Wed. Apr. 16

1. Wed. Apr. 16

2. Erie

3. Tompkins (a PA domiciliary) sues Erie (a NY domiciliary) in NY state court concerning an accident in PACan NY use its own standard of care?Can NY use its own procedure?

4. Tompkins sues Erie in federal court in NY concerning an accident in PACan the federal court apply a federal common law standard of care?Can the federal court use federal procedure?

5. P sues D in federal court in New York under New York lawCan the federal court apply a federal common law limitations period or must it apply New York’s?

6. Guaranty Trust v York(US 1945)

7. It is therefore immaterial whether statutes of limitation are characterized either as "substantive" or "procedural" in State court opinions in any use of those terms unrelated to the specific issue before us. Erie R. Co. v. Tompkins ... expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts. In essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court.

8. A Mississippi statute requires a corporation doing business within the state to designate an agent for the service of process before bringing suit. Should this statute be used by a federal court in Mississippi?

9. A New Jersey statute requires small shareholders bringing derivative actions to post a bond. Should this statute be used by a federal court in New Jersey for a derivative action under Delaware law?

10. Byrd v. Blue Ridge Elec. Coop. (US 1958)

11. “First. It was decided in Erie R. Co. v. Tompkins that the federal courts in diversity cases must respect the definition of state-created rights and obligations by the state courts. We must, therefore, first examine the [state] rule … to determine whether it is bound up with these rights and obligations in such a way that its application in the federal court is required.”

12. Is a federal court forbidden to use its power to create procedural common law to displace state substantive law in federal court?Is Congress forbidden to use its power to create procedural law for federal courts to displace state substantive law?

13. P sues D in federal court in NY under PA law. PA’s statute of limitations is bound up with the PA cause of action. A NY state court would use NY’s statute of limitations anyway.What statute of limitations should the federal court use?

14. “But cases following Erie have evinced a broader policy to the effect that the federal courts should conform as near as may be -- in the absence of other considerations -- to state rules even of form and mode where the state rules may bear substantially on the question whether the litigation would come out one way in the federal court and another way in the state court if the federalcourt failed to apply a particular local rule.”

15. “But there are affirmative countervailing considerations at work here.”

16. Hanna v. Plumer(US 1965)Suit in fed ct in MA under MA lawShould MA’s service rule be used or can the ct use the FRCP governing service instead?

17. The [Erie] decision was also in part a reaction to the practice of 'forum-shopping' which had grown up in response to the rule of Swift v. Tyson. That the York test was an attempt to effectuate these policies is demonstrated by the fact that the opinion framed the inquiry in terms of 'substantial' variations between state and federal litigation. 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.

18. There is, however, a more fundamental flaw in respondent's syllogism: the incorrect assumption that the rule of Erie R. Co. v. Tompkins constitutes the appropriate test of the validity, and therefore the applicability, of a Federal Rule of Civil Procedure. The Erie rule has never been invoked to void a Federal Rule.

19. “[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.”

20. Could Congress pass a uniform limitations period for state law actions brought in federal court?

21. 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. . . .’

22. “Under the cases construing the scope of the Enabling Act, Rule 4(d)(1) 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.”

23. Erie flow chart...

24. is the federal court sitting in diversity/alienage or is there a cause of action with supplemental jurisdiction?NO?- Example: P sues D in federal court in New York under federal securities lawno Erie problem- no need to worry about state procedural law

25. But…The FRCP or federal statute at issue might still be invalid- e.g. FRCP might abridge enlarge or modify the federal substantive right

26. is the federal court sitting in diversity/alienage or is there a cause of action with supplemental jurisdiction?YES

27. is the relevant federal procedural law mandated by the U.S. Constitution? E.g. 7th A if yes it applies

28. Is the relevant federal procedural law a federal statute? if yes it applies if it is arguably procedural it does not matter if it leads to forum shopping

29. Really? Could Congress pass a 3-year statute of limitations for tort actions brought in federal court that displaced a 2-year statute of limitations that a state had bound up with its cause of action?

30. Is the relevant federal procedural law a Fed. R. Civ. P.?if yes only questions are - is it arguably procedural and - does it abridge enlarge or modify substantive rights (Sibbach test? Shady Grove?)

31. 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. . . .

32. how can you tell if you are in the FRCP track…?

33. Walker –Application of the Hanna analysis [i.e. FRCP track] is premised on a “direct collision” between the Federal Rule and the state law. 

34. federal rule (suggested by FRCP 3) – tolling of statute of limitations at filingforum state rule – tolling at servicewhich applies in a diversity case?

35. Rule 3. Commencing an ActionA civil action is commenced by filing a complaint with the court.

36. is the relevant federal procedural law common law? - remember, includes cases in which the federal court simply doesn’t have anything on point, but doesn’t do what the forum state does

37. 1st is the state rule is bound up with the cause of action (Byrd) – if so, use state lawexamples?- statute of limitations folded into a statutory cause of action- burden of proof for contributory negligence

38. Really? Could a state compel federal courts to limit the page length of briefs by folding up a rule into the cause of action...?

39. not bound up…?

40. Look to twin aims of Erie- would having a federal common law rule different from the forum state’s rule lead to… - vertical forum shopping - inequitable administration of the laws?

41. forum shopping in general, not in the particular case

42. “The best explanation of what constitutes inequitable administration of the laws is that found in Erie itself: allowing an unfair discrimination between noncitizens and citizens of the forum state. Whether discrimination is unfair in this context largely turns on how important is the matter in question. The decision of an important legal issue should not turn on the accident of diversity of citizenship, or the presence of a federal question unrelated to that issue.” Stewart Organization, Inc. v. Ricoh Corp. (US 1988) (Scalia, J. dissenting)

43. P(NY) sues D(NY) in state court in NY concerning a car accident in NY. Action gets dismissed due to the NY 2-year statute of limitations.P(NY) sues D(Pa) in federal court in NY concerning a car accident in NY.Federal court applies a common law time limit and lets the action proceed.

44. Why are we concerned about forum shopping?What is inequitable about vertical procedural differences?

45. P sues D on a Pa cause of action in Miss state ct.The Pa 2 year statute of limitations is not bound up with the Pa cause of action.The Miss state court applies its own longer statute of limitations.

46. 28 USC § 1652 - State laws as rules of decisionThe laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

47. “Rules of Decision Act Analysis”“Relatively unguided Erie choice”

48. 28 U.S. Code § 1332 - Diversity of citizenship; amount in controversy; costs(a)The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between— (1)citizens of different States; (2)citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;(3)citizens of different States and in which citizens or subjects of a foreign state are additional parties; and(4)a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

49. if no problem of forum shopping/ineq. admin., then use uniform federal common law ruleexample: federal common law rule concerning service

50. if there is a problem of forum shopping/ineq. admin., then use forum state rule- unless sufficiently strong countervailing federal interests in favor of the uniform federal common law rule