Civil Procedure I: Schwarzschild Outline 3

Civil Procedure I

Class Notes



Notes 8/21/07


M. Schwarzschild

Rm. 318

Ph 619-0260-2343


The functions of the court:

-Be as fair as possible (justice)

-Be efficient

-To give people a proper amount of participation


What is the court system?

State courts, federal courts


Which courts are going to be appropriate to resolve any dispute or potential dispute?


What are the California State Courts?

-Superior Court, the court of general jurisdiction.  There are inferior courts, such as traffic court, etc.  There will usually be a Supreme Court in every county.


-Court of Appeals (6 appellate districts in the US)


-CA Supreme Court


Application for a writ of certiorari


Federal Court


U.S. District Court—the trial court of general jurisdiction

There are other specialized Federal Courts (US Military, Tax Ct)


Where can you expect to find the Federal Trial Court?  There will be at least 1 in every state.  We are in the USDCSD.


Finish off court system, then turn to what the jurisdiction of these courts are.


Notes 8-23-07


3 layers of courts, a trial court of generalized jurisdiction


The loser in a District Court has a right of appeals to the U.S. Court of Appeals.  They can appeal to the U.S. Court of Appeals, organized in geographic regions.  Each circuit embraces more than one state.  We are in the 9th circuit.  Typically 3 judges hear an appeal, and the appeals are as of right.  Sometimes there will be a hearing before the entire panel, of all appellate judges in the circuit, called en banc (French for whole bench). 


If you lose your appeal in the District Court, you can appeal to the U.S. Supreme Court, which has 9 justices.  Almost never do you have an appeal as of right.  Almost entire docket by certiorari. 


Is there any crossover?  Can you ever go from the Federal system into the state system? No.  One little exception.  Once you are in a system, whether it is the state system or the Federal system, you are in it. 


What about crossover from the State Courts to the Federal system?  Short answer is no.  Once your case is underway in the state system, you are in the state system and you must stay there.  What exception, when it’s all over.  Exhaust remedies in state courts, and you say they were wrong on a federal issue, if you claim this you can then apply for certiorari to the Supreme court.  If you do cross over, it is going to the Supreme Court, not to the US court of appeals or the US District Courts. 


State Courts deal with Federal issues every day, and have since the outset.  Federal Courts deal with state issues as well.  System doesn’t preclude you from hearing Federal and State issues in a state court or Federal court.  Perfectly legitimate and fairly common.  Fact that there is a Federal issue, whether it is raised by plaintiff or defendant, doesn’t mean it can be heard in state court and decided in state court.  Are there any Federal provisions, and ultimately you can go to the Supreme Court if they grant certiorari. 


Double jeopardy applies only to the Federal government and only within the federal system.  Can be punished in both Federal and State system.


Who decides where a criminal case starts is the prosecutor.  Who needs to authorize a Federal constitution?  5th gives right by Grand Jury.  Every Federal prosecution begins with an indictment by a Federal Grand Jury.  States, do not require that.  Grand jury provision not held under 14th amend to states.  Infirmation, prosecutor sings a certain paper, saying I am initiating this prosecution, it is called an information.


Civil case, the plaintiff decides whether to sue in Federal or State court.


Can defendant file a motion to move action to state court?  Short answer is no. 


Do I want to sue in state court or federal court and do I want to stay in that system if I can? 


Looks weird, one country but two separate systems of court systems.  Difference in substantive that can differ from state to state?  The death penalty is an example. 


What is the jurisdiction of Federal Courts, and what kinds of cases are under the jurisdiction of the state court?  Colors how the whole system works.  Must know to fingertips.  Must know what Federal Courts can deal with and what State Courts can deal with.


What justification is there for a Federalist system?

Good or bad, this is what we have.


Federal courts are courts of limited jurisdiction. Immensely important, it is a theme for the rest of this course.  Not only are Federal courts, courts of limited jurisdiction, but what are the powers of the Federal government?  What are the powers of the state government?


State government has full power, except what the constitution forbids to the states.  Article I, section 10 is directed to the states. 


What can the Federal Government do?  Make war.  Regulate commerce.  Foreign affairs.  Receiving ambassadors.  Federal government can only do what the constitution authorizes.  States are governments of plenary power, except where the constitution denies them power.  Federal government is a government of delegated or enumerated power.  LIKEWISE FOR THE COURTS.


What is the jurisdiction of the state courts? Everything.


What is the jurisdiction of the Federal Courts? Article III of the U.S. Constitution.  If the constitution gives the Federal courts jurisdiction, then the Federal courts only have that jurisdiction.


Subject matter jurisdiction, state courts have everything.


Subject matter of the Federal courts is limited.


Also need personal jurisdiction.



Notes 8-28-07


10th Amendment—embodiment of Federalist, Article 3 lays out a delegated limited power of the Federal Courts.


-Personal Jurisdiction

-Subject Matter Jurisdiction-state court extends to everything, Federal courts limited in principle by 10th Amendment and more specifically by Article III of the constitution. 


Personal jurisdiction-why not say all courts have jurisdiction over everybody.  Due Process, 14th Amendment. 


Also, if you haven’t been given notice and you never hear about it and they give a judgment against you, that is a default judgment.  This is not fair either.


Joy of Federal system, not only that you have 50 court systems, question of not only which court you should be in, but which law should it be under.  We already know that state courts hear federal court issues.  Federal courts hear state issues and state courts hear Federal issues. 


Pennoyer v. Neff


1st litigaton:  Mitchell sues Neff for attorney’s fees-DEFAULT judgment against Neff, since Neff was not in the state. 


2nd: Mitchell gets land and conveys it to his crony Pennoyer.  Neff found out his land is taken away and brings suit.  Sum of it, there was no jurisdiction in the first case. 


Issue before the Supreme Court:  Was there jurisdiction over Neff?  No.


Pennoyer known as the great presence case in personal jurisdiction.  Presence in the state.


Court has jurisdiction over you if court has established your presence.  You are domiciled there, you are physically there. 


Is notice the same thing as jurisdiction?  No.  A court can give notice to anybody.  If the dispute is over land, if there is land within the jurisdiction and the court, what kind of issue does the court then have jurisdiction to decide?  Anything about the land. 


You get two flavors of personal jurisdiction:

1. In personam-as to the person

2. In rem-a thing-does bind the thing, can adjudicate as far as the thing is concerned, including who owns the thing.

3. Quasi in rem (was or used to be)-adjudicates the status, custom, or ownership of property.  Was a hybrid.  Could get damage, up to the value of the asset.  Litigate the liabilities of the person and then get compensation from the asset. 


