMARY: Use all the evidence to predict behavior of state supreme court. Bosch.