1. Wed., Dec. 5

2. horizontal substance/procedure questions

3. service rules: procedural

4. statutes of limitations… traditional view: presumptively procedural bur sometimes substantive (bound up with cause of action), with forum procedure yielding to another jurisdiction’s substance

5. statutes of limitations… modern view: more likely to be considered substantive substantive – the statute of limitations of the state that provides the cause of action is used

6. distinguish… borrowing statutes

7. burdens of proof: presumptively substantive but could be procedural, with forum procedure yielding to another jurisdiction’s substance

8. now…

9. what is federal power over procedure when a federal court is entertaining a state law cause of action?

10. federal constitutional law governing procedure in federal court…

11. Seventh Amendment In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

12. federal common law governing procedure in federal court - ignore federal statutes and FRCPs

13. P sues D in federal court in New York under New York negligence law New York law puts the burden of proof on the plaintiff to show his lack of contributory negligence can the federal court use a federal common law rule making contributory negligence an affirmative defense instead?

14. Palmer v. Hoffman (US 1943) also Cities Service Oil Co. v
Palmer v. Hoffman (US 1943) also Cities Service Oil Co. v. Dunlap (US 1939)

15. Guaranty Trust v. York (U.S. 1945)

16. 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.

17. policy of vertical uniformity between federal and forum state court (if outcome determinative)

18. a federal court in Kansas is entertaining an action under Kansas law it uses Kansas statute of limitations, according to Guaranty Trust but, according to the federal law a statute of limitations is tolled upon filing under Kansas law, it is tolled upon service which rule should the federal court use?

19. Ragan v. Merchants Transfer & Warehouse (US 1949)

20. a Mississippi statute requires a corporation doing business within the state to designate an agent for the service of process before bringing suit in Mississippi state court there is no such requirement under federal law P (a Tennessee corporation doing business in Mississippi) is suing D in federal court in Mississippi under Mississippi law P has designated no agent for service of process in Miss. D moves for summary judgment on this ground what result?

21. Woods v. Interstate Realty (US 1949)

22. incorporating state standards, not applying state law

23. a New Jersey statute requires small shareholders bringing derivative actions to post a bond federal courts have no such requirement P, a small shareholder, brings a derivative action under Delaware law against D in federal court in New Jersey P has not posted a bond D moves to dismiss what result?

24. Cohen v. Beneficial Indus. Loan Corp. (US 1949)

25. where we stand at this point: borrow forum state law if the difference between federal common law and forum state law is “outcome determinative”

26. should federal courts use their own common law choice of law rules?

27. Klaxon…

28. NY action in federal court in DE what prejudgment interest is used
NY action in federal court in DE what prejudgment interest is used? the fed ct treat the matter as substantive (governed by NY law) the US SCt held it must choose the law that a DE state court would

29. The conflict of laws rules to be applied by the federal court in Delaware must conform to those prevailing in Delaware’s state courts. Otherwise the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side.

30. Byrd v. Blue Ridge Rural Electric Corp. (US 1958)

31. First. It was decided in Erie R. Co. v
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 [S.C.] 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.

32. what is an example of a state rule where the bound-up test is satisfied?

33. Palmer v. Hoffman (US 1943)

34. P sues D in federal court under California law for wrongful death California has rule about the maximum number of pages in a brief that it considers bound up with its wrongful death statute must federal common law yield to it?

35. Second. 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 federal court failed to apply a particular local rule. E.g., Guaranty Trust Co. of New York v. York.

36. But there are affirmative countervailing considerations at work here....

37. after Byrd: assume P sues D in federal court in New York under Pa law 1) if a Pa rule is bound up with the Pa cause of action the federal court must use the Pa rule instead of federal common law rule 2) but there is also a policy of vertical uniformity with NY state courts (if difference is outcome determinative) 3) there may also be countervailing federal interests in favor uniform federal common law rule, however 2) must be balanced against 3)

38. federal procedural common law - claim/issue preclusion - choice-of-law rules - anything that federal courts simply don’t do that a state does (whether by state constitution, statute, or common law)

39. what about Fed. R. Civ. P.? and federal statutes governing procedure in federal courts?

40. Hanna v. Plumer (U.S. 1965)

41. - Hanna sued Plumer, Osgood’s executor, for Osgood’s negligence in auto accident - left summons and complaint with Osgood’s executor’s wife at place of residence in accordance with 4(e) (4d at the time) - Mass statute required hand delivery to an executor or administrator - DCt granted motion for summary judgment - Ct App aff’d - outcome determinative - SCt reversed

42. “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.”

43. why no concern about vertical uniformity when a FRCP is at issue
why no concern about vertical uniformity when a FRCP is at issue? why does vertical uniformity matter only when federal courts are creating federal procedural common law?

44. Green’s theory: the source of federal courts’ obligation to consider vertical uniformity when creating federal procedural common law in diversity cases comes from the purposes of the diversity statute

45. P(NY) sues D(Cal.) in state court in NY under NY law 2 ½ years after an accident D is worried about state-court bias against him NY has a 3-year statute of limitations what would happen if federal courts had a common law 2-year limitation period?

46. 28 U.S.C. § 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

47. what is Congress’s power over federal procedure?

48. “[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.”

49. - Congress passes a uniform statute of limitations applicable for all actions in federal court, including state law actions - is the statute valid? - even if a shorter state statute of limitations is bound up with the state cause of action?

50. - 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 - this meant not giving the Florida judgment Full Faith and Credit - constitutional?

51. 28 U.S.C. § 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

52. “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., 312 U.S. 1, 14.

53. now – assume that the federal service rule had been common law

54. “[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.”

55. “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.”

56. twin aims of Erie

57. Erie flow chart...

58. 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

59. example: P sues D in federal court in New York under federal securities law under New York state law the statute of limitations files on service when does the statute of limitations toll, filing or service?

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

61. 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

62. 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)

63. 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)?

64. 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

65. look back at old cases in light of Hanna’s rejection of the outcome determinative test...

66. could a federal court sitting in diversity create a common law limitations period different from that of the forum state? (Guar. Trust)

67. the forum state has a statute requiring any out of state corporation doing business in the state to appoint an agent for service of process before bringing suit should a federal court sitting in diversity in the state use the rule too? (Woods)

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

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

70. 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?

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

72. - P sues D in federal court in New York under 42 USC 1983 for civil rights violations does not have its own statute of limitations, so federal courts borrow from analogous state statutes (NY’s is 2 years) - New York's statute of limitations ran out between the time that P filed in federal court and the time P served D - under the federal rule, statute of limitations are tolled at filing - under the New York state rule they are tolled at service - is P's action barred?

73. P sues D under Pennsylvania law in federal court in New York New York uses notice pleading the federal approach is Twiqbal which applies…?