Civil Procedure Cases And Materials 11th Edition Jack Friedenthal, Arthur Miller, John Sexton, Helen Hershkoff - Solutions

1. Case developed into a remedy not only for wrongs that were similar to those governed by trespass, but for wrongs that were much more similar to those for which the action of debt was appropriate. Yet case never lost its roots in trespass. Why didn’t actions of debt on the case develop? See
9. “[A]n English bill in the Exchequer.” That part of the report of Veale v. Warner beginning, “But it was a case of the greatest hardship * * * “ is not a part of the record, but is simply the reporter’s justification of his own tactics. An English bill was a bill in equity, so-called
8. Why did Saunders, a thoroughly capable lawyer, file what he knew was an inadequate rejoinder? The answer lies in a peculiar facet of the demurrer:* * * [O]n demurrer the court will consider the whole record, and give judgment for the party, who on the whole, appears to be entitled to it. Thus,
7. “[W]herefore he prays judgment if the said Thomas ought to be admitted, against his own acknowledgment, to say.” Plaintiff in his replication had traversed defendant’s claim of payment. Thus the replication already had created an issue, and defendant’s rejoinder could not be one of the
6. “[W]herefore he prays judgment if the said Thomas ought to have or maintain his said action.” This is the standard conclusion of a pleading in confession and avoidance. Compare the conclusion of plaintiff’s replication in the next paragraph of the report of the case. Why was defendant’s
5. “[T]o the Court * * * now here shewn”; “prays oyer.” A plaintiff suing upon a deed or a bond made profert of the document that is, the plaintiff formally tendered it to the court, although it was strictly speaking not a part of the pleading. If defendant wanted to get the document in the
4. “[I]n the parish of St. Mary-le Bow in the ward of Cheap.” As the jury originally decided cases on its own knowledge, it was necessary that jurors be drawn from the vicinity in which a transaction had occurred; the action therefore had to be brought near the place at which it arose, and the
3. “[P]ledges of prosecution.” The original writ in a lawsuit directed the sheriff, to whom it was addressed, to take some action, conditioned on plaintiff’s “mak[ing] you secure of prosecuting his claim.” Thus plaintiff had to furnish sureties, who would be liable to pay a fine that was
2. “[H]is * * * bill against William Warner, * * * in the custody of the marshal, & c.”Common Pleas was supposed to have exclusive jurisdiction over actions of debt, such as Veale v. Warner. But the judges and lawyers of each common-law court zealously sought to expand the jurisdiction of their
1. “[B]efore our lord the King at Westminster.” Veale v. Warner was brought in the Court of King’s Bench, one of the three royal common-law courts, maintaining separate existence until merged in the High Court of Justice in 1873. The others were the Court of Common Pleas and the Court of
3. The “modes of decision” for issues of fact, referred to in the extract from Stephen, were, at an early date, “trial” by ordeal, by combat, and by oath. These were not trials in the sense in which we now understand and use that term; rather they were proofs undertaken by one of the
2. In this discussion we are concerned with pleading in the royal courts. It should be noted that at the time of the Norman Conquest (1066) and for a century or more afterward the ordinary recourse of suitors was not to the royal courts but to local, or communal, courts and to feudal courts in
1. The change from oral to written pleadings cannot be dated precisely. The shift began in the late fourteenth century and extended into the second half of the sixteenth. Predictably the change increased the rigor and technicality of the pleading rules.
5. In AMERICAN ELEC. POWER CO., INC. v. CONNECTICUT, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011), the Court addressed whether plaintiffs, which included several States, New York City, and three private land trusts, could bring federal common law nuisance claims against four private power companies and
4. In 1979, Viet Nam veterans, their spouses, and their children filed a federal lawsuit in the Eastern District of New York alleging injury from the veterans’ exposure to Agent Orange, a phenoxy herbicide that the military used in South East Asia. Defendants were private companies alleged to
3. Does the Boyle defense apply only to military contractors or to any contractor that provides goods and services to the United States? In Silverstein v. Northrop Grumman Corp., 367 N.J. Super. 361, 842 A.2d 881 (Ct.App. Div. 2004), certification denied 181 N.J. 546, 859 A.2d 691 (N.J. 2004), the
2. What is the justification for the contractor’s immunity? Is it to reduce fiscal costs that might be passed on to the United States? Is it to protect government decisions that affect the military? See Green & Matasar, The Supreme Court and the Products Liability Crisis:Lessons from Boyle’s
1. Can the Court’s decision in Boyle be reconciled with its rejection of a federal common law rule in Parnell, see p. 482, supra?
