Civil Procedure Class Notes 12/9/03


Are we plannin’ on clappenin’ at the end of this class?


A few reminders about the exam: We will have one!  It will be our last exam, on Friday, Dec. 19th at 9 AM.  We’ll meet in 348 as the primary room.  This room will be a computer-taking room.  You can bring your notes, outline, casebook and rulebook.  The default computer policy applies.  You must turn in either the exam or the disk at the end of the exam period.  Then you go and printy printy!


Fairman will try to be available in his office and by e-mail.  He’s “fairman.3”.


Advice about filling out your course schedule: take Civ Pro II!  (Yeah, and Evidence, and Business Associations, and Criminal Procedure…)  Or take Complex Litigation.  What about summer Civ Pro II?  It’s not always offered.


A procedural vision


Fairman will try to bring to a close what we’ve done in Civil Procedure.  We’ve had a lot of talking heads to tell us about what Civil Procedure is.


Fairman says that it’s all a balancing test between efficiency and equity.  We want to do things cheaply, yet fairly.  There are elements of this balance either explicitly in the courts’ opinions or the statutes that courts apply or embedded in the decisions that have to be made.


For example, look at World-Wide or Asahi…the Court has told us we must balance the five factors.  That, in itself, is essentially a balance between those two competing interests of equity and efficiency.


We saw it in subject matter jurisdiction too.  § 1332, which talks about diversity jurisdiction, allows you to bring a case in federal court that typically would have been heard in state courts.  Why?  Because it’s grounded in the constitutional idea that home state defendants have some kind of advantage, and so out-of-state plaintiffs would be left at a disadvantaged if forced to litigate in out-of-state forums.  On the other hand, we don’t let everything go into federal court, because it would be inefficient.  Therefore, we have the “amount-in-controversy” limitation to screen out unimportant cases.  The statute also involves the “complete diversity” rule, which says we can’t have participants from the same state on the same side of the “v”.


When you look at Gordon and determine citizenship itself, that’s a balancing test too.  Every element of diversity jurisdiction is directed to this balance.


In supplemental jurisdiction, in cases like Gibbs, the “common nucleus of operative fact” principle is an efficiency principle.  We want to bring matters together in a compact “trial package”.  We saw different types of supplemental jurisdiction develop over time.


The statute says, “Let’s bring a case together that’s all one case based on diversity.  On the other hand, let’s take out of that pool those cases that wouldn’t have subject matter jurisdiction under the rule of complete diversity.”  We’re not told explicitly to balance, but implicitly it is suggested.


Removal jurisdiction – the defendant’s forum selection – has a statutory rubric that embodies that same balancing test.  In § 1441(a), we let defendants remove to a federal forum if they could have originally been brought there.  The reason is simple: equity.  Yet, we’ll place efficiency limitations on that: you have 30 days to do it.  We also have statutory controls that say if you have an in-state defendant, that will anchor the claim and make it non-removable.  This is in part a matter of efficiency, but it’s also equity because a defendant in their home state court shouldn’t complain about being in their home state because it gives them an advantage.


Easy Erie tells us we’ll look at the law of the state for the rules for making basic decisions in diversity cases in federal court.  As Erie evolves into the choice between “substance” and “procedure”, we get more balancing tests.  Under the Byrd analysis, we have to balance the federal interest against the state interest.  The rubric Byrd provided got us to the Guaranty Trust question.  Hanna allows us to balance countervailing federal considerations, and even provides a refinement.  The courts say: let’s look at it a different way when we look at federal rules on point.  Rather than go through the traditional analysis, Hanna tells us we must use the FRCP when we have them and avoid the outcome-determinative test we were initially given.  We look instead at Erie’s twin-aims: that’s a pretty explicit efficiency/equity balancing test.


Choice of law is another place where we see the balancing test.  In deciding choice of law, the Restatement tells us that the transactional test that most jurisdictions use is a balancing test that are used to see which jurisdiction has the closest relationship to the claim.  Where did the claim arise?  Where are the parties?  We want to make it easy to litigate issues like this, but we want to make it equitable by ensuring some relationship between the law we choose and the participants in the event.


We even saw this balance in the “survey” portion of the course.  In the “decision to litigate” category, we recall Fuentes.  In resolving what sort of process is due to Ms. Fuentes, we must balance efficiency and equity.  There must be notice and a hearing, but the type of notice and hearing can vary based on the reason rights are being deprived.


We looked at the Federal Rules of Civil Procedure themselves, such as Rule 11, which requires me as an attorney to sign papers that are filed with the court.  On the other hand, Rule 8 says we shall use notice pleading, which means we don’t need to put all the info into the initial pleading.  Fairman argues that Rules 8 and 11 are in conflict…and it’s just that same conflict between efficiency and equity.


Nowhere is this balancing clearer than in the joinder rules.  Rule 20 is an efficiency rule: let’s bring in everyone we can.  Rule 19 says: bring them in if they’re necessary.  However, it tempers this impulse with efficiency.  Are those parties really necessary?


How about summary judgment?  When we take a case away from a jury, we are affecting the equity interests of the parties that are litigating.  We do that when there’s nothing to actually be tried because it’s more efficient.  Why would we want to waste time and money on a trial when there are no facts in dispute, or the law tells us what the result will be based on the facts already admitted?  Based on the Celotex standard, we may deny you your day in court in the name of efficiency.


How about preclusion?  Claim preclusion will strike away claims you could have litigated but didn’t bring.  Issue preclusion allows “already litigated and decided” facts to be used against you in subsequent litigation.  We say: you had your opportunity.  If you’ve had your chance, you don’t get another bite at that apple.  So the reason for the doctrine of preclusion is the balance of efficiency and equity.


But this balance is not self-effectuating.  It’s our role from here on out to help a variety of clients to come up with the proper balance.  You’ll work with clients, lawyers, and judges depending on us to tell them why the balance should be struck one way or another.  We looked at old cases so that we would have a better understand of where our modern balancing tests came from.


Fairman would like to be a judge, so be sure to nominate him!


The minutia of Civil Procedure will eventually fade away.  Remember where you fit into the history of the rules.  The rules were crafted by Charles Clark from Yale.  His student at Yale and his law clerk was Charles Wright.  His student was Fairman, and Fairman’s student is us!


What is it that is procedure?  Wright said “It’s all about the just, speedy and inexpensive determination of every action.”  Well…yeah, but…that’s Rule 1.  Very funny.  That’s what the rules are about.


Fairman says that it all boils down to procedure at some point.


Yep, we are clappenin’.


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