You can’t retrospectively change a personal jurisdiction case into a quasi in rem action, which would have resolved the initial Mitchell v. Neff dispute.


Suppose I put it in terms of Corporations?  Companies, manufacturerers, etc. 


Hess v. Pawloski


Plaintiff in error might be the appellant, terribly confusing…


Drove to Mass and wanted to sue, and would like to sue in Mass.  The question is whether or not Mass. Court have personal jurisdiction over this guy in Pennsylvania.  Under Pennoyer, no, they would not.  Mass statute, which says that if you take your car onto a Massachusetts highway, you are deemed to designate Mass attorney general as accepting process over you for such a lawsuit. 


Supreme Court


Does international shoe rely on a fiction?


Will finish personal jurisdiction, will at least get through, number 3 and into number 4.


Notes 8-30-07



Personal Jurisdiction


International Shoe:

Company incorporated in Delaware, employees

Dispute, statute in Washington will tax company for unemployment fund, International Shoe Co didn’t pay.  The state serves one of the salesmen and notifies International Shoe of a lawsuit.


Legal persons, and natural persons. 

Legal, person amenable to being sued.  Corporation is a legal person. 


International Shoe:  Are they Pennoyer present?  This is a question of law.  The fact of the law is, in the state of corporation and in your principle place of business, if they are different, you are Pennoyer present. 


Interlocutory : in the course of a conversation, appeal that goes up, once there is a decision on a preliminary question, but before the case is decided.  In general no interlocutory appeals in the Federal court. 


The appeal was strictly over jurisdiction.  The most they can find is that there is jurisdiction.  To have personal jurisdiction there need to be some minimal contacts.    They get benefits from the state.  If a problem arises court will be open to International Shoe.  If you take advantage of our state, you submit to being sued, at least with respect to the activities in the state. 


You may think this is not a lot of presence, should they be subject to suit for the slip and fall in St. Louis? 


Justice Black:  New Dealer, came from Alabama, a very liberal judge.  Thrust of concurrence, if the business has any contacts in the state, it can be sued in the state and we don’t have to ask what they are being sued about.  The majority is making a distinction.  Majority setting up 3 possibilities?  There is not personal jurisdiction since you don’t have minimum contacts.  You did have at least the minimum contacts, in which case you can be sued over disputes arising out of those contacts.  You can be sued for anything


NO activity in the state,


Transacting business




Looking at other cases, see what might be required for:


Gray v. American Radiator & Standard Sanitary Corp


Pennoyer presence, when you are present in the state and when you are served.  Headquarters is Pennoyer presence.  State of incorporation. 


Victim little guy, and corporation can pay. 


Buy something, then drive, explodes in another state.  Under this reading of the statute, it is the tortious act.  The plaintiff must go to where the tortious act takes place. 


McGee:  Are they Pennoyer present?  No, no office, no agents in CA.  Why are they subject to suit in California.  K was in California. 


Notes 9-04-07


Commissioners for Uniform Laws.  Is there a uniform personal jurisdiction code?  Have all states enacted an indentical statute or policy?


How does California differ from New York.  Long Arm statutes.  CA just says, we have jurisdiction, so long as it is not inconsistent with the United States Constitution.  Pennoyer, personal presence or domicile. 


Is doing business more or less than transacting business? 


What we mean by doing business is continually doing business.  If you are doing business in the state, you are not domiciled in the state because you are headquartered somewhere else, if you are doing something in the state, you are subject to general jurisdiction. 


Least plausible assertion of jurisdiction here:  If you are doing business in the state, it is constitutional to assert jurisdiction over you.  302-3


International Volkswagen


We don’t do business in Oklahoma and we don’t transact it in Oklahoma either.  Imagine that Oklahoma had the New York long arm statute, argument would be it is within the statute, meeting the requirements. 


South in general has a dislike for out of state corporations. Plaintiffs may have a variety of reasons for wanting to try the case in Oklahoma.


Not fair to drag company to Oklahoma, since they did not have any ties, contacts, or relations to Oklahoma. They didn’t do business there, they didn’t profit, etc.


How is Hustler distinguishable, how does it come out?      

Notes 9-06-07



No Class next Thursday.



3 possibilities for personal jurisdiction:  Is there sometimes no jurisdiction? Yes.  Whom is personal jurisdiction an issue for?  The defendant.  Presence is a basis for jurisdiction.  Personal jurisdiction over the plaintiff is not going to be a problem.  Pennoyer itself as far as it goes is still good and descriptive about how the system works.  What did Pennoyer say about personal presence?  It is the basis, if not the core basis to personal jurisdiction.  If a natural or legal person is present, then there is jurisdiction over them.  In order to be a plaintiff, you have to be in the state. 


Minimal contacts in the state, you can be sued from disputes arising from such contacts, this is specific jurisdiction.


What is the easiest way and least controversial way of establishing jurisdiction over a defendant?  Suing or serving them when they are personally present, or if they are domiciled in the state. 


Describe a situation when there clearly won’t be jurisdiction over a potential defendant:

1. Defendant not present in the state, and never been in the state, and he doesn’t have the even minimum contacts with the state, that are required by the law (Due Process) to exercise personal jurisdiction.


3 Possibilities:

1. No jurisdiction

2. There is jurisdiction

3. General Jurisdiction

4. Specific Jurisdiction


No office, no factory, no permanent employees, a tough sell to argue systematic and continuous. 


Under Hess or International Shoe, McGee, know them as specific jurisdiction cases. 




For Tuesday: Read 5 and 6.


Notes 9-11-07



Statutes—we claim personal jurisdiction over anybody that due process says is constitutional.  Court has trifurcated:

1. No jurisdiction (Δ automatically wins)

2. Defendant transacted enough to sue about any claim arising out of the contact (Hess, International Shoe)

3. Defendant’s contact with the state are sufficiently large and substantial that it is fair to sue them not only on claims arising out of what they have done on the forum, but on claims that did arise out of the forum. 


Helicopteros case:

Try to establish general jurisdiction

“continuous and systematic” look for an office.

Some states have statutes saying that if you register your office in the state you are subject to general jurisdiction


If you are the plaintiff, are you happy with your lawyers?  Probably not.

Can claim that the helicopter was negligently prepared in Texas, or the training was negligently done in Texas.  Now do you have a good shot of specific jurisdiction in Texas?  In order to claim that you need to have evidence.  Suppose you claim it in bad faith, then what? 



Why is ebay and the technology for which it is a symbol a problem for the whole scheme of personal jurisdiction? 


Whether the claim arises out of activity in Louisiana. 


Harris v. Balk

Debt adjudicated in Maryland when he wasn’t a party to it. 