6. Are there limits to the federal court’s lawmaking power? See Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263, 269 (1992). One view is that federal common law should be reserved for use in specialized enclaves that implicate strong federal interests.See Friendly, The Gap
5. BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION v. PARNELL, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956), involved the question of whether defendants had taken bearer bonds, guaranteed by the United States, in good faith, without knowledge or notice of their defects in title. In declining
4. In UNITED STATES v. KIMBELL FOODS, INC., 440 U.S. 715, 99 S. Ct. 1448, 59 L.Ed.2d 711 (1979), the question arose whether federal or state rules should determine whether the federal government or a private creditor had priority and so could collect first on loans issued by the Small Business
3. Upon what sources may the federal court rely in developing a federal common law rule of decision? In many contexts, federal courts derive a federal common law rule from state common law sources, looking not simply at the common law rule of a particular state, but rather at the common law rules
2. How does the federal common law rule recognized in Clearfield Trust differ from general common law under Swift v. Tyson? Is the former rule binding on the states but the latter rule is not? Is your answer constitutionally compelled? See Meltzer, State Court Forfeitures of Federal Rights, 99
1. Why doesn’t the Clearfield Court mention the Rules of Decision Act?
10. Does the sometimes erroneous interpretation of state law by federal diversity courts provide an argument for abolishing diversity jurisdiction? Consider the following:Until corrected by the state supreme court, such incorrect predictions inevitably skew the decisions of persons and businesses
9. In a diversity case, how much weight should a federal appellate court give to a federal district court’s determination of state law? In SALVE REGINA COLLEGE v. RUSSELL, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991), the Court held that the court of appeals should conduct de novo review,
8. In FACTORS ETC., INC. v. PRO ARTS, INC., 652 F.2d 278 (2d Cir. 1981), certiorari denied 456 U.S. 927, 102 S. Ct. 1973, 72 L.Ed.2d 442 (1982), a federal court sitting in New York was required to apply Tennessee law to the question of whether Elvis Presley’s right of publicity survived his
7. A noted federal appellate judge has warned that when interpreting state law, “federal courts often get state law wrong because federal judges don’t know state law and are not the ultimate decisionmakers on it. Inevitably, this leads to considerable forum shopping of just the sort that Erie
6. In TUNICK v. SAFIR, 228 F.3d 135 (2d Cir. 2000), a photographer challenged the locality’s refusal to grant him a permit to conduct a photo shoot of seventy-five to one hundred nude models configured “in an abstract formation” on a residential street in New York City.Tunick claimed that his
5. As an alternative to abstention, a district court may invoke a procedure called certification that allows it to petition a state court to answer an unresolved question of state law. See Challener, Distinguishing Certification from Abstention in Diversity Cases:Postponement versus Abdication of
4. If state law is unclear or unresolved, may the district court conclude “there is simply no law to apply,” and rule against the party with the burden on that question?See Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism AfterErie, 145 U. Pa. L. Rev. 1459,
3. If the state’s highest court has not declared the state law in question, the general view is that “federal courts must act as ‘another court of the State’ and choose from a variety of sources, including high court dicta and lower court rulings” to interpret the law. See Kaye &Weissman,
2. It seems fairly clear that when the state’s highest court has declared the state law in question, the federal court is required to follow the state’s decision. Does that mean that the federal court is required to treat an established state rule as static, or may it consider lower court
1. The history of the privity rule in Mississippi following Mason is interesting. Relying heavily on Judge Magruder’s opinion, the Fifth Circuit held in Grey v. Hayes–Sammons Chem. Co., 310 F.2d 291 (5th Cir.1962), that under Mississippi law a lack of privity was not a bar to a claim by a
4. The Class Action Fairness Act of 2005, amended 28 U.S.C. § 1332 to permit diversity jurisdiction over multistate disputes despite the absence of complete diversity of citizenship.There is disagreement whether under CAFA diversity courts may develop federal choice-oflaw rules. Compare Sherry,
3. In ALLSTATE INSURANCE CO. v. HAGUE, p. 108, supra, the Supreme Court held that a state could apply its substantive law in a case, so long as the state had significant contacts or a significant aggregation of contacts with the parties and the transaction.Doesn’t Hague encourage plaintiffs to
