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
action
federal court entertaining state action
P and D (both Pennsylvanians) get into a car
accident in Pennsylvania
P sues D in state court in Virginia under
Pennsylvania law
Can 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 possibilities
1) 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
th
(5
- federal constitutional law
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 to
twin 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 — except
one 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?