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Civil Procedure Outline Professor Holden-Smith, Fall 2004 Sibbuch v. Wilson Is Rule 35 allowing a court to compel a physical examination within REA authority? Sibbuch claims that REA allowed only for procedural rules that affected unimportant rights, but not those that effect important rights. Important rights affected by procedure must be under State law under the Conformity act. Roberts There is no important/unimportant distinction but the REA allows rules in the whole realm of procedure Sets up the Substance v. Procedure distinction that is more refined later by Erie, Hanna, et al. PLEADING Pleading Rules (Rule 8) - Complaint need only be a short plain statement of the claim, o Very lenient standard of pleading - Need not plead a specific theory (Tort or K) nor plead the underlying facts (Siercinski, dynamite cap explosion case. See e.g. Form 9). Lack of specificity not a basis for 12(b)(6). o Facts are to be developed in interrogatories, not pleadings. o Any averments which require a response are deemed admitted if no response is given o Parties can claim separate alternative theories of claim or defense even if they are contradictory o FRCP aimed to simplify pleading notice pleading only complaint should only be dismissed for failure to state a claim if clear that no facts can be proven to support the claim (Conley v. Gibson) o Plaintiff needs to plead some legal theory on which relief could be granted (Kirksey v. RJ Reynolds) Signing Pleadings (Rule 11) (a) Every paper must be signed by attorney (b) certifying a reasonable inquiry into the propriety of the paper (c) if not submitted in good faith the court may impose sanctions on the attorney o Limitation on the liberal Rule 8 standard o Pleading must be based on more than mere speculation but require a reasonable inquiry into the basis of the claims (Murphy v. Cuomo Cap-Stun conspiracy case- didnt research that drug law claim was based on didnt allow private actions) o Safe Harbor party has 21 days after service of a Rule 11 motion to withdraw the improper paper Rule 7 only certain pleadings allowed, others such as response to defenses are only by court order Defenses and Objections to the Complaint (Rule 12) o (a) Answer within 20 days of service, 60 days if service waived under Rule 4(d), US has 60 days o D Can seek Enlargement of Time under 6(b) at courts discretion for excusable neglect o Defense Motions: 12 (b)(2-5) Disfavored Defenses (personal JD, venue, process, service) - technicalities, must be brought pre-answer or with the answer and all together or theyre waived under 12(g) and (h) 12(b)(6,7) (failure to state a claim or join an indispensable party) they go to the merits, can be brought up by motion anytime before trial (waived if not brought up by the end of trial). 12(b)(1) subject matter JD is constitutional question and cannot be waived. 12(f) can be used by P to move to strike affirmative defenses Service of motion does not extend time to answer, but must answer 10 days after denial of motion1 Affirmative defenses or 12(b)(6) cannot first be brought post-trial or judgment (Coleman v. Frierson D first tried to bring defenses after default judgment against them entered) Counter and Cross Claims (Rule 13) o Compulsory Counterclaim a party with a counterclaim from the same transaction/occurrence as the claim against them must bring it as a counterclaim in their answer or it is barred by res judicata Same Evidence Rule - To determine the t/o test, check if the same facts/evidence underlie both claims (Williams v. Robinson divorce, adultery libel case) o Permissive Counterclaim a party with a counterclaim not related to the subject matter of the claim against them may bring the counterclaim in the same suit but are not barred from bringing it separately o Cross-Claims claims between co-parties that involve the same t/o as original claim or counterclaim are permissive (under the FRCP, might be barred under Res Judicata common law?) Amending the Pleadings (Rule 15)
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Asked BHS question on this