2. Could Congress enact a statute specifying choice-of-law rules for federal courts in diversity cases? In answering this question, remember that, although today every state contains at least one federal judicial district, there is no constitutional provision that compels this. What if Congress had
1. The Supreme Court reaffirmed the Klaxon rule in Day & Zimmermann, Inc. v.Challoner, 423 U.S. 3, 96S.Ct.167, 46 L.Ed.2d 3 (1975), underscoring that the diversity court“is not free to engraft onto * * * state [conflicts] rules exceptions or modifications which * * *have not commended themselves
4. Justice Ginsburg’s dissent relied extensively on the legislative history to the New York rule. In ascertaining the meaning and purpose of a state rule, is a court sitting in diversity obliged to follow the state’s approach to interpreting legislative history, or can it use a different
3. In what respect does Justice Stevens’ concurrence differ from the dissenting opinion authored by Justice Ginsburg? Are you persuaded by the dissenters’ position that Federal Rule 23 does not conflict with the state rule barring class relief in suits seeking penalties?What is the argument?
2. How does the approach taken by the plurality as to when a Federal Rule is valid under 28 U.S.C. § 2072differ from that of the concurrence?
1. In the absence of a majority opinion, does Justice Scalia’s plurality or Justice Stevens’concurrence state the rule to be followed by the district courts in determining when a state rule is displaced by a Federal Rule of Civil Procedure? Why? See p. 132, supra.
3. What are the implications of Gasperini for the application of other Federal Rules?Under Justice Ginsburg’s approach, ought state law provide456the standard for granting summary judgment or a motion to dismiss? See Steinman, What is the ErieDoctrine? (And What Does it Mean for the Contemporary
2. To what extent did the majority’s approach to the “unguided Erie choice” differ from earlier decisions? What role did York play in the analysis? What role did Byrd play in the assessment of the respective state and federal interests? Is it significant that the majority did not discuss Byrd
1. Did the Court apply the Rules of Decision Act or the Rules Enabling Act? Are you persuaded that Federal Rule 59 does not cover the point in dispute? What is the basis for Justice Scalia’s dissenting view that there is a federal standard of excessiveness governing the decision to grant a new
3. In BURLINGTON NORTHERN R. CO. v. WOODS, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987), Woods had obtained a jury verdict against Burlington Northern in a personal injury action prosecuted in an Alabama federal district court. After the verdict had been affirmed on appeal without modification,
2. Can you reconcile the Court’s interpretation of Rule 3 in Walker with its interpretation of Rule 4 in Hanna? Rule 4 says simply that service may be made by leaving a copy of the summons and complaint at the defendant’s home; it does not qualify this permission in any way or say anything
1. Rule 3 does not specify the purposes for which an action is commenced. Two arguments were thus available for the Court in Walker to find that Rule 3 did not operate to toll the Oklahoma statute of limitations. First, the Court could have held that Rule 3 applies only to time requirements in
8. Professor Ely, who served as a law clerk to Chief Justice Warren the term that Hanna was decided, has emphasized the distinct analytic questions that a federal court must consider when faced with a federal-state choice of law question:* * * [T]he indiscriminate admixture of all questions
7. Under Hanna, is a federal court required to apply a state statute that closes the doors of the state courts to suits by foreign corporations that have not registered to do business in the state? Can the Diversity Clause in Article III of the Constitution be said to generate a federal policy that
6. Justice Harlan called Erie “one of the modern cornerstones of our federalism.”Federalism in the United States is associated with a number of different values, including“freedom to experiment,” “flexibility in tailoring regulation to local needs,” “decentralization as a strategy to
5. On what basis did Justice Harlan concur? What does he mean by “primary” decisions of conduct? Are you convinced that these activities are left by “our constitutional system * ** to state regulation”? Do you share his concern that under the majority opinion in Hanna any “arguably
4. Chief Justice Warren asserted that “the Erie rule is rooted in part in a realization that it would be unfair for the character or result of a litigation materially to differ because the suit had been brought in federal court” and “in part a reaction to the practice of
3. Chief Justice Warren’s opinion relied on SIBBACH v. WILSON & CO., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941), to define when a rule is procedural for purposes of 28 U.S.C.§ 2072(a). In Sibbach, plaintiff sued defendant in an Illinois federal district court for damages inflicted in Indiana.
