Civil Procedure Class Notes 10/27/03


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 Ohio judges.  It took five and half hours to get through the first three rules.  Ohio judges are very uninterested in Federal Rules and policy.  They are interested in answers, according to Fairman.




There was some confusion as to the last hypothetical we went over in applying Byrd.


Easy Erie is simple.  State law at the level of duty is clearly substantive and shall be applied.  Erie doesn’t actually help us answer most questions that are usually called “Erie questions”.


York expands upon the rule of Erie with the outcome-determinative test.  However, this proves problematic, and gives us Eerie Erie.


In response to this eeriness, the Court gives us the Byrd balancing test.


I don’t care!!!


Hanna v. Plumer


The court is unsatisfied with the existing arrangement and gives us another way to answer Erie questions.  How do we put Erie, York, and Byrd together with Hanna in order to describe a unified Erie doctrine?


There was a car accident in South Carolina.  Who are Hanna and Plumer?  Hanna is an Ohio citizen.  Was Plumer involved in the accident?  No.  Plumer is the executor.  Osgood was involved in the wreck and died.


What do we do?  The lawsuit is filed in Massachusetts.  What is the Erie conflict?  It’s all about service of process.  Rule 4 says lots of stuff about how process should be served.  Rule 4(e) says that we can live a copy of the summons and complaint at the individual’s abode.


Warren says use Rule 4.  Now, it gets murky.  GREAT!  The reason we’ll use Rule 4 is because it’s grounded in a specific grant of federal authority to the court.


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.


Warren says that “Outcome-determination analysis was never intended to serve as a talisman.”  But isn’t it true that every bit of procedure is outcome-determinative?  That’s not the standard we want.


The twin aims of Erie


1.     Discourage forum-shopping

2.     Avoid inequitable administration of justice


Warren says that Erie has never been used to cancel out a Federal Rule, but wasn’t that the case in Ragan?


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” Erie questions: not the ones about the use of the Federal Rules, but the questions where there aren’t any rules on point.


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 Erie.  That’s Hanna dicta.


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?


Some hypotheticals


State law requires pleadings to be stated with substantial factual detail.  There are certain Ohio causes of action that require that you plead factual detail.  In a diversity action, shall we follow this rule?  Is there a Federal Rule?  Yes, Federal Rule 8(a), which requires notice pleading.  You need no factual detail.  Is there a conflict?  Yes.  There is a direct conflict.  Is Rule 8(a) within the REA?  Yes, so we use the Federal Rule.  That must be the outcome.  But amazingly, there are many cases where the federal courts don’t actually do that.


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.


Another test


Is there a Federal Rule or statute on point?  If yes, then use it.


If not, then we’re into the murkier Erie guess.  It’s suggested that we ask the York question: is the rule outcome-determinative?  If not, then you use the Federal Rule.


If yes, you use the Byrd test which asks if there is an overriding federal interest.


If there is a FRCP or statute, we use Hanna.  On the other hand, if there isn’t, we use a combination of York and Byrd.


The next three cases don’t add anything to the analysis.  Rather, they are applications of the test we already have.


Burlington Northern Railroad v. Woods


What’s in conflict here?  What’s the Erie question?  There’s a Federal Rule that says you can fine someone if they file a frivolous appeal.  The state rule says if you win and you’re affirmed on appeal, you get an extra 10% damages.  Why would Alabama have a rule like that?  It’s designed to discourage appeals.  They’re trying to make you really think about whether or not you want to file an appeal.  We have a Federal Rule that deals with frivolous appeals, but it leaves the penalty to the discretion of the federal court.


The Erie choice is between the Alabama “specific” rule, or the “discretionary” Federal Rule.  The Court rules that the Federal Rule wins!


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 Alabama, and the other party is from someplace else.  In the contract, they had a forum selection clause that established New York as the forum.  Why New York when it’s a dispute between a New Jersey business and an Alabama business?  A forum selection clause doesn’t have to specify a forum that either company 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 New York.  You sued me in Alabama.  I want to get outta here!”


Our Erie conflict is between the Alabama precedent (common law) and the federal statute (28 U.S.C. § 1404).  Federal law allows you to transfer, while the Alabama Supreme Court has held that forum selection clauses are invalid based on public policy reasons.  The conflict isn’t the forum selection clause itself, but between Alabama’s common law provision and a federal statute that says that you can move litigation at the discretion of the court.  The Court holds that we shall follow the federal statute.  § 1404(a) wins!


Both of the above analyses work.


Note that Burger King would have had an Erie question if the contract in that case had actually included a forum selection clause.


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.


Walker v. Armco Steel Corp.


We’re in Oklahoma.  A nail explodes and puts someone’s eye out on August 22, 1975.  A suit is filed on August 19, 1977.  The defendant is served on December 1, 1977, outside the statute of limitations.  Oklahoma has a 2-year statute of limitations, and the suit commences with service.  Isn’t this suit similar to York?


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 New York law.


The plaintiff gets a big judgment, and on appeal it was attacked as too high.  New York state law allowed a review of the jury award.  You could do remittitur.  That means taking big judgments and making them smaller.  On the other hand, the Seventh Amendment says that no fact tried by a jury can be reexamined by any other court.


This is the least helpful of the Erie cases.  In this case, Ginsburg says that we can protect both federal and state interests.  The Court rules that the appellate court cannot apply New York law (the Second Circuit was in error) but the federal district court can apply New York law, so it was right.  There is no lesson to take from Gasperini.  Wright called Gasperini “sport”.  There is no rational way you get to that result using any of the previous Erie cases we’ve seen.


Tomorrow, we’ll start with Ohio stuff.


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