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Party can amend their pleading once as a matter of course before responsive pleading has been served or only within if no response is permitted o After that time period can only amend by stipulation or order under 7(b) which shall be freely granted Liberal standard - Court should grant motion to amend if it is in the interest of justice and there was no bad faith or undue delay by amending party and no definite prejudice to other parties. A decision on the actual merits is always preferred over decisions based on mistakes of counsel (Beek v. Aquaslide D allowed to amend answer to deny manufacture right before trial) o Response to amendments must be made by the latter of 20 days from original service or 10 of amended o Variance - Pleadings can be amended to conform to actual evidence that came out in trial unless the other party can show prejudice, if trial differs from pleading with no objection, pleading is deemed amended o Amendments relate back to the original pleading date for SoL purposes when it involves the same t/o. Party even can alter the theory which their claim is based as long as same t/o (Blair v. Durham P changed from negligent handling of materials t negligent construction of scaffold when learned Ds workers werent the ones working) DISCOVERY Methods Initial Disclosures (Rule 26(a)(1)) Either at the Rule 26(f) conference or within 14 days parties required to disclose certain things that would be asked for anyway o Some actions are exempt from disclosure requirement because likely to have little discovery (26(a)(1)(e)) Oral Depositions (Rule 30) pretrial examination and cross-exam of parties (by notice) or non-party by Rule 45 Subpoena or Subpoena Duces Tecum (to come testify and bring documents) o Scope - Lay witnesses cannot be compelled to answer legal questions about the basis for their claim (Umphres v. Shell) but can be compelled to answer fact-oriented questions that dont ask about the legal claim itself but are necessary for the other side to evaluate the legal sufficiency of the claim (Brandenberg v. El Al) - real difference is how the questions are phrased. o Depositions are admissible to impeach testimony or at trial if the deponent is no longer available Written Depositions (Rule 31) seldom used, written questions are presented by an officer to the witness Interrogatories (Rule 33) 25 or less to be served on parties only. Respondent must answer or object within 30 days of service. May answer by attaching or making business records available. o A party cannot be compelled to answer interrogatories requesting information about other parties (OBrien local union didnt have to respond to questions about national union) o Scope - Larger than depositions may ask questions about legal theories and application of the law to the facts, only exception is questions of pure law unrelated to the facts of the case (OBrien) Requests for Admissions (Rule 36) May serve on parties only, requests to admit truth of statement or genuineness of document, must be answered in 30 days or deemed admitted. Requests for Production of Documents or Things (Rule 34) may request copies of documents or tangible things. Very broad scope. Physical/Mental Exams (Rule 35) Parties only or non-parties under partys control. Only by Order granted for good cause that the mental or physical condition is in controversy. o In controversy is defined narrowly court is less likely to order an exam of a D than of a P especially if it is overbroad request. Need to first prove the condition is in controversy then that theres also good cause for exams (Schlagenhauf greyhound driver D not ordered to undergo 9 exams) Sanctions for Failure to Comply (Rule 37) If a party fails to voluntarily comply, party can move for order to compel, if they ignore the order the court has various sanctions (contempt, striking of pleading, bar evidence) Pretrial Conferences (Rule 16) court can order conference to better manage pretrial activities and encourage settlement. Parties enter into a binding pre-trial conference order. Court couldnt compel a party to conduct discovery at all if it didnt want to (Identiseal) or conduct settlement negotiations (Strandell) but this might not be good law under the amendments that say the purpose is to manage case and encourage settlement. Court can require stipulated statement of facts (amendment to the rule essentially reversing JF Edwards which held not). o Court may preclude a party from changing theory or evidence at trial from the PC stipulations (Shuber) Effect Non-Binding Discovery responses are not binding at trial and may be contradicted by the party leaving the question to the jury whether to believe the discovery answer or the trial evidence (Freed v. Lackawanna D contradicted their response to an interrogatory at trial, court told jury to decide which it believed.) o