2. The distinction between substance and procedure is important to both the Rules Enabling Act and the Rules of Decision Act. The second sentence of the Rules Enabling Act says that no Federal Rule may “abridge, enlarge, or modify any substantive right,” and the distinction between substance
1. How do the Rules Enabling Act and the Rules of Decision Act interact? Upon which of these two statutes is the holding in Hanna based? Can you explain why?
4. Commentators associate Byrd with a balancing test for determining when state law should displace federal law in a diversity action. Does the balancing test replace the outcomedeterminative test of York? If a state rule is “bound up with the definition of the rights and obligations of the
3. The Court’s analysis concludes with an assessment of whether the judge/jury allocation may affect the outcome. Do you agree with the Court’s conclusion? Is the analysis consistent with York?
2. In the second part of the decision, the Court moved toward a consideration of the importance of the federal interest that is at stake. What does Justice Brennan mean when he writes that “the influence * * * if not the command of the Seventh Amendment” determined the result in Byrd? If the
1. The Court’s analysis in Byrd proceeds in three parts, starting with an analysis of the South Carolina statute. Do you agree with Justice Brennan’s assertion that the South Carolina rule is “merely a form and mode of enforcing the immunity * * * and not a rule intended to be bound up with
6. Evaluate the following passage:
5. Almost any legal rule, whether labeled procedural or substantive, has the potential to affect the outcome of litigation. Does this mean that, after York, a federal court in a diversity case must apply every state legal rule that, if enforced, would affect the outcome of litigation?Does this
4. Four years after York, the Supreme Court, all on the same day, decided a trio of cases involving the Eriedoctrine:RAGAN v. MERCHANTS TRANSFER & WAREHOUSE CO., 337 U.S. 530, 69 S.Ct.1233, 93 L.Ed. 1520 (1949), grew out of a highway accident that occurred on October 1, 1943.On September 4, 1945,
3. To what extent does York require the displacement of a Federal Rule of Civil Procedure in favor of a contrary state practice? Does that result follow from application of the Rules of Decision Act? If not, what is the basis for the Court’s holding?
2. If a New York equity court would not have granted relief for whatever reason, should a federal court sitting in diversity nevertheless grant a remedy? In answering this question, consider Justice Frankfurter’s discussion of the difference between recognizing a statecreated right and providing
1. What purposes do statutes of limitations serve? Are these purposes “substantive”?Procedural? Consider the following comment:Limitations law is famously a body of rules that are neither grass nor hay, being at once both substantive and procedural. In one sense, limitations law is clearly
9. Professors Wright and Kane have said: “It is impossible to overstate the importance of the Eriedecision.” Wright & Kane, Law of Federal Courts 376 (7th ed. 2011). Reactions to the Erie decision voiced shortly after it was handed down include Shulman, The Demise of Swift v. Tyson, 47 Yale
8. Does the Rules of Decision Act require federal courts to follow state procedures as “rules of decision”? Justice Reed’s concurring opinion in Erie emphasized the power of Congress to enact procedures for the federal courts. What constitutional provisions support that assertion? Until the
7. The Court in Swift v. Tyson associated law with transcendent principles that the judiciary discovered. See Ides, The Supreme Court and the Law To Be Applied in Diversity Cases: A Critical Guide to the Development and Application of the Erie Doctrine and Related Problems, 163 F.R.D. 19, 23
6. The Erie decision relied on research that revealed a previously unknown draft of what became the Rules of Decision Act of 1789. The draft read:
5. If discrimination against in-state defendants really is a problem, could it be solved by allowing in-state defendants to remove to federal court? Does it make sense to require federal courts to apply state law in diversity cases simply out of a desire for parity between in-state defendants who
4. Does the statement that the rule in Swift v. Tyson“rendered impossible equal protection of the law” implicate constitutional or policy concerns? Does it matter that at the time of the decision the Court had not yet recognized an equal protection component in the Fifth Amendment? See
3. Of what relevance to Erie’s possible constitutional basis is the reservation of power to the states and the people in the Tenth Amendment to the United States Constitution?
