1. Thurs., Dec. 6

2. Erie flow chart...

3. is the federal court sitting in diversity/alienage (or is there a cause of action with supplemental jurisdiction)? if no (that is if it is solely federal question) – no Erie problem - just use federal procedure, provided it is valid* *a FRCP might still be invalid under the RDA, e.g. because it abridges enlarges or modifies a federal substantive right

4. assume now that a federal court entertains a state law action (or an action under the law of another nation)

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

6. is the relevant federal procedural law a federal statute
is the relevant federal procedural law a federal statute? if yes it applies if what it regulates is rationally capable of classification as procedural (arguably procedural) - Green wonders about the power of Congress to preempt state rules bound up with the state’s cause of action Green also wonders if Congress might use this power to override federal courts’ intrinsically judicial powers (Schiavo)

7. is the relevant federal procedural law a Fed. R. Civ. P
is the relevant federal procedural law a Fed. R. Civ. P.? if yes only questions are - is what it regulates arguably procedural? and - does it abridge enlarge or modify substantive rights (will discuss later)?

8. is the relevant federal procedural law common law
is the relevant federal procedural law common law? - remember, includes cases in which the federal court simply doesn’t have anything that state law addresses if so first determine if 1) state rule is bound up with the cause of action (Byrd) – if so, use state law - Green wonders whether a state might abuse this power to bind up irrelevant procedural rules 2) if not look to twin aims of Erie difference leads to forum shopping and ineq. admin. of laws? countervailing federal interests

9. tolling rules…? is Ragan in the federal common law or FRCP track

10. Rule 3.  Commencement of Action A civil action is commenced by filing a complaint with the court.

11. Walker v. Armco Steel Corp
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 - Ragan said use forum state rule - but does Hanna make a difference?

12. application of the Hanna analysis (concerning FRCPs) is premised on a "direct collision" between the FRCP and the state law. 

13. back to the FRCP track especially § 2072(b) “Such rules shall not abridge, enlarge or modify any substantive right ”

14. Shady Grove Orthoped. Assoc. V. Allstate (U.S. 2010)

15. Allstate refused to pay NY statutory interest on late payment of claims - class action against Allstate for the interest

16. N. Y. Civ. Prac. Law Ann. §901 (no class actions for penalties or statutory minimum damages)

17. Rule 23(a) provides: “(a) Prerequisites
Rule 23(a) provides: “(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: “(1) the class is so numerous that joinder of all members is impracticable; “(2) there are questions of law or fact common to the class; “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and “(4) the representative parties will fairly and adequately protect the interests of the class.” Subsection (b) says that “[a] class action may be maintained if Rule 23 (a) is satisfied and if” the suit falls into one of three described categories [irrelevant for present purposes].

18. Scalia (with Thomas, Roberts & Sotomayor)

19. The dissent’s approach of determining whether state and federal rules conflict based on the subjective intentions of the state legislature is an enterprise destined to produce “confusion worse confounded.” It would mean, to begin with, that one State’s statute could survive pre-emption (and accordingly affect the procedures in federal court) while another State’s identical law would not, merely because its authors had different aspirations. It would also mean that district courts would have to discern, in every diversity case, the purpose behind any putatively pre-empted state procedural rule, even if its text squarely conflicts with federal law. That task will often prove arduous. Many laws further more than one aim, and the aim of others may be impossible to discern. Moreover, to the extent the dissent’s purpose-driven approach depends on its characterization of §901(b)’s aims as substantive, it would apply to many state rules ostensibly addressed to procedure. Pleading standards, for example, often embody policy preferences about the types of claims that should succeed—as do rules governing summary judgment, pretrial discovery, and the admissibility of certain evidence. Hard cases will abound.

20. Allstate argues that Rule 23 violates §2072(b) because the state law it displaces, §901(b), creates a right that the Federal Rule abridges—namely, a “substantive right … not to be subjected to aggregated class-action liability” in a single suit. To begin with, we doubt that that is so. Nothing in the text of §901(b) (which is to be found in New York’s procedural code) confines it to claims under New York law; and of course New York has no power to alter substantive rights and duties created by other sovereigns.

21. Scalia: “The fundamental difficulty with …these arguments is that the substantive nature of New York’s law, or its substantive purpose, makes no difference. A Federal Rule of Procedure is not valid in some jurisdictions and invalid in others—or valid in some cases and invalid in others—depending upon whether its effect is to frustrate a state substantive law (or a state procedural law enacted for substantive purposes). That could not be clearer in Sibbach…”

22. Scalia: “In sum, it is not the substantive or procedural nature or purpose of the affected state law that matters, but the substantive or procedural nature of the Federal Rule. We have held since Sibbach , and reaffirmed repeatedly, that the validity of a Federal Rule depends entirely upon whether it regulates procedure. If it does, it is authorized by §2072 and is valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights.”

23. assume there is a new FRCP that determines who has the burden of proof for contributory negligence – is it valid?