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Duty to Amend (Rule 26(e)) If a party learns that their response is materially incorrect/incomplete they must amend or supplement their response Scope Rule 26(b)(1) Broad - any matter not privileged relevant to the subject matter of the litigation and need not be admissible at trial as long as it is reasonably calculated to lead to discovery of admissible evidence Hickman Work-Product Doctrine Protection of {documents} prepared in anticipation of litigation2 o Ordinary Work Product e.g. witness statements, seeking party has the burden to show a substantial need for that the material and that its equivalent is not otherwise available Privilege can be pierced when very important and no equal source elsewhere (Rackers skidmarks) o Opinion Work Product e.g. memos, mental impressions almost never discoverable o Rule 26(b)(3) expands Hickman to include protection for work by non-lawyers (investigators, adjustors) and grants absolute privilege to opinion work product. But only applies to tangible documents or things while Hickman applies to all discovery. Opinion WP from terminated litigation is not even discoverable in a later action (Duplan) Scope No protection of the facts that party can simply request through interrogatories party must respond with the facts even if gathered with an eye toward litigation. Only protects tangible things. o Waiver WP Privilege is waived if a party calls a witness to testify about documents contents (Nobles) o Exception Usual showing not needed to obtain a copy of their own statement made before litigation Attorney-Client Privilege absolute privilege from discovering the contents of attorney-client communications o Applies to all employees of a corporation, not only upper management control group (Upjohn) o Communications are privileged, not the information party can seek the facts by other methods such as conducting their own depositions of the party (Upjohn) PRETRIAL DISMISSAL Judgment on the Pleadings - Rule 12(c) Similar to 12(b)(6), pleadings are insufficient as a matter of law to establish a claim or defense. For motions purposes all allegations are taken as admitted, only the pleadings can be brought in (otherwise its an SJ motion). If successful, usually court will grant leave to amend, not dismissal. Summary Judgment (Rule 56) made at any time, goes to the merits claims there is no triable issue of material fact, therefore the case can be adjudicated as a matter of law judges use more now than they used to. PROVISIONAL REMEDIES Attachment / Garnishment (Rule 64) To prevent D from spending money that may eventually be owed, P can use the state courts attachment or garnishment provisional remedy laws. Preliminary Injunction (Rule 65(a)) To preemptively prevent harm that P might suffer by Ds actions, P can seek a PI to enjoin the D from doing it before the full trial on the merits. Requires a hearing on notice to D. o Factors - balance the harms Requires showing of irreparable injury such as violations of Constitutional Rights or if P might suffer unquantifiable or uncollectible damages Posners Approach: should be granted if the probability of the P winning times the harm done to the P by no injunction is higher than the probability of the P losing times the harm done to the D by the injunction (American Hospital Supply) Sliding Scale Approach look at both together the stronger the probability of P winning, the lower the showing of irreparable injury required, the lower probability of winning, the stronger showing of irreparable injury required. (Sonesta and majority view)3 o Appellate courts should give deference to trial courts PI determinations (American Hospital Supply) o Findings of fact for PI purposes are temporary and left to the jury for the final decision, SJ cannot use the judges preliminary fact determinations as there are different standards for PI and SJ (Country Home) Temporary Retraining Order (Rule 65(b)) When too urgent for notice and a full hearing and irreparable harm would be immediate P can seek a TRO unilaterally that lasts for 10 days max, but extendable until the hearing. TRIAL Right to Jury (Rule 38) Parties have a 7th amendment right to trial by jury in actions at Law, but must file a Jury Demand within 10 days of the service of the last pleading. Failure to timely demand waives the right.