2. What is the constitutional basis for the statement in Erie that “Congress has no power to declare substantive rules of common law applicable in a State” and that “no clause in the Constitution purports to confer such a power upon the federal courts”? Consider, first, Article I of the
1. Is Erie a constitutional decision or does it rest on other grounds? Is it significant to your answer that the Court found the rule of Swift v. Tyson to be unconstitutional, but did not invalidate the Rules of Decision Act? For a skeptical view of Erie’s constitutional basis, see Green,
3. Does it make sense to have the federal courts promulgate general, uniformly applied commercial laws? Why should a person suing in federal court in Oklahoma not receive the same remedy as a person suing in federal court in Vermont? On the other hand, if a federal court sitting in diversity is
2. According to Swift, what is the source of the federal courts’ authority to develop and apply general common law rules in cases heard within the grant of diversity jurisdiction? Is Justice Story’s reading of the words “the law of the several states” in the Rules of Decision Act the only
1. According to Justice Story, why are judicial decisions only evidence of law, and not law itself? On what basis did Justice Story distinguish judicial decisions interpreting state statutes from other judicial decisions? Within this theory, do any state judicial decisions have the force of law?
11. The law is ever changing; so too are lawyers’ strategic assessments of the relative advantages of litigating in the United States rather than in courts abroad. Indeed, commentary has identified a new trend, dubbed “forum shopper’s remorse”:Having obtained what they wished for dismissal
10. Does Sinochem foreclose an appeals court from determining whether a district court had subject-matter jurisdiction in an action removed to federal court and then dismissed on grounds of forum non conveniens? The Ninth Circuit, observing that the suit in Sinochemwas originally filed in the
9. In SINOCHEM INTERNATIONAL CO. LTD. v. MALAYSIA INTERNATIONAL SHIPPING CORP., 549 U.S. 422, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007), the Supreme Court affirmed the dismissal of an action against a Chinese company on the ground of forum non conveniens even though the District395Court had not first
8. Courts are divided as to whether the following factors affect the district court’s discretion to dismiss an action on grounds of forum non conveniens:(a) Federal statutes that include specific venue provisions. See Hoffman &Rowley, Forum Non Conveniens in Federal Statutory Cases, 49 Emory L.J.
7. In making a decision on forum non conveniens grounds, how much weight should be given to plaintiff’s forum preference? In WIWA v. ROYAL DUTCH PETROLEUM CO., 226 F.3d 88 (2d Cir.2000), three Nigerian émigrés living in the United States sued two foreign holding companies alleging that the
6. Assuming an alternative adequate forum is found to exist, the court then is expected to weigh the public and private factors identified in the Gilbert and Pipercases. Should courts rethink the Gilbert and Piperapproach given transportation improvements, multilateral treaties providing for
5. Should an international tribunal such as the International Court of Justice, the World Trade Organization, or the United Nations Compensation Commission ever be an acceptable alternative forum for purposes of forum non conveniens? In NEMARIAM v.FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA, 315 F.3d
4. In TUAZON v. R.J. REYNOLDS TOBACCO CO., 433 F.3d 1163 (9th Cir.2006), plaintiff, a Philippine citizen, filed a federal action in Washington State against a United States tobacco company, alleging defendant’s “participation in a world-wide conspiracy to deny the addictive and harmful effects
3. When considering a forum non conveniens motion, the first step in the court’s analysis is to determine whether there is an adequate alternative forum. In ISLAMIC REPUBLIC OF IRAN v. PAHLAVI, 62 N.Y.2d 474, 478 N.Y.S.2d 597, 467 N.E.2d 245 (1984), certiorari denied 469 U.S. 1108, 105 S.Ct. 783,
2. An empirical study of reported decisions of forum non conveniens motions in the period 1982 2006 concluded that the alternative forum was found to be adequate eighty-two percent of the time and that defendant’s win-rate on such motions exceeds fifty percent. See Lii, An Empirical Examination
1. Lord Denning famously said: “As a moth is drawn to the light, so is a litigant drawn to the United States.” Smith Kline & French Labs. Ltd. v. Bloch, [1983] 2 All E.R. 72, 72 (Eng.C.A. 1982). A foreign plaintiff’s preference for a United States forum rather than one in her home country
13. The circuits are divided on whether the law of the transferor court under 28 U.S.C. §1407 ought to apply to a federal claim. In IN RE KOREAN AIR LINES DISASTER OF SEPT.1, 1983, 829 F.2d 1171, 1174–76(D.C.Cir.1987), affirmed on other grounds sub nom. Chan v.Korean Air Lines, Ltd., 490 U.S.