Complicated because the debt seems nebulous. 

In rem doesn’t adjudicate the person, just the thing. 


Quasi in rem - Harris v. Balk, no personal jurisdiction over Balk, but Epstein says Balk’s property is in the state.  The property is the debt.


Shaffer v. Heitner


Notes 9-18-07


Quasi-in rem jurisdiction, Shaffer


In order to satisfy due process, what is needed to satisfy jurisdiction?  According to Pennoyer, presence.  Since Pennoyer, in addition states can exercise some jurisdiction over people who aren’t present as long as a state has a long arm statute. 


Did Delaware have a long arm statute?  No.  What basis are the plaintiff’s suing?  Quasi in rem jurisdiction. 


Quasi in rem jurisdictioin goes back to Pennoyer.  Case involving metaphysical property.  Delaware says it will treat this as though it was a bank account, will give judgment up to the amount of Delaware property. 


What is wrong with quasi in rem jurisdiction?  If there is Quasi in rem, would it grab the directors who own shares? 


With appropriate contacts and a long arm statute, you have personal jurisdiction.


Sum Up:


In personam jurisdiction: presence, minimum contacts (cause of action must arise out of minimum contact), consent, continuous and systematic contacts (gives in personam to any cause of action),


After Shaffer what about quasi in rem jurisdiction?  It’s gone, if you have to establish minimum contacts, it will just be personal jurisdiction. 


Does not mean that in rem jurisdiction is gone?  No. Classic in rem case? 


Burnham:  Served with papers from a lawsuit, came to California, she served him, the lawsuit did not arise out of the visit.  Shaffer says you need minimum contacts for jurisdiction. 


Scalia, because he is present and because he was physically served, it is one of the oldest principles that the court can assert jurisdiction. 


Physical presence makes you available to a lawsuit while you are there. 


What about consent, is it a basis for personal jurisdiction?  Yes.  What about an adhesion contract? 



Personal Jdx by Consent cont.

·         Forum Selection Clause (aka Adhesion K clause)

o   Are they reasonable?

§  Carnival case said yes.

o   What about online agreements?

§  Should/does it matter if it’s a browse wrap or click wrap agreement?

ú  Both are adhesion agreements, both are binding, you must click on “I agree” to continue on the website. One already has the agreement there for you took @, the other you have to click a link to see the agreement.

§  Should courts leave it to the marketplace to determine what’s reasonable? Prof leaves us to answer it on our own

Challenging Jdxn

Special Appearance: when law of the state permits you to come into the state SOLELY to challenge personal jdxn.

·         By coming in, you don’t give consent to jdxn

·         If you lose in this special appearance and then leave:

o   1) there will be a default judgment against you and

o   2) the ∆ (you) can’t re-litigate in the ∆’s home-state to say that there wasn’t jdxn in the forum state (Baldwin)

§  under the Constitution, the home state has to give full faith and credit to the judgment to the forum state

·         So why give a special appearance?

o   You may persuade the forum court there is no jdxn over you!

§  Many states hold that if you stay in the sate and litigate the issue on the merits and lose, then you can appeal jdxn as well as the judgment

·         If you don’t make a special appearance, there will be a default but  you can question jdxn in ∆’s state b/c there’s no contested judgment about the jdxn from the forum state.

·         If you show up for special appearance, you lose and the court determines your case on the merits, you can’t appeal based on the facts! Never have an appeal about the facts – only about the law.

o   If you are in a state court, don’t forget that the only federal court you can appeal to is the Supreme Court. Not likely your case will come before them. They can only see your case if your saying that the state court judgment is a violation of a federal law (ex. fed. Statute that pre-empts or trumps state law, due process, etc.)

General Appearance: If you appear generally, you are giving the court general jdxn over you (ie, giving consent)


Final Thoughts:

·         Does Shattner abolish all quasi-in-rem Jdxn?

o   Case says that to bring a case in quasi-in-rem the ∆ has to have minimum contacts – which means you have personal jdxn as long as you also have a long arm statute.

·         Some states have much more narrower/specific long arm statute (doesn’t always give the leniency that Constitution allows)

o   You can still sue quasi-in-rem bc the old way is still deeply embedded in the legal system. You just need to make sure that ∆ has assets in the state!

·         Point: Don’t kiss-off quasi-in-rem

·         If you sue quasi-in-rem in IL and your beef w/ the ∆ has nothing to do the assets, but the ∆ has assets there and ∆ has minimum contacts in respect to the lawsuit, and IL had a long arm statute, then it would meet due process requirements. Court here would give a default judgment up to the amount of the assets if ∆ doesn’t show up for the lawsuit.

o   Is it res judicata that ∆ is personally responsible for what the court gave damages for? NO.

o   If you go and litigate under a general appearance, then yes, it’s an in-persona judgment binding on the ∆ AND the assets

§  Limited appearance = coming to dispute the minimum contacts. 


Litigation Process

·         Governed by the FRCP.


·         Drafted in theory by the US, in theory, drafted by a commission appointed by the court. In theory, enacted into statutory law by congress. In practice, once the Supreme court approves what the commission does, the congress usually unanimously approves what the supreme court does.

·         First enacted in the ‘30’s as part of the “new deal” reform era

·         Principle behind the fed. rules: make it simple and as transparent and accessible as possible – even to non-lawyers. Minimize what gets criticized as technicalities. Make it fair and efficient.

·         47 or 48 has enacted the FRCP as their own state rules, with minor provisions. But 98% or 99% of the time, the actual text of these state's procedural rules are the FRCP.

o   CA is not one of these states

§  CA procedural code adopted in 1920’s.

ú  Considered a big reform move in CA. Said to have the same goals (fairness, efficiency, transparency) but the layout is completely different.

ú  FRCP in 30’s were influenced by what happened in CA.

·         They took in substance, a lot of what CA’s rules said – but not the layout.


1st thing that needs to happen: NOTICE

·         Π needs to notify ∆ that he’s getting sued/there’s a dispute

o   Form that says ∆ is getting sued = summons.

§  Summons says: you are being sued in x court in this place and time, and attached is a complaint of why you are being  sued.

Actions taken in a lawsuit are mostly often via paper

·         Heading on top left of each paper you turn into the court lists:

o   1) π v. ∆

o   2) Court (USDC for the Southern District of California)

o   3) Case #

§  Civil = CA1234567 (CA= civil action)

§  Case # issued when you go to clerk’s office

§  If you end up in supreme court of US, then you will get a different case #.

Form 1: Summons

·         Text of the summons = you are summoned and required to serve an answer to the complaint which is served to you w/in 20 days after service of this summons by you. If you fail to do so, judgment by default will be taken against you.