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Not sure if this applies to facts also waiting for a response from BHS I dont understand the difference, Ive asked BHS

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Number of Jurors (Rule 48) Must be between 6-12, need at least 6 for verdict. Verdict must be unanimous. o Juries of less than 12 are constitutional even though at common law they were 12 because they are functionally equivalent (Colgrove Montana District local rule called for only 6 jurors.) o No required number or unanimity of State civil juries since 7th Amendment Right to Jury is only federal Selection of Jurors (Rule 47) Jurors can be dismissed for cause if they show potential bias. Each side also has 3 peremptory challenges they can use without showing cause. o Litigants can't use peremptory strikes in civil actions to exclude jurors based on race (Edmonson applying strict scrutiny) or based on gender (JEB v. Alabama for child support applying intermediate scrutiny) Rules of Evidence o Opinion testimony only by qualified experts as determined by the judge (ROE 104(a)) , o Judicial Notice judge can instruct jury that something is certainly true without need for evidence o Relevancy- only evidence relevant to the actual question is admissible (Sherrod - the fact that the person shot by cops was found to be unarmed later not relevant to whether they thought he was a danger) o Probative Value judge may exclude evidence if its probative value outweighed by its prejudicial effect o Competency witnesses can be excluded if incompetent under the States competency rules o Privilege certain relationships are privileged because of policy and one cannot be compelled to testify about communications them even though they may be relevant and probative Cannot appeal based for erroneous admission since supposed to be excluded for policy protecting the relationship not the party - the party isn't the one harmed by piercing of the privilege unless they were also the litigant in which case they were the one harmed and then can appeal o Hearsay exclusion of evidence attempting to prove the truth of an assertion by evidence of the out of court statement (testimony by A that A heard B tell C x to prove truth of x) o Admissible Hearsay- when no other source available or we can trust B even without him being in court Dying Declaration hearsay of it is admissible because assume dying declarant wouldnt lie Declaration against Interest hearsay of unavailable nonparty making one is admissible Admissions testimony by someone that a party had said something that contradicts a current assertion theyre making (not really even hearsay since the party is in court). Res Gestae spontaneous utterances at the time of some shocking event that relates to the event Must be so close in time to the event so fabrication is unlikely (Handel, dissenting) Judgment as a Matter of Law (JML) after either side has rested either can move for JML if other failed: o Burden of Production didnt produce evidence that could lead a jury to find in their favor taking all reasonable inferences in favor of the non-movant nor questioning their credibility (Rule 50(a)) o Burden of Persuasion to persuade by a 51% only at a bench trial, called Judgment on Partial Findings (Rule 52(c)). Minority View Judge can even weigh evidence and grant JML if believes that no reasonable jury could have been persuaded to 51% Verdicts o General Verdict Judge instructs jury on the law, jury finds facts and applies them for the final decision o Special Verdict Jury is given specific fact-finding questions and answers those, judge applies the law Objections Except for plain errors, to preserve for appeal, party must object to an instruction given or the courts refusal to give an instruction before the jury retires (Rule 51(c,d)) POST-TRIAL Renewed Motion for JML (Rule 50(b)) made by losing party on the verdict, only can be made if JML was made before verdict, must be filed within 10 days of entry of judgment, same legal standard as the JML o Judges prefer to grant RMJML over MJML so in case theyre reversed theres no need for new trial o Its renewed so in theory its not reversing the jury (7th Am. problem) but granting JML retroactively Motion for New Trial (Rule 59) Judge can set aside verdict if it is against the weight of the evidence a lower standard than RMJML - judge can weigh evidence and credibility to fact-find himself. Motion must be made within 10 days from entry of judgment. o Not a 7th amendment violation since it existed at common law when 7th am. was passed JUDGMENTS AND RELIEF Damages coercive - compensatory, restitution, punitive or nominal monetary judgments o Party may not institute a second action to recover litigation expenses from the first (Ritter) Injunctions coercive equitable relief enjoining or ordering some action

