CIVIL PROCEDURE CLASS 42

Professor FischerColumbus School of LawThe Catholic University of AmericaDec 2, 2005

ANNOUNCEMENTS

Exam review classe: Tuesday Dec. 13 11 a.m. RoomExam is completely open book.

EXAM TIPS

Read questions carefully and remember to answer the question askedUse IRAC form for each issue in questionAnswer every question; manage your time carefullyGet sufficient sleep the night before the exam.

FORUM NON CONVENIENS

Compare this doctrine with:28 U.S.C. § 140428 US.C. § 1406

28 U.S.C. § 1404

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been broughtPIPER - After removal to US District Court for Central District of CA, action is transferred to US District Court for Middle District of PACases are usually transferred under this section between federal district courts rather than dismissed for forum non conveniens

Improper Venue Provision

28 U.S.C. § 1406(a) permits court to dismiss if venue has improperly been laid “or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought”

Piper Aircraft Co. v. ReynoWrongful death suit originally brought in Superior Court of California by Gaynell Reyno on behalf of 5 Scottish passengersDefendants were Piper Aircraft Co. (aircraft mfr) and Hartzell Propeller Inc. (propeller mfr)

Piper Aircraft Co. v. ReynoWas there Personal Jurisdiction over P and H in CA?Did the Superior Court of California have subject matter jurisdiction over the case? Why was there federal subject matter jurisdiction?

Piper Aircraft Co. v. ReynoThe federal district court transferred the case to the federal district court for the Middle District of PA. Was this transfer under 1404 or 1406?Would the CD of CA have been a proper venue under 1391?

Middle District of PA

Why does it have pj over the defendants?Why is it a proper venue under section 1391?(both are required under 1404 unless there is waiver by the D)

Choice of Law

After the case was transferred, why would the MD of CA have to apply different choice of law rules to the two defendants?

Choice of Law

After the case was transferred, why would the MD of CA have to apply different choice of law rules to the two defendants?Result: choice of law rules of CA apply to claim against P (PA law); choice of law rules of PA apply to claim against H (Scots law)

Scottish Legal System

Faculty of Advocates (460)Advocates Library in EdinburghDevil MastersStablesSolicitors

Scottish Legal System

See also Kevin F. Crombie’s useful site: http://www.scottishlaw.org.uk/

PIPER Test

In applying the doctrine of forum non conveniens to a foreign plaintiff, Supreme Court essentially follows two steps it had articulated in Gilbert. 1. Requires a suitable forum in another country2. Considers 4 factors or interests to determine which forum would best serve private and public interestsUnfavorable choice of law alone should not bar dismissal

SIGNIFICANCE OF PIPER v. REYNO

This case extends doctrine of forum non conveniens for use in an international context by adopting a lower threshold and by decreasing its deference to foreign plaintiff’s choice of forum (takes nationality into consideration)The foundation for any modern forum non conveniens analysis in an international context. Decision has prompted continuing criticism

Attractions of U.S. Legal System For Foreign Plaintiffs

Encouragement by U.S. plaintiffs’ bar for litigants to bring suit in U.S.contingency fee arrangementsextensive pre-trial discoveryadvantageous substantive lawavailability of trial by jurytendency for large jury awards

Choice of Law and Erie Railroad v. Tompkins

In federal question cases which substantive law applies?In diversity cases which substantive law applies?Fears of forum shopping

2 Choice of Law Problems

1. VERTICAL PROBLEM - choice between federal and state law2. HORIZONTAL PROBLEM - choice of which state law, if state law applies. This is a subject for a subsequent course on conflicts

Erie RR v. Tompkins

Harry Tompkins (PA) is injured by he is struck by a train while walking on tracks owned by Erie RR (NY)Where could Harry bring suit?Where did he bring suit?

Different State Laws

Describe the applicable law in PA. Was it favorable to Tompkins?Why, according to Tompkins’ lawyer did PA law not apply? Was it because NY law applied? Or for some other reason?

Federal Common Law

Tompkins’ counsel argued that federal common law applied Erie RR argued that the Rules of Decision Act (section 34 of the Federal Judiciary Act of 1978) required that PA law applied. Tompkin’s argument was based on the case of Swift v. Tyson

Swift v. Tyson

What did this case hold?

Swift v. Tyson

What did this case hold? That Rules of Decision Act was limited to local state laws - so federal courts were free to apply federal common law in diversity cases, which permitted federal courts to exercise an independent judgment on what the common law of the State was or should be NOT to apply the unwritten law of the State as declared by its highest court.

Swift: Increasingly Controversial

Why did Swift become increasingly controversial?What are the advantages of Swift?

Brandeis and Swift

How does Brandeis rule on Swift’s interpretation of the Rules of Decision Act?

Swift is Overruled

“Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law.”

Brandeis’ Critique of Swift

Uniformity had not resulted from SwiftCourts were having trouble drawing a clear line between local and general lawSwift led to forum shoppingSwift harmed federalism by taking away states’ legitimate authority to manage their own affairs

Erie: A Very Important Decision

Case “goes to the heart of the relations between the federal government and the states and returns to the states a power that had for nearly a century been exercised by the federal government”Many interesting questions resulting from Erie are still being worked out today by the courts.

1938: An Important Year for Civil Procedure

Why?