·         How a summons gets served

o   File it w/ clerk

§  Get civil action #

o   If proper, clerk will sign and seal it and give it to π to make sure it’s given to the ∆.

§  In olden times, for fed court, needed  a marshall to serve (but you don’t need that now)

§  Rule 4(c)(2): Π CANNOT serve ∆ - can’t be served by a person who is a party to the suit

o   Can serve by mail so long as state law allows it

o   Rule 4 regulates summons:

§  Summons served w/ complaint

§  May be effected by a person who is NOT a party

§  Who is @ least 18 yrs of age

§  By request of π, can have court direct a marshall to do it (usually with a payment)

§  4(2)(e) tells you the means by which this is done:

ú  (1)Either in pursuance to state law where the fed court sits

ú  OR (2) by doing it under the federal ways:

·         1) by leaving copies @ the dwelling house (or usual abode) of the ∆, or to someone in ∆’s home who is of suitable age or to an agent

o   can’t leave it @ the office (unless state law provides for it, which would then fall under 4(2)(e)(1))

·         2) OR Personal service (delivering it literally to the person)

o   Personally delivery doesn’t mean it has to be delivered in the hands of the ∆.

·         Rule 4(d) not only says that you can waive service of summons, but that you pretty much have to!

o   If you don’t waive the service, then you are responsible for the costs that are incurred!

§  There are incentives to waive the formal process of service and penalties not waive it

o   How to get a waiver:

§  Write ∆ a letter saying that he is going to get sued by you. Tell him, “please let me know if you waive service of summons. If you do not, then you will pay my lawyer’s fees for producing and the costs of serving it on you.” ∆ has 30 days to waive.

ú  Incentives to waive:

·         ∆ gets 60 days from the date the π sent out the notice/request to waive, instead of 20 to reply.


Statute of Limitations is why it’s important when you start the lawsuit.

·         In Fed court: a lawsuit is deemed to being when the summons/complaint is submitted to the court (FRCP 3)

o   You have 120 days to serve it to the ∆.

§  Problem w/ serving the day before: if there’s a flaw in summons– you can’t go back and re-file. – you’d have to start a new lawsuit IF you can.

Notes 9-25-07




Notice was fulfilled by the newspaper.


Issue, was notice sufficient to satisfy, not the New York statute, but rather Due Process.  What did they have to do to satisfy Due Process.  Bank doesn’t know who the beneficiaries are, because the guy hasn’t died yet. 


What is the Due Process requirement?  That it would be reasonable. 


If you have their addresses, mail them notice, if you don’t have their notice, use a newspaper.  Mullane says yes, a newspaper is sufficient to notify people whose address you do not have. 


If it is notice by publication and it is reasonable to do a bit more than that, do a bit more than that. 


Is service by publication allowed in Federal Court?  Yes. 


Was Mullane an in personam action?  They sort of said you can call it in rem, or you could call it quasi in rem, we don’t want to get into it. 


Will mail suffice for Due Process purposes?  Yes, that is what Mullane says.  Who should bear the loss. 


What Mullane basically says is that reasonable notice is required. 


Rule 4(d) doesn’t everything it can to avoid the technical—did you properly serve the complaint technicalities. 


If I sue you and I win, who pays my expenses?  I do.  That is the American rule, there are some statutory situations that a statute will specify that if the plaintiff sues and wins, they must pay the plaintiff’s legal expenses.  This is highly exceptional. 


American system encourages litigation with the benefits and costs that go along with that.  English system discourages it. 


There is a scholarly literature of economists arguing that it doesn’t and it shouldn’t. 


National Equipment Rental, LTD. v. Szukhent


Can’t pay for farm equipment. 


How do you serve a corporation?  Serve it to an officer. 


Wuchter v. Puzzutti – p190


First actual pleading.  What is a pleading, what needs to be in the complaint, what is the next step after the complaint. 

Notes 9-27-07


 Final words on notice, summons:


How you serve process in a foreign country.


Filing of the complaint with the clerk marks the start of the lawsuit.  Rule 3, civil action commences with the filing with the court.  How long can you sleep on it before you serve?  120 days.  When does the statute of limitations stop running?  Statute of limitations stops when you file a complaint.  Statute of limitations are always enforced with absolute. Fertile source of malpractice suits. 


Distinction between tricking somebody or kidnapping them into the jurisdiction, and tricking them within the jurisdiction to accept service.  If you are already in the jurisdiction you have a civic duty to accept service and it is fair game for you to be tricked into doing the duty.  If you are out of the jurisdiction


Pleadings and


A little history:  Counterintuitive, but the history of law


Pleading: series of documents that starts and define the litigation. 


Motion is a formal request to a judge to do something or to order something.  The complaint is the kickoff pleading.  At common law there would be a series of pleadings until the issues were defined.  Some of the technical rules for a complaint:  Common law, if there was an error of pleading, the suit could be dismissed with prejudice, it was a fatal mistake. 


Negative pregnant.  Defendant says he doesn’t owe 10,000.  You need to say I don’t own 10,000 or any debt.  This is full of traps for the unwary and puts an enormous premium on having a good lawyer.


What was the response to this old common law system?  The federal rules. 


FRCP—doesn’t say anything about facts. 




Defendant is the customs authority who impounded the tonics. 


Take a look at rule 12(e). 


Denny v. Carey

Notes 10-02-07




All the forms are short.  Tactical reasons for pleading more elaborately. 


Diaguardia is an example of the liberal pleading approach.  It lets the defendant know generally about what the case might be about.


At common law, demurrer.  A technical legal term, interestingly not used in the federal rules but still used in CA.  At common law, the demurrer, the effect was to accept the allegations as true, and I say as a matter of law, those facts create no cause of action, and therefore legally you (the judge) are required to dismiss the case on the footing that even assuming everything the plaintiff alleges is true, then there still is not case at law.


By demurring you have admitted for the purpose of litigation that you have conceded the facts in the complaint.  You took a risk by demurring, it was all or nothing.  12(b)6 you can move to dismiss on the ground that the complaint fails to state a cause of action. 


Rule 8(a)2 pleading must give a short statement showing that the pleader is entitled to relief.  Early supreme court said this is not what we meant.  Look at Diaguardia and the form.  Pleading is pleading along the lines of the forms. 


Fraud case, all that is required is slightly more…  Denny and Barbour do not go along with this. 


Has Congress upped the ante in pleading?  Yes, in response to the McDonald’s case. 




2nd circuit required more.  We want a complaint that tells us in a lot more detail about how the discrimination took place.  The supreme court does what?  Says you only need to satisfy Rule 8(a)(2).  What does Thomas say if you want to change the rules, leave it to the legislative branch.  Bottomline:  You need to give notice unless it is fraud or mistake or unless Congress enacts a higher requirement.