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Declaratory Relief (2201) non-coercive, in a case of actual controversy court can make a declaration of the rights and legal relations of the parties o Actual Controversy means a real issue at stake not an abstract question of law but the question is of degree if theres a real disagreement and threatened immediate, irreparable harm if a contingency is fulfilled, there is enough controversy for the court to declare their rights if that contingency were to happen (American Machine dispute over right to continue operation if terminated the K) o Purpose is to avoid unnecessary and avoidable damages by DJ beforehand (American Machine) o Courts are reluctant to pass DJ on interpretation of a statute before the statute has actually been applied even if the agency has indicated how it plans to apply it (International Longshoremens refuse to declare meaning of statute that INS said it would use to not allow resident aliens back in from Alaska) ENFORCEMENT OF JUDGMENT Not before 11th day from entry of judgment (Rule 62(a)) Equitable Judgments They are court orders so can be enforced through finding of contempt Money Judgments Are not orders to pay so must be enforced through separate court order o Writ of Execution (Rule 69) Writ issued in accordance with forum states procedures (see Gabovitch) o Supplementary Proceedings judgment debtor and others can be called to testify about assets APPELLATE REVIEW Final Decision Rule (1291) Only decisions that end litigation can be appealed from o Summary Judgment order for P is not final decision or appealable until liability determined (Dilly) o Judge can order final decisions as to distinct parts of a case, distinct parties or claims (Rule 54(b)) Exceptions to Final Decision Rule o Interlocutory Appeals (1292(a)(1)) Appeals before final decisions can be had from injunctions o Certified Question (1292(b)) Trial court asks for appellate decision as to a controlling question of law with room for disagreement, appellate court can hear it at its discretion o Writ of Mandate (1651) Party may seek a writ in a new action in the appellate court v. the trial court seeking a mandate to the trial judge to reverse himself rarely granted, only for very important issues o Non-Party Contempt non-parties have the right of immediate appeal from contempt orders Timing and Stays filed within 30 days of entry of judgment should be filed on day 10 because judgment is enforceable on day 11. Enforcement may be stayed pending appeal by order of the judge and submission of a bond by appellant (Rule 62(d)). o Test for whether to grant stay of enforcement pending appeal is like test for preliminary injunction plus public interest factors (Long v Robinson if 16 could be considered adults and imprisoned as such). Appeal to the Supreme Court Court can grant discretionary certiorari to o Certified questions from a court of appeals o Any case once its in the courts of appeals even before a final decision there (1254) o State supreme court cases if they involve federal questions SUBJECT MATTER JURISDICTION - Article III 2 Federal Question JD ( 1331) Cases arising under the constitution, the laws and treaties of the US o Well Pleaded Complaint Rule The federal question must be part of the plaintiffs claim for recovery, not what they anticipate a defense response to be. Majority rule is that declaratory judgment actions must meet the well-pleaded complaint rule in the reciprocal as if the P was the D and the action was brought after the fact. Minority rule however is to apply the WPC Rule to the actual DJ Complaint. o Usually concurrent state JD, but some statutes give exclusive federal JD in some cases, e.g. patents Diversity JD (1332) when the amount in controversy exceeds $75,000 and the parties are (1) Citizens of different states (2) citizens of a state and citizens of a foreign country (3) citizens of different states where foreign citizens are additional parties4 (4) a foreign government as a P o 11th Amendment States have immunity from suits by citizens of their own or other states in federal court unless they waive it (applies to federal question JD as well) o Complete Diversity all Ps must be able to sue all Ds separately, therefore no two parties on opposite sides of v can be from the same state (Strawbridge v. Curtis)

How is this different from (2)??

