Thursday, April 23, 2015

Congratulations--You understand Civ Pro

Remember this short video from the beginning of the semester? Remember that I said you would  understand everything in it by the end of the semester? Go back and check it out.

Also, Civ Pro is a popular part of the Law Revue shows at other schools, as you can see in the two videos after the jump. And again, four months ago you would not have understood any of this. Something to lighten up your study time.

Sample Answer: Essay # 7

The Sample Answer for Essay # 7 is after the jump. I expect to have the papers graded and available before you begin studying for this exam in earnest.

All Sections--Final Audio and Final Comments

Wednesday Section C audio--Part I, Part II. The final 20 minutes-or-so includes an extended discussion of the final Puzzle dealing with the scope of FRCP 3; it may be worth a listen to hear more about how that analysis would go.

I will see everyone on Friday, May 1 at 10 in RDB 2006 and/or Saturday, May 2 at 11 in RDB 2006. Creative projects can be delivered or emailed to me--I must say I have been very impressed so far.

You can email study questions to me or post them to the blog. Also, feel free to stop by my office at any time.

Good luck with exams and (Section A) the Law Review Competition.


Tuesday, April 21, 2015

More on Gasperini

Janeisy mentions Gasperini: This actually is a great case for seeing all different parts of the Erie analysis at work, how they all fit together, and where different conclusions may take you. The issue in the case was the appropriate standard on a motion for a new trial and the appropriate standard of review on appeal of the decision on that motion. The divisions on the Court show all the different ways this analysis can go at different points.

• Justice Ginsburg (writing the majority) and Justice Scalia (writing a dissent) split at the very first question--whether an Act of Congress controlled. Justice Scalia found that FRCP 59(a) did control, then ran an REA analysis and found the rule valid (of course!). Justice Ginsburg found that Rule 59 did not provide the applicable standard; that standard instead was a creation of federal procedural common law. Ginsburg's analysis reflects what we saw in Puzzle # 7--a narrow construction of an FRCP specifically to avoid a conflict with state law and state policy and a possible abridge, enlarge, or modify problem.

• Having found that no Act of Congress controlling, Ginsburg performed the "unguided Erie analysis." In doing so, she included Byrd balancing on top of the "Twin Aims of Erie" analysis--the first time SCOTUS had cited Byrd since Byrd itself.

• Ginsburg's unguided Erie analysis then produced two different results for the two different issues. She found that the state standard applied on the motion for a new trial in the district court, but the federal standard of review applied on appeal. The difference with the latter, she argued, was the countervailing federal interest in limited appellate review and the unlikelihood that anyone would choose a federal forum (over a state forum) because of the standard of review on appeal (thus not applying the state rule would not encourage forum shopping).

Both opinions are somewhat densely written. But if you are looking for another source to illustrate the framework, it is worth a read.

Gasperini v. Center for Humanities, Inc.


Gasperini was a journalist and photographer for CBS News. In 1990 he let The Center for Humanities borrow, for an educational video, over 300 original slides with pictures of war, political leaders, and everyday life that he took while in Central America. After the Center lost the slides he brought a suit in the United States District Court for the Southern District of New York. The trial court applied New York law and found for Gasperini. The Center appealed claiming that the award for the plaintiff was too excessive.

The case went to the Supreme Court of the United States because there was an issue on which standard of review to apply, whether the one applied by the federal courts or the one that had recently been enacted by the New York state legislature. The court addressed the Erie Doctrine in determining whether the standard was substantive or procedural. The majority held that the federal district court should apply the New York standard of review because the case did not include a distinct choice between federal and state interests but it was an opportunity to serve both interests.  

Gasperini v. Center for Humanities, Inc. 518 U.S. 415 (1996).

Monday, April 20, 2015



For Wednesday-Section C

Monday audio--Part I, Part II.

For each of the following, think about (or write out) how you would work through a full essay answer, following the standards and language in the flow chart we produced on Monday. For each rule, think about how the rule operates and its underlying policies. Your answer should include how the parties would present and argue each issue to the court.

All cases were filed in federal district court.