Bautista v. LA County comes out the other way.   


Can you plead inconsistent theories?  Yes you can, but you couldn’t under common law.  Rule 8(e)2.  Add on your syllabus 8(e) should be 8(e)2. 


What is the colloquial alternative complaint: 


What is the other thing we haven’t talked about, but the rules requires in a Federal Complaint?  What else is going to be required in 8(a)3?  Complaint has to give a short and plain statement of jurisdiction, of why you are entitled to a claim, and a prayer for relief.  It is a specific request for the specific recovery for damages or remedy that you are seeking. 


Liberal pleading system, of course you are going to get the 200.  Might there be a scenario if it is unfair if you get the 200?  If they are blindsided at trial.  Default judgment. 


Notes 10-04-07


If the order of magnitude is different, are you going to hire a council and prepare defense with the same level of care with a $100 suit vs. a $1,000,000 suit?


We have talked about the complaint, its function in the lawsuit, the idea of notice pleading, the idea that even the federal rules requires more than notice pleading, statutory requirements for more than notice pleading, courts interpreting the rules or making common law that purports to impose notice of pleading requirement.


After complaint, the defendant can file a motion.  What is a motion?  Where do we go in the rules for the motions possible after a complaint?  Rule 12 and Rule 12(b).  First reference to motions is in Rule 7(b). 


American Nurses’ Association v. Illinois


If the complaint says:

1. We are the nurses.

2. You are the employer

3. The employer discriminated against us.

4.  Because of the discrimination we $1,000,000 in damages.


Why didn’t they file a bare bones complaint?  What did they want to telegraph to their opponent right away?  Public record, media attention.


Judge lets it go forward because 2 of them have a chance to make a legal claim, and it won’t survive the discovery stage unless it has merit.  Posner came close to throwing the case out on the pleadings.  98% sure that you are alleging a comparable worth case, and that isn’t a case. 


What the effect of the motion is?

Read 12(g) and 12(h)


If you make a motion, what have you got to include in that motion?


Finish 10 and move into 11.


Notes 10-09-07


Motions:  Rules 12(g) and 12(h)  the question is must a defendant make a motion? 


If you don’t make the motion, with the consequence of giving up, losing waiving whatever the particular objection is. 


Take a look at 12(g) and 12(h).


Often for strategic reasons the complaint will be more detailed than it needs to be.  But you don’t know what discovery will yield, the defendant can’t know everything he needs to before trial.  But off of the complain you should know whether there is proper jurisdiction, whether there is an appropriate long arm statute, etc.  Let us know or move on.


Another element of it.  We don’t necessarily favor these defenses.  If you make a motion, you must raise these things in a motion, or you waive them. 


Lack of personal jurisdiction, bad service, bad summons, wrong venue. 


What rule says that you have to raise these defenses in your answer or you will lose them?


If you don’t put personal service in the motion, can you put lack of summons in the complaint?  This is poor drafting.  Courts interpret as if you make a motion you forfeit whatever you don’t raise in the motion. 


Example of an answer:


Courts disfavor general denials. 


If you know you have certain defenses, you need to raise them when you know about them.  That is what is known as an affirmative defense. 


Affirmative defenses:  8(c):  What does it mean if it is an affirmative defense.  You might deny on the allegations why the lawsuit is bad.  Laches (lay cheese) equitable statute of limitations. 


Ingram Case on p. 546:


You shall plead them.  How do you know whether something is an affirmative defense that you must plead?  Anything that is within the knowledge of the defendant that the plaintiff should be notified of in the answer.  That is an affirmative defense.  The idea behind avoidance is tell us what the defense is if it is something that would surprise the plaintiff later.  Should the plaintiff’s lawyer be surprised that there is a statutory cap on damages if the defendant doesn’t point it out to you? 


Court says it would have been a surprise and you failed to plead it.  You really only raised it at the end of the case, since it would have been a surprise we are going to say that you can’t raise it and the cap isn’t going to apply in this case. 


If you are in doubt about something that is an affirmative defense, you should PLEAD it.  In a sense, Taylor is the opposite.




Notes 10-10-07


Aquaslide case:


This is sad, but the truth is, it isn’t their aquaslide.  On the other hand, the plaintiff relied on the answer. 


Rule 15; freely given when justice so requires. 


This spirit of rule 15a and b, that is we are back in soft America and getting away from the common law rule that you need to lay it out in the pleadings, this is very loose. 


I sue you for negligence, then the statute of limitations runs.  Somehow I come to believe that this was no accident, they were plotting against you.  I want to amend the complaint to add that.  Can you amend the complaint?  It is new, it is post statute of limitations?  Is is permitted, see rule 15(c)(2).  If you hadn’t sued in the first place and the statute of limitations runs, I cannot sue you for anything.


Why is there a difference?  Once the defendant has been put on notice, now go out and collect evidence, but you are on notice and liberal amendment comes into play. 


What about changing the names? 


Worthington v. Wilson


Rule 15 (c)-relating back problem.

Can he do it?  No, it wasn’t a mistake.  The rule.  Knew or should have known that but for a mistake, the action would have been brought against…officer Krupke.  Court says, was there a mistake?  No, there was no mistake.  Is this rightly decided? 


Rule 11


Attorney can’t just file something that is false or frivolous.  Before 1983 rule 11 said in quite general terms, “don’t file abusive or improper pleadings of any kind.”  Concern that there is too much litigation.


If the facts aren’t based on substantive investigation, and the legal actions aren’t at least justifiable, that is a violation of section 11, and monetary sanctions shall be applied.  The courts were directed to basically fine lawyers who violated that quite tough incarnation.  Does the present Rule 11, work that way?  Rule 11 requires that you sign every pleading, verify means to put it on oath (this was how Rule 11 used to be).  Does rule 11 require the pleadings to be verified?  No, it does not.


Signature certifies that it is not being presented for an improper purpose (harass, delay, or run up the meter),




Were the pleadings okay?  They had some mistakes.  Did Kunstler got wrong that he never worked for 5 years, and that one of the scratch sheets was from the wrong year. 


What is the crucial question under rule 11?  Crucial question is, was there evidentiary support?  The evidentiary support is his client.  He told you he wasn’t.  How did you know the sheet was a 1989 receipt, is this evidentiary support?  Yes, it is enough if, if as a lawyer, he made a reasonable inquiry.  Is it enough of a reasonably inquiry for Kunstler to believe his client.  The court says, UNLESS Kunstler had reason to think his client was unreliable.  The key thing here, the party him or her or itself, can be and often will be a witness.  A witness who testifies is evidence. 