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Some courts have read 1331 narrowly and citizens to mean plural only (NY, NY v. France, France) but most allow even 1 party on each side o Even if 1331 would literally grant JD, no diversity JD between two non-US citizens (unconstitutional) o Split between courts over whether NY, France v. OH, France has diversity since France v. France couldnt sue separately (unconstitutional) and not really complete diversity o Natural Persons citizen means where one is domiciled their residence even if not legally a citizen Domicile is based on when the action was commenced, later movement is irrelevant (Baker v. Keck moved to different state so he could sue in diversity) Motive for moving is irrelevant, one can move solely to establish diversity (Baker) Domicile is where one intends to reside indefinitely, floating ideas of moving are irrelevant o Corporations are domiciled in their states of their incorporation and principle place of business When the bulk of a companys activity goes on in one state, that state is the principle place of business, even if the nerve center is in another state (Kelly v. US Steel) If the companys daily activities are dispersed, the nerve center state is the PPB (Egan v. AA) ??? (Anniston v. Central Foundry not sure what this case says! o Unincorporated Associations have domicile in every state where a member is domiciled Removal JD (1441) If an action was brought in state court that a district court also had original JD over, the defendant(s) can remove it to the district that covers the location of the state court where the action is pending o All federal question cases are removable o Only actions that could have been brought originally in federal court may be removed, defendants cannot remove based on federal defenses o If any defendant is a citizen of the state where the action was brought, it is not removable o All defendants must consent to removal o Removal must be sought within 30 days of service of complaint o Court can re-align the P/Ds based on real interests if alignment would destroy diversity or prevent removal (often an issue in declaratory judgment actions for insurance coverage) VENUE (1391) o General Rules Generally the district where a substantial part of the events occurred If all Ds reside in the same state venue is also proper in any district where any D resides Default - if no other proper venue any district court where D can be found o Residence Citizens same requirements as for diversity jurisdiction for natural people Aliens have no residence so can be sued in any federal district Corporations can be sued any district where they are doing business Unincorporated Associations equivalent to corporations JOINDER Joinder of Claims (Rule 18) Parties may join as many claims against as they have against other parties (liberal) Joinder of Parties parties that can or should be joined in the same action o Compulsory Joinder (Rule 19) - parties that are needed for a just adjudication, complete relief cannot be granted in their absence because the non-joined party would be prejudiced or the joined parties may be exposed to double-liability or inconsistent rulings Court can dismiss for failure to join indispensable party, or find a way to adjudicate in their absence so as to avoid whatever problems of non-joinder would cause o Permissive Joinder (Rule 20) Ps with claims arising out of the same T/O can by joined as Ps or Ds being sued for the same T/O can be joined as Ds if there is a common question of law or fact to all them o Interpleader (Rule 22) (?) D facing many Ps for mutually exclusive claims on the same debt can join all the Ps in one action for them to litigate who is entitled to the payment o Intervention (Rule 24) Non-party may bring themselves into a pending suit to protect their interests o Impleader / Third-Party Action (Rule 14) D can implead a 3rd party if the party may be liable to the D for all or part of Ps claim as indemnitor and substantive law allows the claim against the 3rd party D can file 3rd party complaint without leave of the court within 10 days from serving answer or by leave of the court anytime thereafter o

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3 party claim for derivative liability only, not for separate claims against 3 party D, but once impleaded, D can (must under res judicata) join related claims against 3rd party D (Rule 18(a)) 3rd party action is not compulsory, can be brought in totally separate action 3rd party D can assert defenses directly to the main Ps complaint that D could have asserted even if D didnt (prevent collusion against 3rd party D) except for Ds disfavored defenses P can assert claims directly against 3rd party D (amend complaint to add as a direct D) If D asserts counterclaims against P, P can implead a third-party to defend against counterclaims ***see scary retarded handout for other strange confusing rules! o Class Action (Rule 23) a class member may sue or be sued as a representative of the class instead of multiple actions IRRELEVENT STUFF Lassiter v. Dept. of Social Services There is no right to counsel in a hearing to terminate parental rights over a child and the judge can order the state to provide counsel at his sole discretion. There are, however, great dissenting arguments that in the interests of justice counsel should be appointed. Different ADR