1) Case discussed here,  featuring state-law claims for conversion (pp. 25-31 of opinion). Florida law requires heightened pleading for conversion claims; the plaintiff's complaint adhered to FRCP 8(a)(2) and Twiqbal. Is the complain sufficient? (Hint: The Eleventh Circuit's analysis, while common, is not actually proper under Hanna.) How should this be analyzed and resolved under the framework we are discussing?2) A v. X (Medical Malpractice). Under state law, a medical malpractice claim must be tried by a jury of 12 people. Practice in this federal district is to use six-person jurors in civil cases. See also FRCP 48. How many jurors must the court seat?
3) A v. X (Medical Malpractice). Under state law, in claims for professional malpractice, plaintiff's complaint must be accompanied by a "Certification of Merit," a sworn statement from an expert in the field certifying that the facts reflect a "fair possibility" that the defendant committed malpractice. A did not file a Certification of Merit; must he?
4) A v. X (Negligence). State law has a two-year statute of limitations. A files his complaint two years and two days from the date of the event. Is the complaint timely?
5) Same as # 5. Congress has enacted 28 U.S.C. § 2500, which establishes a four-year limitations period for all claims filed in federal court. Is the complaint timely?
6) A v. X (Products liability). The plaintiff was injured on April 14, 2013, he his action on April 13, 2015, and he served the defendant on April 17, 2015. Under state law, the statute of limitations does not stop until the defendant has been served the summons and complaint; thus, if the plaintiff files the complaint before the statute of limitations has run but does not serve it until after it has run, the action is untimely. Practice in federal court is that the limitations period stops running when the action is "commenced." (FRCP 3). Is A's action timely filed?

Section A

Audio from final class. Listen to the audio from Section C for the last 15 minutes of Monday and the end of Wednesday to get more on Puzzle # 7 and on Puzzle # 1.

For those of you doing Essay # 8, you will hand it to the proctor when you come for the exam on Monday, May 4.

The Q&A session is on Friday, May 1 at 10 a.m. in RDB 2006. We will spend about 1/2 hour looking at the creative projects, then start Q&A; we will stay for as long as you all have questions.

Please get creative projects (physically or electronically) by sometime on Thursday, April 30.

Stop by my office anytime with any questions. You also can email or post questions to the blog; if you email a question, I will post the question (with the identity of the questioner removed) and answer to the blog.

Burdick v. Superior Court


In California a group of scientists have sued Nerium (skincare company), its CEO and Burdick (a company consultant) for harassing two scientists online. The scientists had published skeptical statements about some of Nerium's products on their website. The defamatory statements were made in Illinois and through Facebook by Burdick directed at the California scientists. Burdick moved to dismiss for lack of personal jurisdiction, as he did not live or work in California, but the trial court denied it. However, in light of Walden v. Fiore, he was heard by the California court of appeals.

Ultimately, the California Court of Appeals decided that posting statements in Illinois about an individual in California did not create "minimum contacts" needed for personal jurisdiction. This article provided a perspective on how courts are treating the internet and what exactly is "expressly aiming" (effects test) conduct in the internet age. Was it enough to post statements online with the knowledge that the person you directed them at resides in a certain forum? In this case it was not enough. However, the California court of appeals remanded to have more discovery and find out more information about Burdick's conduct that could tie him to California and establish "minimum contacts."

http://www.law360.com/articles/638587/personal-jurisdiction-and-defamation-in-the-internet-age

Sunday, April 19, 2015

Sample Exam Questions

Here (there are 9 of them); they were taken from a previous exam. The exam instructions were posted here.

Cybersell, Inc. v. Cybersell, Inc.


Going back a few classes to personal jurisdiction:
In Cybersell, Inc. v. Cybersell, Inc. a Florida corporation used the same internet web page name as an Arizona corporation. The Arizona corporation sued the Florida corporation for trademark infringement and the Florida corporation moved to have the case dismissed for lack of personal jurisdiction. The district court and the appellate court both agreed that there was no personal jurisdiction in Arizona because the Florida coporation had not purposely availed themselves such that they could reasonably expect to be hailed into court in Arizona, even though the trademark was registered in Arizona. 
The Arizona corporation argued that there was personal jurisdiction because the internet is without borders, and a website which advertises a product or service is necessarily intended for use on a worldwide basis but, like we discussed on Friday, the use of the internet to advertised is normally insufficient to establish personal jurisdiction. The Florida corporation did eventually change its name.
If anyone is interested in reading the case this is the citation: Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997)

Saturday, April 18, 2015

For Monday-Section A

Friday audio.