Rule 11—if I sue you and file a complaint, and you think my complaint violates Rule 11, what can you do about it?  Make a motion.  The motion is a motion that describes the specific conduct.  You make a motion that asks for sanctions.  Enforcement is to make sanctions.  You give it to the other party and they have 21 days to correct.  Safe harbor provision.  Before you make sanctions, you are required to notify the other attorney that you will submit this, unless they withdraw or the correct the problem. 


Scalia dissent says that it is an invitation to file bad pleadings because you have an invitation to retreat (i.e. 21 day safe harbor provision).  If they don’t withdraw after 21 days, then what happens?  Can’t be sanctioned for things under subdivision b2, these are the legal arguments.


Are monetary sanctions compulsory without evidentiary support?  No, the court is given discretion and encouraged to do other things.  What about a pleading filed for delay or to run up the costs, monetary sanction is not compulsory either, though it is available.  Is this too tough on lawyers file complaints and answers, not tough enough, or about right? 


Pick up with the new syllabus and something completely different…subject matter jurisdiction. 


Notes 10-16-07


Rule 11:


Mr. Brilliant, Surowitz Case-leave to us to read.  Classic Justice Black decision.


Golden Eagle Case:  p. 575.  Not bringing cases to the attention of the court, is this a violation of rule 11, or not?  The court says no.  Other circuits would come out differently on it.  On another day a different panel in the 9th circuit may come out differently.


Which is the better approach? 


Interlocutory appeal, appeal that takes place immediately, before the completion of the suit. 


Rule 11(c)(1) safe harbor provision applies only for a request for sanctions and an objection from your opponent. 


Subject Matter Jurisdiction of the Federal Courts


1.  Do not confuse subject matter jurisdiction with personal jurisdiction, they are different and they raise different issues. 


2.  The limited subject matter jurisdiction of the federal courts has to do with federalism.  We spend time on this because the federal courts are important.  Most litigation takes place in the state courts. 


The basic principle is what?  What is the jurisdiction of the state courts?  Everything.  It is plenary.  Unless a valid federal law prohibits the state courts from adjudicating a particular thing.  There are a few federal laws that prohibit the state courts from adjudicating a few things.


In principle the power of the state courts is plenary.


What is the jurisdiction of the federal courts?  What is the constitutional jurisdiction of the federal courts?  Article III, §2. 


Before we get to Article III, what is the judicial power of the United States.  Article III §1, the federal judicial power shall be vested in…What is the most important thing about the judges in article III, §1?  Those judges have life tenure. 


Allegation is that Federal courts are rich people’s courts.    


Is the jurisdiction of the Federal Courts identical to what the constitution permits it to be?  What does the constitution say about a lawsuit between a Texan and a Martian if the suit is for 50k?  The statute limits it in several ways.  1st way, is that the lawsuit has to be for more than 75k.  28 USC §1332.  EXCEEDS the sum of 75k. 


Next time, are there other respects in which the Congress has not enacted, authorized by statute, federal jurisdiction where the constitution would allow Congress to do so. 


Read 15 for next time.

Notes 10-18-07


Cases and controversies are those kinds of cases that are litigable in court.  Most of the cases are rare, they involve ambassadors, admiralty, but there are two flavors of cases which are not so rare and which make up the overwhelming bulk of federal litigation.  Those are: cases arising under the constitution…and diversity cases. 


1.  In fact Congress has no extended the jurisdiction of the federal courts to all cases involving citizens of different states.  Whether it must is actually an interesting question. 


Section 2 says the judicial power shall extend to cases of citizens to different states. 


Strawbridge v. Curtis:  John Marshall  opinion, Judiciary Act of 1789


For centuries almost, Strawbridge said that the constitution requires complete diversity, i.e. no plaintiff being a citizen of the same state as the defendant.  Do we actually go with that interpretation?  There have been in very recent decades acts of Congress creating diversity jurisdiction for various flavors of cases. 


Some statutes give diversity without complete diversity. 


Federal courts are more protective of property rights than the state courts, more favorable to successful institutions and in particular corporations, more favorable to civil rights and to minorities. 


What does the constitution say?  Citizens of different states.  Same thing with 28 USC 1331(or 1332). 


Corporations can be domiciled in two locations:  Their place of incorporation, or their principal place of business. 


Domicile:  The place of the accident doesn’t matter.  Students are generally thought not to be domiciliaries. 


Mas v. Perry:


Is the presumption is that there is diversity jurisdiction, or if there isn’t?  Let’s assume there isn’t.  What is the first thing in a diversity suit a plaintiff will have to establish?  That there is diversity.  At what point is a plaintiff expected to bring out that there is diversity?  The complaint.  If you look at the form complaints.  All complaint forms begin with an allocation of jurisdiction.  Despite loose goose pleading, this is something you have to plead. 


2 French guys sue in Federal Court claiming diversity:  Is this good?  At least one circuit has said yes. 


Under the terms of 1332, is there diversity if a plaintiff from CA and a plaintiff from France sue a defendant from France?  Is complete diversity between foreigners required?  One circuit has said no. 


Moving on to Federal question jurisdiction, then move into supplemental jurisdiction.  Supplemental claims, 14 and 15 Tuesday.


Notes 11-06-07


It gets a little bit more complicated with supplemental parties and claims.  The problem we suggested is in a sense the tug of war between the two conflicting principles.


Federal courts are courts of limited jurisdiction and they mustn’t overstep that.  Kroeger case on p. 297.


Kroger case:  says no on that. 


Finley is different, how is it different?  What is the jurisdictional basis for plaintiff’s action against the defendant.  Plaintiff wants to add a claim against D2, and it can’t be diversity, but plaintiff says, it is the same case or controversy, it is the same dispute, and therefore I should be allowed to add this party and this claim. 


28 USC 1367, does this change Kroeger?  Section (a) says that when the district court…—if this action is a diversity action, there will be no supplemental jurisdiction over claims by plaintiffs over additional parties joined by the case.  Is the rule consistent with Kroger, yes it is. 


(b)-precludes in diversity action. 


Article III-jurisdiction over cases and controversies.  Jurisdictional shorthand—federal question jurisdiction, and diversity. 


It arises out of the same case or controversy, what is it that brings it in under Article III?


We have suggested that in order to sue in federal court you need personal jurisdiction, subject matter jurisdiction (federal question jurisdiction and diversity jurisdiction),


Removal:  Defendant cannot remove to state court, it is a on way opportunity. 


Rationale for diversity is to prevent state court prejudice against the defendant.