methods (arbitration, mediation, etc.) Comparative Civil Procedure (German, Spanish systems), eg free access to lawyers even for civil matters HORIZONAL CHOICE OF LAW Choice of which states law to apply Klaxon v. Stentor Federal courts should apply the district courts forum states conflict-of-laws rules to determine which states laws apply to diversity cases Bernhardt v. Polygraphic What state law is on an issue is determined by the most recent high state court decision and must be applied no matter how old unless there is evidence of a movement in lower state courts or state legislature against the old precedent When there is no state precedent: O Federal court can abstain from hearing the case O Federal court can certify questions to the states highest court on how they would rule O Federal court can decide what the states highest could would be likely to decide given the rest of the states jurisprudence (Commissioner v. Bosch) Day & Zimmerman v. Challoner Choice of tort law between Texas or Cambodia for injury to US soldiers during Vietnam war. Klaxon rule still applies and courts cannot apply federal conflict-of-laws rules even if there is a great federal interest in its application (extreme, might be decided differently now). VERTICAL CHOICE OF LAW Choice between federal or state laws Rules of Decision Act diversity courts must apply the laws of the several states as the rules of decision Swift v. Tyson Swift rule applied for years only state statutes applied in federal diversity actions, federal courts applied general federal common law for the rest of substantive law. Spawned from the theory that there is a transcendental body of gods natural law that federal courts were able to find as well or better than state courts. Purpose was to lead to uniform federal and state common laws as states would apply federal precedent. This led to forum shopping to federal court by Ps when the state common law was undesirable. Erie v. Tompkins Overruled Swift rule, ruled that federal diversity cases must apply state substantive law, including common law doctrines while they may use federal procedural rules o Purposes Promote uniform application of state laws to state created actions (Swift failed and may have created an equal protection problem in the inconsistent application of state laws) Prevent forum shopping such as in Black and White Taxi (company re-incorporated in another state to gain diversity and federal common law) Cities Service Oil v. Dunlap Burdens of proof rules are substantive not procedural and state rules apply Guaranty Trust v. York Outcome-Determinative Test state rules/laws that would significantly affect the result of litigation are substantive (statutes of limitations in this case). Diversity courts cannot hear state created right cases that would not be able to be heard in state courts. Mechanical test. o Ragan v. Merchants State rule tolling SoL from service apply in diversity cases despite federal practice of tolling from filing of summons and complaint o Woods v. Interstate State door-closing statute barring corporations from suing in state court if they have no agent for service in the state bars the corporation from suing in federal diversity as well.
rd rd

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Cohen v. Beneficial State statute barring suit by small shareholder against company without putting up bond first also barred from suit in federal court without putting up the bond o Bernhardt v. Polygraphic State law holding arbitration agreements unenforceable is substantive and applies despite federal law allowing for them (federal law should be read narrowly so no conflict) Byrd v. Blue Ridge response to mechanical York decisions, choice between state and federal law should be based on the competing interests. Three step balancing: (1) what is the state interest in their rule and how important is it? (2) What are the countervailing federal interests in applying federal practice and how important (3) Would there be a definitely different outcome if the federal practice applied instead of the state: [If the State Interest is greater than the federal interest less the outcome determinative effect state wins, if federal interest less outcome determinative effect is greater than federal interest federal wins.] Hanna v. Plumer - response to unworkable Byrd balancing. o Hanna/Sibbuch Line If a state procedural rule is in direct conflict with a FRCP the FRCP controls if it is constitutional and within the REA, very unlikely for a FRCP to be invalid. Court can however read FRCP more broad or narrow so there is or isn't a direct conflict. o Hanna/Erie Line Where there is no FRCP in conflict, consider the state rule with a view to the twin aims of Erie If ignoring the state rule will result in forum shopping or inequitable administration of state law then state practice should be applied Szantay v. Beech Aircraft appeals court applied Byrd balancing even after Hanna to find that the state interest in not adjudicating non-state entity disputes was overruled by federal interests. Under the Hanna rules - there is no FRCP and would result in forum shopping so the case should have been barred in federal court. When the mechanical Hanna tests would lead to an unwanted result, courts would use Byrd balancing instead. Walker v. Armco Steel same question as in Ragan, court upheld the Ragan decision while FRCP