Civil Procedure I Outline

Civil Procedure – Spring 2004 (Prof. Martin)

Ascertaining Law
Diversity Cases
· Apply state law as the state supreme court would decide it today
o do not need to look at “current” law as it exists (Mason v. Emery Wheel Works 1957)
o look to state supreme court decisions (holdings, dicta, // cases); state lower courts; federal courts in that state; modern trend; law profs., restatements, etc. (McKenna v. Ortho Pharm. USSC 1980)
o may use certification process, though not commonly done
State Cause of Action / Federal Involvement
· federal law may apply even if normally a state cause of action; if federal law / govt. is necessary ingredient, then apply [create] fed. common law
o Clearfield Trust (USSC 1943) federal interest high in determining how long to report a fraudulent US govt. check
o Cannot be a “speculative interest;” is lit. btwn. 2 private parties and does not affect rights or duties of US à state law applies (Parnell)
§ Fed Law governs the interpretations of the nature & rights of obligations of US
o US v. Kimbell Foods (USSC 1979); Miree v. Dekalb Cty. (USSC 1977) declined to apply fed. CL when there was a necessary ingredient but state law was not a hassle to apply
§ affected rights of private parties only à state law only
o may be bad idea if it disrupts commercial relationships
· Examples
o Kohr v. Allegheny Air (7th Cir. 1974) à FCL à FAA made error, feds party to case, need uniform contribution rules
o Smith v. Cessna Air (IL 1977) private plane crash ≠ FCL
o In re Agent Orangeà FCL à uniform, protective liability needed to maintain govt. interest and military advtg
Interstitial Federal Common Law
· gap filling in federal statutes
· federal common law limited to situations where there is a significant conflict between state law and federal policy or interest (Wallis v. Pan American) 1966
o if uniformity is important (esp. prevent forum shopping)
o may adopt existing state CL as Fed. CL, or borrow analogous Fed. law (and if state CL, they normally take the mode of the state laws)
· normally follow state law since RDA = state law unless Congress says otherwise
o strong presumption in favor of applying state law
o Congress knows we do it under precedent, so presume their silence = approval
o Lampf (USSC 1991): gap filled SOL by using mode of state SOL laws
o Textile Workers Union v. Lincoln Mills (USSC 1957): FCL to find if fed act applied; may use state law, but it becomes FCL when done
o O’Melveny v. FDIC; Atherton v. FDIC did not apply FCL; FDIC was not acting on behalf of govt.
Federal Law in State Courts (Reverse Erie)
· Applies to:
o Federal causes of action
o claim predicated on federal COA (Merrell Dow)
o Federal Defenses
· States must follow federal law (Art IV § 2) even if they do not agree (Testa v. Katt) (Dice v. Akron Canton & Youngstown RR 1952)
o Uniformity of application of law is needed (fill w/ fed common law)
o Establish a federal common law rule
o States are subordinate to fed substantive and procedural laws, esp. those needed to effectuate federal law (Brown v. Western RR of AL 1949) (Fed Energy Ref Comm v. Miss. 1982)
· States do not need to apply other states’ laws when conflict of public policy
· Fed. cts. cannot certify state questions since Art. III restricts to cases & controversies
Modern Pleading (Ch. 8)
Developed from Common law
· Eng. courts were purely oral and had strict pleading requirements; mistake = lost case
· FRCP designed to loosen the strict requirements
· FRCP did away with distinction between law & equity (FRCP 1, 2)

FRCP 7: Pleadings Allowed / Form of Motions

(a) Complaint & Answer; Reply to a Counter Claim; Answer