24. Stevens, concurring

25. Stevens: The New York law at issue, N. Y. Civ. Prac. Law Ann
Stevens: The New York law at issue, N. Y. Civ. Prac. Law Ann. (CPLR) §901(b) (West 2006), is a procedural rule that is not part of New York’s substantive law. Accordingly, I agree with Justice Scalia that Federal Rule of Civil Procedure 23 must apply in this case and join Parts I and II–A of the Court’s opinion. But I also agree with Justice Ginsburg that there are some state procedural rules that federal courts must apply in diversity cases because they function as a part of the State’s definition of substantive rights and remedies.

26. “Justice Scalia believes that the sole Enabling Act question is whether the federal rule “really regulates procedure,”which means, apparently, whether it regulates “the manner and the means by which the litigants’ rights are enforced”…. I respectfully disagree. This interpretation of the Enabling Act is consonant with the Act’s first limitation to “general rules of practice and procedure,”§2072(a). But it ignores the second limitation that such rules also“not abridge, enlarge or modify any substantive right,” §2072(b) (emphasis added), and in so doing ignores the balance that Congress struck between uniform rules of federal procedure and respect for a State’s construction of its own rights and remedies. It also ignores the separation-of-powers presumption, and federalism presumption that counsel against judicially created rules displacing state substantive law.”

27. In my view, however, the bar for finding an Enabling Act problem is a high one. The mere fact that a state law is designed as a procedural rule suggests it reflects a judgment about how state courts ought to operate and not a judgment about the scope of state-created rights and remedies. And for the purposes of operating a federal court system, there are costs involved in attempting to discover the true nature of a state procedural rule and allowing such a rule to operate alongside a federal rule that appears to govern the same question. The mere possibility that a federal rule would alter a state-created right is not sufficient. There must be little doubt.

28. Ginsburg (with Kennedy, Breyer, & Alito), dissenting

29. Ginsburg: “The Court today approves Shady Grove’s attempt to transform a $500 case into a $5,000,000 award, although the State creating the right to recover has proscribed this alchemy. If Shady Grove had filed suit in New York state court, the 2% interest payment authorized by New York Ins. Law Ann. §5106(a) (West 2009) as a penalty for overdue benefits would, by Shady Grove’s own measure, amount to no more than $500.”

30. “In sum, both before and after Hanna , the above-described decisions show, federal courts have been cautioned by this Court to ‘interpre[t] the Federal Rules … with sensitivity to important state interests,’ and a will ‘to avoid conflict with important state regulatory policies.’ The Court veers away from that approach…in favor of a mechanical reading of Federal Rules, insensitive to state interests and productive of discord.”

31. Is the relevant federal procedural law a Fed. R. Civ. P
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 (must consider state substantive policies)

32. - Colorado passed a Certificate of Review Statute
- Colorado passed a Certificate of Review Statute - anyone suing a licensed professional for malpractice must provide, with the complaint filed, a certificate stating that an expert in the licensed professional’s area of practice has examined the claim and has determined that it has substantial justification - P (a citizen of New York) sues D (a citizen of Colorado) in the Federal District Court for the District of Colorado for medical malpractice under New York law.  - P’s suit concerns an operation that D performed upon P in New York City - P does not file a Certificate of Review with her complaint - in his answer, D asks that the action be dismissed for failure to file a Certificate of Review - what result and why?

33. Semtek Int'l Inc. v. Lockheed Martin Corp., (U.S. 2001)

34. - Semtek sues Lockheed in state court in Ca. under Ca
- 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? - assume that under federal law a dismissal under statute of limitations grounds has claim preclusive effect - under California law it does not

35. Rule 41. Dismissal of Actions. (b) Involuntary Dismissal; Effect
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.

36. We think, then, that the effect of the “adjudication upon the merits” default provision of Rule 41(b)...is simply that, unlike a dismissal “without prejudice,” the dismissal in the present case barred refiling of the same claim in the United States District Court for the Central District of California.

37. in federal common law track - is Ca’s preclusion law bound up with the Ca cause of action?

38. will difference between federal and state law lead to forum shopping
will difference between federal and state law lead to forum shopping? are there countervailing federal interests?

39. In other words, in Dupasseur the State was allowed (indeed, required) to give a federal diversity judgment no more effect than it would accord one of its own judgments only because reference to state law was the federal rule that this Court deemed appropriate . In short, federal common law governs the claim-preclusive effect of a dismissal by a federal court sitting in diversity.

40. - P sues D in federal court in diversity in California - P's suit is personal injury due to a defective hot water heater - judgment for P - P subsequently sues D in state court in California for property damages due to the water heater - under California's law of claim preclusion, an action for personal injury and for property damages concern different primary rights - does the California or the federal (transactional) rule concerning the scope of P's claim against D apply?

41. What if there was no FRCP 4(k)(1)(A)?

42. Essay Question 7. (30 points) P (a domiciliary of California) sued D University (a for-profit college incorporated in New York with its principal place of business in New York) in federal court in California. P alleged that D University committed fraud under California law by misrepresenting the employment statistics of graduates. The D Corporation brought a counterclaim for defamation against P. P sought to have the counterclaim dismissed under section 23 of the California Code of Civil Procedure, which states as follows:

43. Section 23(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. (b) (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the claimant has established that there is a probability that he or she will prevail on the claim. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which liability is based. … (d) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion.

44. The D Corp. argues that section 23 is inapplicable in federal court in California. Who is right and why?