rules when an action is commenced, the state rule for SoL tolling from service should be applied reads the FRCP narrowly to avoid a conflict. Emphasized stare decisis especially in Erie-type questions. Burlington Northern RR v. Woods Question of whether state rule adding interest onto judgments when a judgment is stayed pending appeal and the appeal fails. Court read FRCP 38 broadly so would control the conflict when applying Hanna/Sibbuch test and denied interest. Gasperini v. Center for Humanities the substantive purpose of a law and the procedural aspects can be separated so that the federal court can apply the substantive state policy while not interfering with federal procedures. Standard of review of jury verdicts is substantive and state law should apply, under the Hanna/Erie analysis (court read Rule 59 narrowly to application of Hanna/Sibbuch). Court then also applies Byrd balancing to the procedural aspect of which court rules on the jury verdict, finding a prevailing federal interest in the TC doing it. Point here is that simple mechanical rules dont work, but are only a starting point. Hanna/Byrd5 - Courts will apply either Hanna or Byrd depending on which seems most fair in that case, thus creating precedent as to which issues are controlled by whos law which binds future decisions (hence the Day & Zimmerman and Walker decisions upholding prior precedent). Congress can specifically legislate whether state or federal substantive law will apply (subject to constitutionality). E.g. Evidence Rule 501 applies state privilege laws but 601 applies federal common law of admissibility of subsequent remedial measures. o APPLICATION OF FEDERAL SUBSTANTIVE LAW Clearfield Trust v. US federal common law not PA common law applies to the issue of timely notice or forged endorsement on a US treasury check. Despite source of law being state, federal government has high interest in federally issued commercial paper therefore federal not state common law applies. Opposite side of the spectrum from Erie, here federal substantive law applies because of high federal interests. o Kinetic State door-closing statute doesnt apply in federal Patents action since 1) patents are high federal interest 2) federal court has exclusive JD over patents, no state interest in their statute applying o Bank of America in litigation regarding federal bonds state law could apply to the question of the burden of proof, but federal law had to apply to the question of overdue-ness since that is a question of the rights/obligations of federally issue commercial paper.

Not called this by Prof. Holden-Smith, but alluded to. waiting for response to email

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Yazell State has high interest in family property arrangements therefore state coveture law (women can't enter Ks) applies even in an action by the US to collect on a federal loan. US v. Kimbell Citing Clearfield, federal common law should apply to US run loan programs question of whether the US or private lenders have priority of security on a competing lien since its an area of high federal interest. Federal common law however can (and did here) adapt each states common law subject to federal review Illinois v. Milwaukee pollution of interstate waters is an area of high federal interest so federal common law of nuisance would apply however Congress (during litigation) passed the Clear Water Act therefore the statute controls. o CASES IN STATE COURTS INVERSE ERIE Supremacy Clause Federal laws can mandate that federal substantive law is to be applied in state courts in certain actions, but not all federal laws that create causes of action do so. Inverse Erie State courts enforcing federal claims apply federal substantive law and state procedural law o Hinderlinder v. La Plata case in state court over the rights of litigants to interstate state waters must apply federal common law because interstate waters are a federal issue Not Really Inverse In some areas recognized as procedural in Erie cases and therefore applying federal rules in federal court, in Reverse Erie state court cases even some federal procedures apply if theres a high interest in federal procedure applying to the federal claim o Dice v. Akron FELA case in state court must apply federal procedure that a jury not a judge (as was the state practice) make the determination of whether there was fraud. o Brown v. Western Railway FELA case in Georgia couldnt follow Georgia procedure of construing the pleadings against the pleader but had to follow federal procedure of construing pleadings most favorably to the pleader o Norfolk & Western RW v. Liepelt FELA case, state court should have applied the federal procedure allowing for jury to be instructed that any award is tax-free o Felder v. Casey Federal civil rights claim brought in state court against police, Supreme Court held that Ps failure to comply with the state notice of claim statute (a procedural requirement that those suing public entities to put them on notice within a certain amount of time) does not bar the action. Explanation under the supremacy clause, even procedural rules of states shouldnt affect the enforcement of federally created rights or undermine their purposes. Result State interest must be very high for states to apply state rules that may be outcome determinative when adjudicating an action based on federal claims.