One final point in defining what is procedural for purposes of § 2072(a): Recall that one of the categories of legal rules that Hanna discusses (p. 657) is those that are "rationally capable of classification" as either substantive or procedural; such "arguably procedural" rules are permissible rules of practice and procedure for § 2072(a) purposes. Moreover, in Burlington Northern v. Woods (1987), the Supreme Court said that "Rules which incidentally affect litigants' substantive rights do not violate [§ 2072(b)] if reasonably necessary to maintain the integrity of that system of rules." So this goes a long way towards explaining why no rule ever has been invalidated: A rule is valid under the REA so long as there is a rational argument for calling something procedural (i.e., about the manner and means by which rights are enforced or about the fairness and efficiency of the truth-finding process) and even if it abridges, enlarges, or modifies substantive rights, so long as it only does so a little bit.

In class Monday, we will work through the following hypos that demonstrate each possible point in the Erie/Hanna analysis. For each, think about (or write out) how you would work through a full essay answer, following the standards and language in the flow chart we produced on Friday. For each rule, think about how the rule operates and its underlying policies. Your answer should include how the parties would present and argue each issue to the court.

All cases were filed in federal district court.

1) A v. X (breach of contract). A seeks to enforce an "agreement to agree" which is not enforceable under state law. X moves to dismiss; should the motion be granted?
2) Case discussed in Helen's post, including state-law claims for conversion (pp. 25-29 of opinion). Florida law requires heightened pleading for conversion claims; the plaintiff's complaint adhered to FRCP 8. Is the complain sufficient? (Hint: The Eleventh Circuit's analysis, while common, is not actually proper under Hanna.) How should this be analyzed and resolved under the framework we are discussing?
3) A v. X (Medical Malpractice). Under state law, a medical malpractice claim must be tried by a jury of 12 people. Practice in this federal district is to use six-person jurors in civil cases. See also FRCP 48. How many jurors must the court seat?
4) A v. X (Medical Malpractice). Under state law, in claims for professional malpractice, plaintiff's complaint must be accompanied by a "Certification of Merit," a sworn statement from an expert in the field certifying that the facts reflect a "fair possibility" that the defendant committed malpractice. A did not file a Certification of Merit; must he?
5) A v. X (Negligence). State law has a two-year statute of limitations. A files his complaint two years and two days from the date of the event. Is the complaint timely?
6) Same as # 5. Congress has enacted 28 U.S.C. § 2500, which establishes a four-year limitations period for all claims filed in federal court. Is the complaint timely?
7) A v. X (Products liability). The plaintiff was injured on April 14, 2013, he his action on April 13, 2015, and he served the defendant on April 17, 2015. Under state law, the statute of limitations does not stop until the defendant has been served the summons and complaint; thus, if the plaintiff files the complaint before the statute of limitations has run but does not serve it until after it has run, the action is untimely. Practice in federal court is that the limitations period stops running when the action is "commenced." (FRCP 3). Is A's action timely filed?

Fl v. Federal Pleading Standard

So, a Palm Beach Golf Center sued a dentist for sending an advertising fax to their company. (which no one at the golf center could recall seeing or reading)... not the most exciting case in the world but on page 25 it gets into the Erie doctrine and whether or not the district court should have required a heightened pleading standard for a conversion claim, which is required under Florida law, or whether a "short and plain statement" under 8(a)(2) was sufficient. 

Pg 25-29, the court goes through which standard is appropriate and why. 

http://media.ca11.uscourts.gov/opinions/pub/files/201314013.op2.pdf

Personal Jurisdiction Review

Personal Jurisdiction Review Session.

Friday, April 17, 2015

Today's Boards



Essay #8

The Supreme Court of the United States is reviewing the decision of the United States Court of Appeals for the Fifth Circuit in Clemens v. McNamee, involving personal jurisdiction in a defamation action in federal court in Texas against a New York defendant.

Write the opinion for the Court reviewing the Fifth Circuit, particularly considering how the state of personal jurisdiction analysis has developed since the Fifth Circuit ruled in 2010.


Thursday, April 16, 2015

Does not look like Florida Football players are doing well

http://www.buzzfeed.com/salvadorhernandez/heisman-trophy-winner-sued-by-alleged-rape-victim#.bkNaQQVgR

I wonder if the victim is going to  join more parties to this case, like FSU PD or TPD?