1441 precludes removal by an in state defendant in a diversity action, but if plaintiff sues on a federal claim, anybody, including the home state defendant can remove if the defendant wants to.


The nature of your claim and who you sue as a plaintiff can make you stay in state court. 


Suppose you sue in federal court and there is jurisdiction, is there anything the plaintiff can do about that?  No, you cannot remove to state court.  There is no removal down to state court. 


Plaintiff is from CA, he sues a defendant from New York, what can he do to keep it in state court, what do you do?  Join another defendant who is from CA.  Then there is not complete diversity.  You can also sue for less than jurisdictional amount (75k).  You can also sue them in New York.


Rose v. Giamatti


Plaitniff rose is from Ohio, he sues Giamatti who is from New York.  Wants to stay in local Ohio courts.  Add Major League baseball and the Cincinatti Reds, so no complete diversity.  It looks like Giamatti is going to be stranded in state court.  Court, Reds and MLB are only nominal or formative parties. 



Notes 11-08-07




If A sues B and C in state court, B and C must both petition to move to state court, or neither can oppose the removal. 


Challenging subject matter jurisdiction:

Most it done in motion or in answer?  See page 324.  Why is there a difference between this and personal jurisdiction?


Subject matter can be raised at any time, and can be raised by the court. 


Why such a difference between the treatment of personal jurisdiction and subject matter jurisdiction? 


Do we favor the defense of no personal jurisdiction?  No, why not? 


If you are a federal court, is subject matter jurisdiction a matter that you take lightly?  No, it is a constitutional issue, and it deals with the allocation between the state and the federal government. 



-The proper place for the trial of the suit.

-Venue is purely statutory matter (unlike subject matter jurisdiction and personal jurisdiction). 


Satute on venue: USC §1391

Section (a)-diversity

Section (b)-where there is diversity


iF you can’t satisfy (a)1 or (a)2,


Scenario where you couldn’t sue in federal court?  Substantial part was outside of the US. 


Is there a scenario where you wouldn’t be able to sue in federal court where the events arose?  Cyber, something that is online.


No venue at all means that you can’t sue.  Bad solution for plaintiffs, good solution for the plaintiff. 


If everybody is out of the country, there could be an instance where there is no venue and there is no case. 


Bates case:


Bates originally from Pennsylvania, received a letter in NY from a collection agency.  In Pennsylvania, got a loan, and then he moved to New York. 


Eerie (a little tricky). 


Notes 11-13-07


What is domicile relevant to? Personal Jurisdiction.  It can also be relative to subject matter jurisdiction (diversity).


Personal jurisdiction lined out state by state in the long arm statute.  Many states have long arm statutes that don’t got as far as the constitution allows (NY, IL).


Ferens Case:  Happens in Pennsylvania, Pennsylvania Plaintiff and Delaware corporation, sues in Mississippi under diversity jurisdiction. 


1391(c)—Where corporation resides for venue purposes.


Under U.S.C 1404-Plaintiff can apply for it as well.  Classic forum shopping.  Plaintiff trying to get the best of both worlds, statute in Mississippi, and location in Pennsylvania, it seems a little manipulative.


1404 “transfer any civil action to any other district or division where it might have been brought.”  So could this case have been brought in Pennsylvania?  No, because the statute of limitations has run.  This is an anomaly and is hard to reconcile the Court’s decision in Ferens.


Statute doesn’t require a convenient forum, common law does.  In addition to the statutory requirement of venue there is the common law doctrine of dismissing a case if it is forum non conveniens.


Piper Aircraft Co. v. Reyno


Venue 1391: venue in pretty much every state in the country.  Δ says please don’t hear this case, and the court of appeals reversed the district court (district court grants motion to dismiss). 


Swift v. Tyson (p. 362)


I’ll sell you the Brooklyn Bridge…seller takes the note and seller sells it to Swift.  Swift comes to Tyson and says pay up. 


What court are they in?  The sue in Federal Court of New York.  Shouldn’t Federal Law apply? 


What law will apply if there is a question of Federal Law?  Federal law. 


If it is going to be a question of state law, how do you know which state law?


1. Who is the Federal law going to favor if there is a difference?

2. How did Swift play out and why.

3. Erie


Guaranty Trust v. York.


Notes 11-15-07


Exam:  Bar exam like multiple choice section: 2/3, short essay worth 1/3, 2.5 hours total.  Open rules, open note materials you have prepared yourself.




If you could find a New York statute applicable at the time, would that control?  We are dealing with a vertical conflict of law problem, i.e. does federal or state law apply in particular situations.  If state law was going to apply, it would be new york law.  If there had been a new York statute which said that a note given in exchange for a fraudulent transaction would not be enforceable, what would the position have been?  State law would apply. 


The correct answer is the judiciary act of 1789—said that in diversity cases state law should apply, and everybody agreed that that means state statutory law.  It would be unconstitutional to apply federal law in state court because of the federalism we talked about last time and article I, §8 doesn’t cover intra state transactions. 


Diversity, if there are state statutes it will be state law, if there aren’t state statutes it will be common law. 


Problem: it invites people who don’t like state law to go to federal court, and those who don’t like federal court to go to state court.


This invites forum shopping between the state and federal courts. 


Swift 1842-1934


Erie R.R. v. Tompkins


Wanted to sue Erie R.R. for negligence.  State law Erie would be liable for wanton negligence, a light burden on the defendant.  Justification for light burden is because the plaintiff was trespassing. 


Pennsylvania common law favors the railway.  It is the other way around for federal court.  Is plaintiff suing under federal statute?  No.  It is a diversity case, since the R.R. is based out of New York.  The only basis for subject matter jurisdiction is diversity. 


Good reason for suing in New York? Venue, what is the venue, if there is one defendant and the defendant is incorporated in New York, where is venue? 


Trial court applies federal common law under swift and decides for Tompkins, and then the case goes to the supreme court.


Why should a 100 year old decision have particular weight?  Should it have any particular weight that it is old rather than new?  People rely on the precedent.  People need to know what the law is, “here are the rules, abide by them.”


Mostly, who will Swift favor?  Plaintiffs like Harry Tompkins?  No, by in large, even if NY, and PA, were freak common law, by in large, if you are a railway you like Federal common law and you are afraid of state law.  It would be a stretch of an argument.  Plaintiff is relying on Swift.  Nobody mentions swift. 


Is it right to overturn Swift in a case where neither party even mentions it?  Erie is a


Passage on p. 362.  That means that state common law as well as state statutory law.  Saying it is unconstitutional, bottom of 366, holding is that this is a constitutional decision.  Federal common law isn’t just an understanding of the judiciary act, but a violation of the constitution, this is beyond the enumerated powers of lawmaking granted in the constitution. 


