Thurs. Dec. 6

what is the procedural power of a court entertaining another sovereign’s

cause of action?

e.g.state court entertaining sister state

actionfederal court entertaining state action

P and D (both Pennsylvanians) get into a car accident in PennsylvaniaP sues D in state court in Virginia under Pennsylvania lawCan the Virginia court use Virginia’s:

rule on D’s duty of care?service rule?pleading standard?statute of limitations?rule on who has the burden of proof for

contributory negligence?

P and D (both Pennsylvanians) get into a car accident in Pennsylvania

P sues D in state court in Virginia under Pennsylvania’s wrongful death statute

Pennsylvania’s wrongful death statute says “a plaintiff may not sue for wrongful death under this statute more than 2 years after the death occurs”

Virginia’s statute of limitations for wrongful death is 3 years

P has waited 2 and a half years after the death to sue

two possibilities1) forum must use other sovereign’s law

2) forum has discretion to use its law or not

Borrowing statutes:

The forum state’s statute of limitations incorporates the time period of the state that provides the cause of action to keep plaintiffs from forum shopping

what is the scope of federal power over the procedure of federal

courts when entertaining state law causes of action?

P sues D in diversity in federal court in New York under Pennsylvania state law

- federal constitutional law (5th Amendment, 7th Amendment)

- applies, period

P sues D in diversity in federal court in New York under Pennsylvania state law

- federal statutes- 28 U.S.C. 1391 (venue)

- applies if within Congress’s power to regulate the procedure of the federal courts

P sues D in diversity in federal court in New York under Pennsylvania state law

- Fed. R. Civ. P. - 8(a) (pleadings standards), 11 (frivolousness),

12(b) (preanswer motions), 15 (amendment, relation back), 13, 14, 18, 19, 20, 24 (joinder), discovery rules, 56 (summary judgment)

- applies if within Congress’s power to regulate the procedure of the federal courts- and if compatible with restrictions Congress put on the Supreme Court in the Rules Enabling Act

P sues D in diversity in federal court in New York under Pennsylvania state law

- federal common law procedure - claim preclusion, issue preclusion- matters not covered by any enacted

federal law

- applies if within federal courts’ regulatory power over their own procedure- and not contrary to any limits Congress might have put upon federal courts

Cities Service Oil Co. v. Dunlap

Can a federal court in Texas entertaining a Texas cause of action

come up with its own rule concerning the burden of proof for the Texas action (ignoring the Texas

rule)?

Guaranty Trust v. York

can a federal court in NY entertaining a NY cause of action come up with its own limitations period (ignoring NY’s statute of

limitations)?

Hanna v. Plumer(U.S. 1965)

“When a situation is covered by one of the Federal Rules, the question facing the court is a far cry from the typical, relatively unguided Erie choice: the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions.”

“[T]he constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.”

- Congress passes a uniform statute of limitations applicable for all actions in federal court.- Can the statute be applied in diversity cases?

- Pursuant to the order of a Florida state court (that was ultimately affirmed by the Florida Supreme Court), Terry Schiavo’s feeding tube was removed- the US SCt denied cert.- In response, Congress passed Public Law 109-3, “An Act for the relief of the parents of Theresa Marie Schiavo.”- This act allowed Ms. Schiavo's parents to bring an action in federal district court concerning whether their daughter's federal constitutional or statutory rights had been violated as a result of the Florida courts' orders - constitutional?

28 U.S.C. § 2072. - Rules of procedure and evidence; power to prescribe (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. . . .

“Under the cases construing the scope of the Enabling Act, Rule [4(e)] clearly passes muster. Prescribing the manner in which a defendant is to be notified that a suit has been instituted against him, it relates to the ‘practice and procedure of the district courts.’ ‘The test must be whether a rule really regulates procedure,-the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.’ Sibbach v. Wilson & Co.”

Could a Fed. R. Civ. P. establish limitations periods for actions?

“[I]t is doubtful that, even if there were no Federal Rule making it clear that in-hand service is not required in diversity actions, the

Erie rule would have obligated the District Court to follow the Massachusetts procedure.”

“Not only are nonsubstantial, or trivial, variations not likely to raise the sort of

equal protection problems which troubled the Court in Erie; they are also

unlikely to influence the choice of a forum. The 'outcome-determination' test

therefore cannot be read without reference to the twin aims of the Erie

rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.”

Could a federal court sitting in diversity create a common law

limitations period different from that of the forum state?

The forum state has a statute requiring any out of state

corporation bringing suit to register to do business in the state

Should a federal court sitting in diversity in the state use the rule

too?

The forum state has a statute requiring anyone bringing a

shareholder derivative action to post a bond.

Should a federal court sitting in diversity in the state use the rule

too?

is the federal court sitting in diversity (or is there a cause of action with supplemental jurisdiction)?

if no – no Erie problem

is the relevant federal procedural law mandated by the U.S. Constitution?

if yes it applies

Is it a federal statute?if yes it applies if it is arguably

procedural

Is it a Fed. R. Civ. P.?if yes only questions are if it is arguably procedural and does it abridge enlarge or modify substantive rights

is it federal procedural common law?- remember, includes cases in which the federal court simply doesn’t have anything

if so look totwin aims of Erie

difference leads to forum shopping and ineq. admin. of

laws?countervailing federal interests?

Szantay v. Beech Aircraft (4th Cir. 1965)- P (Ill.) sues D Corp (Del./Kan.) in fed. Ct. in S.C. under diversity about crash in Tenn. of plane bought in Neb. and serviced in S.C. (also joined S.C. defendant that serviced plane)- S.C. has statute barring suits by foreign Ps against foreign corps on causes of action arising out of state- should the fed ct borrow it?

Walker v. Armco Steel Corp.(US 1980)

- according to forum state law, the statute of limitations tolls upon service- federal rule (inspired by Fed. R. Civ. P.

3) is that it tolls upon filing- which to use in a diversity case?

Rule 3. Commencement of Action

A civil action is commenced by filing a complaint with the court.

- P sues D in federal court in Virginia concerning breach of an oral contract entered into in New York with performance in Virginia. - Under Virginia choice-of-law rules the law of the place of contracting governs (NY).- Can the federal court come up with its own choice-of-law rule under which the law of the place of performance governs?

Klaxon v. Stentor Elec. Mfg.(U.S. 1941)

Semtek Int'l Inc. v. Lockheed Martin Corp.,

(U.S. 2001)

- Semtek sues Lockheed in state court in Ca. under Ca. law-the action is removed under diversity- then dismissed on statute of limitations grounds- Semtek then brings an action in state court in Maryland (where there is a longer statute of limitations)- claim precluded?

Rule 41. Dismissal of Actions. . .(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — exceptone for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.

- P sues D in federal court in diversity in Nebraska. P's suit is for rent due. Judgment for D - the lease is held to be in violation of the statute of frauds (it should have been in writing). - P subsequently sues D in state court in Nebraska state court for quantum meruit (that is, for the fair value of the use of P's apartment). - Under Nebraska's law of claim preclusion, an action at law concerning a transaction may be followed by an action at equity concerning that same transaction. - Does the Nebraska or the federal (transactional) rule concerning the scope of P's claim against D?

- D Airlines Flight 257 from Bogota, Columbia to Rio de Janiero, Brazil crashed while taking off from Bogota-Eldorado International Airport. - American members of the deceased passengers file a wrongful-death action against D Airlines (a Columbian citizen) in E.D. La.- assume that La has no forum non-conveniens doctrine- D makes a motion to dismiss on forum non convenience grounds- what result?