12. In LEXECON INC. v. MILBERG WEISS BERSHAD HYNES & LERACH, 523 U.S.26, 118 S. Ct. 956, 140 L.Ed.2d 62 (1998), the Supreme Court held that 28 U.S.C. §1407 imposes a duty on the Panel on Multidistrict Litigation to remand a transferred action to its original court for trial, and that the statute
11. In IN RE: MF GLOBAL HOLDINGS LTD. INVESTMENT LITIGATION, 857 F.Supp.2d 1378, 1380–81 (Jud.Pan.Mult.Lit. 2012), defendants in three actions and twelve“tag-along” actions, pending in four districts, moved for centralization. The actions all followed in the wake of a holding company’s
10. An important development in federal venue procedure authorizes the temporary transfer of related cases to one district when the cases involve common questions of fact and law and transfer would be for the convenience of the parties and witnesses and in the interests of justice. See 28 U.S.C. §
9. Is it in the “interests of justice” to dismiss or to transfer a misfiled case in the following circumstances:(a) The original complaint named several “John Doe” defendants with unknown residences, see Bunn v. Gleason, 462 F.Supp.2d 317 (D. Conn. 2006).(b) Defendant was subject to
8. In GOLDLAWR, INC. v. HEIMAN, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962), discussed in the principal case, the Supreme Court held that 28 U.S.C. § 1406 authorizes the transfer of an action even if the transferor court lacks personal jurisdiction. Is this use of Section 1406 now foreclosed
7. When is a district court permitted to transfer under 28 U.S.C. § 1406(a), rather than under Section 1404(a)? When a case is transferred under Section 1406, the court will treat the action as if had been filed initially in the transferee forum. Would it be appropriate to apply the Van Dusen
6. An empirical study found that plaintiff won in fifty-eight percent of nontransferred cases that went to judgment, but only in twenty-nine percent of cases that were transferred.See Clermont & Eisenberg, Exorcising the Evil380of Forum-Shopping, 80 Cornell L. Rev.1507 (1995). The authors concluded
5. When a district court is asked to transfer an action pursuant to a venue-selection clause, should the motion be analyzed under the multifactor test of 28 U.S.C. § 1404 or under the reasonableness test of The Bremen, p. 194, supra? Does your analysis differ if the court is asked to enforce the
4. Of what relevance is the Van Dusen rule when the district court transfers an action within its federal question jurisdiction? See Marcus, Conflict Among Circuits and Transfers Within the Federal Judicial System, 93 Yale L.J. 677, 721 (1984). The circuits currently are divided on this question.
3. To what extent should the transferee court under 28 U.S.C. § 1404 attempt to reach the same result on the merits that would have been reached by the transferor court? In VAN DUSEN v. BARRACK, 376 U.S. 612, 639, 84 S.Ct. 805, 821, 11 L.Ed.2d 945, 962–63 (1964), the Supreme Court held that, in

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Civil Procedure Cases And Materials 11th Edition Jack Friedenthal, Arthur Miller, John Sexton, Helen Hershkoff - Solutions

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