Why does the Supreme Court do this?



What did Butler say about the actual result in the case?  He says that federal common law is great, federal judges should be making federal common law, and as for this case, no loss for the railway because on my reading of federal common law, contributory negligence negates recovery. 


Any advantages to having state common law and federal common law?  Might you want to have some competition? 


What happened in the taxicab case? 


Who will determine which court we are in? 


Brandeis says that this gives plaintiffs total control.

Notes 11-20-09


Successor cases to Erie:


Part of this was about federalism, part of it was a pretty consciously ideological tug of war about the nature of who federal judges would side for.


Either way you are getting forum shopping, and there are things to be said about getting one kind over the other kind. 


Taxi case shows the manipulative side of the forum shopping issue. 


368 they do not take it for granted that the plaintiff loses under state law.  Defendant claims that there is no recovery for mere negligence and the court below never really got to the question. 


Successor cases to Erie:


Guaranty Trust v. York


Anything in Erie which suggests that this might have been legitimate?  Congress has no power to apply common rules applicable to the states.


Substantive v. Procedural, why not just say act as if the state court would in all respects?


Does the government have the constitutional power to create a law that will be applicable in diversity cases?  State court judges are elected, federal court judges are appointed. 


Statute of limitations…follow the states law. 


Diversity case: apply substance, if it substantially effects the outcome, then it is substance. 


What is procedure and what is substance?  Is the statute of limitations procedural or substantive?


York: if it is going to substantially going to effect the out come of the case then it is substance.


Procedure is about court management. 


Substantive or procedural, which one do you go with in a diversity case? 


Pleading rules? 


York: If it substantively effects the outcome, then go with the state. 


Does the statute of limitations seems the same or different from pleadings lines? 


Byrd Case:


Supreme Cout: Discuss the York case, and the said if the breaching, State laws cannot alter the essential character and function of a federal court, so he gets a jury.  Whether you get a jury or not is procedural.  Does this conform to the criteria of York?


7th Amendment says that


Do we have a viable principle for what is procedural and what is substantive? 


This is a good illustration with a procedural problem that the courts had a really hard time with. 


Looks as though Hana v Plumer would solve problem, is the Hana solution still reliable after Walkter v. Arm Coat Steel?

Notes 11-27-06


Guaranty Trust Co. v. York:  Everything that affects the outcome of the case should be as it would be in state court.  Dicta: The remedy doesn’t have to be the same. 


Other things that may affect the decision: the judge, the jury.  Judge may be more detached, more sophisticated than the typical state judge. 


Byrd: A jury is different from a case to the judge, but it is pretty essential to the function of a federal court, you get a jury trial in federal court even though you don’t in state court even though it may substantially affect the outcome. 


Hana v. Plumer


Car crash in South Carolina, diversity suit filed in Massachusetts.  Rule 4(d)(1)—


Ultimately the defendant basically says: motion for summary judgment because I was never lawfully served.  Clearly they were lawfully served if conforming to Federal Rule 4 was okay.  If you are defendant council you say that we should follow state law because it might substantially affect the outcome.  Supreme Court says that the Federal Rule should apply.  Rules enabling act just says that a slightly complicated process of an advisory committee all clear and ultimately enact


Clear guide for as to what is procedural, namely if it is in the FRCP then it is procedural and if it is procedural then you conform to the federal approach.  Substantive law must be state law, but that is not true with procedure. 


Harlan Concurring: 


Walker v. Armco Steel


Walker was injured in the eye by a nail.  Question of whether Federal Rule 3 would apply.  In principle what stops a staute of limitations from running? A lawsuit.  When you commence suit.  What do you mean by commence suit?  Under Federal rules, when is suit commenced?  When you file the complaint with the court.  Under rule 3 a lawsuit is commenced when you file the complaint in the court clerk’s office. 


In Hanna the state required personal service the federal rule allowed leaving it at home.  You might thing in Armco the state law commenced so that you might think this is a federal rule.  Does the Supreme Court cite any precedent for the idea that it is different? They do, the Reagan case, what is the interesting thing about the Reagan case?  It was a statute tolling case but the court went with the state practice, it was decided before Hanna v. Pummer.


What is going on here? If you are the very liberal Marshall, what might you be concerned about in terms of Hanna and the Federal Rules?  Squashing the little guy.  Corporate interests and civil rights interests are favored in Diversity jurisdiction.  Hanna makes it too easy on defendants by allowing them to use Federal procedure in diversity cases. 


p.213—Statute of limitations. Federal rule tolls with commencement of filing.  Under rule 4(m) or (n)? service must be made within 120 days unless the Π shows good cause for not completing service in that time. 


If it is substantive then in a diversity case you must go with state law. 


Klaxon Co. v. Stentor Electric MFG. Co.


Apply the conflict law of the state in which the suit is sitting. 


Is there anything similar to this that we have already seen in terms of the federal court following the practice of the state in which they sit?  Long arm statutes, but more broadly, personal jurisdiction. 


A federal court will apply the law of the state in which the federal court sits for personal jurisdiction, unless federal statute provides for a different metric of personal jurisdiction. 


For Erie purposes, are conflicts procedural or substantive—substantive (follow the state). 


Federal court, Federal judge dealing with a diversity suit, I know the substantive law I must apply is state law, how do I figure out what that state law is?  How do I find out what the substantive state law in my state is? 


Mason:  Bench grinder wheel disintegrates and causes an injury.  Could the defendant have been sued in Mississippi. 


Next time, are there ways and means for a Federal Court to figure out what the state courts would interpret the state law as being. 


Is there such a thing as Federal common law?  Boyle v. United Technology. 


First half finish up through Boyle, at 8:10 we will break it off and answer review questions.


Is there any other way you can try to get at this? 

Notes 11-29-07


Walker: If it is a diversity suit and the state defines the statute of limitations to stop running when you serve the defendant, then you go with the state rule. 


In a way Armco is a very exceptional Supreme Court case. 


Hana has a broad rule: a federal rule of civil procedure is procedural. 


Talked about Mason and a situation where the federal court in Rhode Island was going to have to apply Mississippi law.  Conflict of laws.


1928 Case saying we’re not going to go with this new fangled thing and stick with the common law of privity and Ford wins. 


Boyle v. United Technologies Corp.


Was this a federal question lawsuit?  No, it was a diversity suit.  Was there a federal statute, would it be constitutional to have a federal statute saying federal contractors couldn’t be sued?  Probably. 


Is this common law? Yes.  Does the federal government have the power?


Dice v. Akron


Rules supplement and notes of your own making that you have in good faith generated.