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Civil Procedure II
University of Kentucky School of Law
Bauries, Scott R.


Civil Procedure II

Spring 2016

Choice of Law


Three Current Approaches to both the Rules of Decision Act problem and the Rules Enabling Act problem

RDA – 28 USC 1652

The RDA 28 USC §1652, based upon the Supremacy Cl. Is the main statute stating when the federal court should apply federal law, and when it should apply state law.

Federal Law applied

According to the clear language of the RDA, the federal CN, treaties, and constitutional statutes enacted by Congress always take precedence, where relevant, over all state provisions. (This rule applies not only to federal proceedings, but also to state court proceedings).

State Statutes:

The RDA also clearly provides that in the absence of a federal constitutional or statutory provision on point, the federal courts must follow state constitutions and statutes.

Dispute about common law

The interesting question and one which the RDA is silent, is what the federal court should do where there is no controlling constitutional or statutory provision, federal OR state. What law should federal courts follow where the issue is at common or judge made law.

Shady Grove – stevens argues there should be a stricter test but the supreme court has never held frcp invalid under rules enabling act

Hanna prong of analysis

Ask is there a federal rule on point that directly conflicts with state law

Federal provision trumps state law as long as it is valid

Erie prong of analysis

Comes up if there is no federal provision on point, so a true erie questions

The federal judge must apply state law on matters of substantive issue, but if not substantive then does not have to follow state law

How do we know if something is substantive for this purpose?

SC very unclear
Three famous phrases (advice, apply all three tests and come to a reasonable conclusion)

Outcome determinative (Guarantee Trust v. York)

Erie problem not a hanna problem
Federal judge must apply state law on SOL (substantive for erie purposes) in a diversity case
Why substantive? Because outcome determinative
Apply – if we use the state law the case is dismissed right now, if ignore state law case proceeds
Different result and should not have different outcomes between federal and state
Thus outcome determinative thus must apply state law
Problem is that everything at some point is outcome determinative
Court has not expressly overturned

Balance of Interest (Bird v. Blue Ridge)

Today, the federal court balances the state and federal polices against one another. Where the state interest in having its policy followed is fairly weak and the federal strong, the court is likely to hold that the federal procedural policy should be followed.
Judge/Jury Allocation: If it is a question for if the judge or jury should decide an issue, the Federal policies are to be followed. [Byrd] Unanimity for jury trials: Federal policy requiring a unanimous jury verdict will be applied in diversity suits, at the expense of the state policy allowing a verdict based on a less than unanimous majority. The state’s policy has little weight here since the case is not taking place in the state system; the federal policy is strong, supported by tradition; the choice is not heavily outcome determinative.
Statute of limitations: A state SOL must be followed in a Diversity case. State’s interest is heavily outcome-determinative, and deeply bound up with the rights of the parties. The federal interes is relatively weak, and there is little to be gained from district to district. [York].
Diversity case
Erie problem
Court has to look at allocation of authority between jury and judge
If a provision is not clearly substantive, the federal court should apply state law, unless the federal court system has some interest in doing it differently

Twin aims of erie (Hanna v. Plumer)

Avoid forum shopping and avoid the inequitable administration of law
Apply – at the outset of the case ask if the federal judge ignores this state law will it cause parties to flock to federal cour

lausibility the judge uses her own experience and common sense

very subjective

Demand for judgments (8a)

Money damages
Injunctive or other relief
A declaratory judgment as to the parties rights and liabilities
Even if wrong relief requested the court must grant the relief entitle (54c)
9B and 9g are heightened pleading requirements

must give particulars if alleging

fraud (probably most tested)
special damages


Conley v. Gibson – a complaint shall not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief
Swierkiewicz v. Sorema – no heightened pleading requirement, short statement of facts

Plausibilitiy Pleading

Bell Atlantic v. Twombly – a complaint does not survive a motion to dismiss unless the factual allegations stated in the complaint push past possibility into plausibilty

Look through complaint and figure out which allegations are couched a allegations but are actually legal conclusions
Remove all legal conclusions and base plausible claim question on remainder
Determine via judicial experience and common sense or an obvious alternative explanation

Twiqbal Two Step

Two steps

Identify legal conclusion and deprive them of presumption of correctness
Examine remaining allegations for whether taken together they make out a plausible caim for relief

Need a plausible inference of liability
Federal courts should draw on judicial experience and common sense in deciding whether the claim satisfies the first test
Any pure legal conclusions should be ignored