Procedure Class Notes
Two things are circulating…the next to the last reading assignment list, which covers the “survey” part of the course, where we go back to the beginning of the book and pick up brief little lessons on all of Civil Procedure from filing the case through the appeal. This is the core of Civil Procedure II. We want to have some exposure to that process. Our last unit deals with preclusion issues. The other handout has the two readings that we’ll look at tomorrow.
Yesterday, Fairman taught
Ohio Civil Procedure to
In response to this eeriness, the Court gives us the Byrd balancing test.
I don’t care!!!
The court is unsatisfied with
the existing arrangement and gives us another way to answer
There was a car accident in
What do we do? The lawsuit is filed in
The Rules Enabling Act says that the Supreme Court gets to set the rules of procedure for the federal courts, provided that it does not “enlarge, modify, or abridge any substantive right”. Congress, by statute, empowered the court to create the Federal Rules of Civil Procedure.
The REA is different from the RDA. The latter is the law that prescribes the way in which the federal courts decide the legal questions involved in diversity cases.
The twin aims of
1. Discourage forum-shopping
2. Avoid inequitable administration of justice
The rule that we’re going to use is:
When a situation is covered by the Federal Rules, the REA tells you to use the Federal Rule and the only way you’re going to not use the Federal Rule is if it is unconstitutional. But the trick is that the Supreme Court both writes the rules and decides whether they’re constitutional.
Hanna gives us a simple way to preserve the FRCP. If the Federal Rules are on point, you use them, unless they are unconstitutional.
What does Harlan say in his
concurrence? He agrees with the result,
but he would come to it in a different way.
This concurrence will be used later by the Court to articulate yet
another way of looking at the “true”
Harlan tells us to “[i]nquire if the choice of rule would substantially affect those primary decisions affecting human conduct which our constitutional system leaves to state regulation.” In other words, does the rule actually influence how you file your lawsuit?
As to Ragan, however, Harlan says that it was wrongly decided because the rule about when actions commence trumps a Federal Rule that would have been okay under the REA. On the other hand, Harlan thinks that Cohen was right using his “does it primarily motivate you” standard.
One test for Erie problems
Is there a Federal Rule of
Civil Procedure at issue? If no, analyze
under the twin aims of
If there is a Federal Rule, then is there a conflict between the proposed Federal Rule and the state’s procedure? If not, then you use the Federal Rule. Presumably, if there’s no conflict, you can use the state rule as well. That’s a possible explanation for Gasperini.
If there is a conflict, then you ask: is it within the REA? If yes, then you apply the Federal Rule. There can’t be a no answer because a court will never declare one of its own rules unconstitutional.
This is claimed to be a visualization of the Hanna opinion.
It turns out that if there is a Federal Rule, there is only one possible result: use the Federal Rule. Does this work?
State law requires pleadings
to be stated with substantial factual detail.
There are certain
State law requires that medical malpractice claims go to non-binding arbitration pre-trial. Is there a Federal Rule? No! So we go to the twin aims of Erie. The aims are to eliminate forum-shopping and the inequitable administration of justice. Does this law affect the substantial issues around litigation? Does this requirement affect “primary choices”? Would going to non-binding arbitration before trial affect your decision where to bring the suit? Yes. Why? It exposes the arguments and evidence of the other side. You will learn lots of information about your opponent’s case. You might or might not want this. Most plaintiffs’ lawyers will tend to try to avoid arbitration. What’s the Erie analysis? Will this difference in rules affect forum shopping? Yes. This rule will affect primary decisions about where you file the lawsuit. If one goal of Erie is to discourage forum-shopping and thus we’re trying to eliminate any advantage from shifting forums, we want to apply the same rule in federal court as state court, and that means we would use the state rule in federal court.
Is there a Federal Rule or statute on point? If yes, then use it.
If yes, you use the Byrd test which asks if there is an overriding federal interest.
The next three cases don’t add anything to the analysis. Rather, they are applications of the test we already have.
What’s in conflict here? What’s the
How can we understand this in terms of the two tests above?
Is there a Federal Rule on point? Yes, and there’s a conflict, so we use the Federal Rule.
Stewart Organization, Inc. v. Ricoh
What’s the deal here? One party is in
What does Ricoh do that
creates a procedural conflict? Ricoh
moved for transfer of the case or dismissal for improper venue on the basis of
the forum selection clause. Ricoh says, “We
agreed to fight it out in
Our Erie conflict is between the
Both of the above analyses work.
The decision about whether the rule or statute is on point is the real battleground. If you have any hope of applying a state rule, it must be at the “on point” level.
Do we apply the Federal Rule? The Court tells us that this is actually somehow different. The Court says that Rule 3 does not affect the statute of limitations, for some reason. The Court gyrates out of the seemingly clear conclusion from the one-sentence-long Rule 3. The Court suggests that there is not a federal statute on point. Once we get there, the opinion makes sense because the twin aims of Erie really are affected. In one forum, you’ll be able to sue, while in another forum you can’t.
This seems a lot like the service issue of Hanna. The Court says that this rule would influence your behavior in filing the lawsuit.
It’s possible to use these scholarly rubrics to answer some of the more complicated questions.
The ghost of Ragan
This was part of the trilogy that came after the outcome-determinative test. The Court was unwilling to let go and reverse itself. Thus, the Court continues to maintain that Rule 3 is trumped by state exception statutes.
Gasperini v. Center for Humanities, Inc.
This is all about the
conflict between the good ol’ Seventh Amendment and
The plaintiff gets a big judgment,
and on appeal it was attacked as too high.
This is the least helpful of
Tomorrow, we’ll start with Ohio stuff.