Civil Procedure Class Notes
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
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
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’.