Thursday, April 17, 2014


How the court conducts the balancing test to determine whether to transfer a case to another venue.

For Tuesday-Section C

Thursday audio--Part I, Part II.

We will continue with with the Erie Puzzles. Again, now that we now all the elements and pieces of the analytical framework, go through the last four puzzles thinking about all the elements, including the underlying policies of the rules at issue, and how that resolves these questions.

In particular, we will talk about statutes of limitations, so think about why they exist, what purposes they serve, and how they should be characterized. Then, consider the following additional Puzzle:

A v. X on a personal injury claim, where the state statute of limitations is two years. Now imagine the following two cases and figure out what rule will apply:
   a) SCOTUS has enacted FRCP 4.1, providing "The statute of limitations for all actions in the courts of the United States shall be four years."
   b) Congress has enacted § 1111, providing "The statute of limitations for all actions in the courts of the United States shall be four years."

Finality and Changing Law

A question asked after class: What happens if the federal court makes an Erie guess in Case I that the law is X and the plaintiff loses, then the state Supreme Court comes along in Case II and says the law is Y (and the plaintiff in Case I would have won).

It depends on where Case I stands. If it has become a final judgment (the district court has decided and all appeals have been exhausted), then the change in law changes nothing. While this may seem unfair to the losing party, we have a finality requirement so that at some point litigation and disputes come to an end. The alternative is that every time law changes, every past judgment becomes subject to reopening and reconsideration. That is unfair to the winning party and systemically unworkable--no party could move on if the fear is that the judgment always can be reopened and the system could not put cases to rest. Note, by the way, that this is not limited only to Erie-guess cases. Law always can change subsequent to a particular case--maybe SCOTUS changes the meaning of federal law; maybe Congress enacts a statute that changes the law. At some point, though, past cases must be deemed done.

Erie Day Video!

Hello everyone! This is a cool video on the Erie case and probably a good way to help you remember it. Enjoy!

http://www.youtube.com/watch?v=WkSzGrsUEX4


"If only they had told us as 1L's what appellate oral arguments are really like"

For Friday-Section A

We continue with Hanna. How do we judge the validity of an FRCP? What is the analysis under the two parts of the REA? And what Hanna say we should do with the RDA analysis when there is no federal statute in play? Also, what does "procedure" mean and where does that come into play in the analysis?

We then turn to Applications. Hanna establishes a framework. Rather than reading more cases, the best approach is to work all different problems through each aspect of that framework.

So, prepare and be ready to analyze each under the Erie/Hanna framework to figure out what rule the federal court will apply. For each, think not only about what rule applies, but also the process by which the issues are raised and presented to the court. Where relevant, try to imagine the underlying policies that the state legislature is trying to serve with the relevant state laws.

1) A v. X,  alleging a violation of the Sherman Antitrust Act. X moves to dismiss, arguing that state law does not prohibit contracts in restraint of trade and this conduct is thus lawful under state law.

2) A v. X, alleging breach of contract. The contract is only an "agreement to agree," which the state supreme court has held is not enforceable.

3) A v. X for breach of contract; X answers and the case proceeds to discovery. Ten months after the complaint was filed (and several months into discovery), the defendant finds evidence to support a counterclaim for fraud; it files an Amended Answer with the court, adding the counterclaim. Under State Rule of Civil Procedure 15, a party "may amend its pleading at any time prior to the beginning of trial." Is the amended pleading properly filed?

4) A v. X for medical malpractice in the Eastern District of Pennsylvania; the case proceeds to trial and the court must empanel a jury. See FRCP 48. The federal judge's practice, as with other judges in this district, is to use 6 jurors in a civil action. Under Pennsylvania law, medical malpractice cases must be decided by 12-member juries. How many jurors must the court seat?

5) A v. X for legal malpractice. Under state law, in all civil actions for professional malpractice (medical, legal, therapist, etc.), the plaintiff must file a Certificate of Merit ("COM") within 15 days of filing a complaint; the COM is from an expert in the area, certifying that, in her professional expert opinion, there is a reasonable basis to conclude that the defendant "substantially departed from acceptable professional standards." Failure to file the COM is grounds for dismissal of the action. A does not file a COM.

6) A v. X for defamation in California. California has enacted a statute designed to eliminate SLAPP (Strategic Lawsuits Against Public Participation) suits (suits designed to keep people from participating in public debate and criticizing people on matters of public concern). Under the statute, a defendant who believes the action against him is a SLAPP suit can file a Special Motion to Strike; the motion must be granted and the claim stricken "unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Can the defendant file a Motion to Strike in this case?

7) A v. X in federal court, alleging violations of the Fourteenth Amendment and state tort law; the action is filed the day prior to expiration of the two-year statute of limitations. The district court grants summary judgment on the federal constitutional claim and declines supplemental jurisdiction over the state claims. Two weeks after that order, A sues X in state court, just on the state tort claims. X moves to dismiss the claims as untimely; should the motion be granted? See § 1367(d).

8) A v. X in federal court on negligence claim; A files the day prior to expiration of the two-year statute of limitations and serves the complaint 91 days later (90 days after the limitations period ran). Under state law, the limitations period tolls (stops running) at the time of filing if service is effected within 60 days; otherwise, the limitations period tolls only on service. Is A's action timely? See FRCP 3.

Wednesday, April 16, 2014

Jurisdiction!

Since you now understand it all


For Thursday-Section C

Wednesday audio-Part I, Part II.

We continue with Erie, with Procedural Rules (just a few pages in Principles) and Modern Approach, which focuses on Hanna v. Plumer. How does Hanna change Erie and what does the framework look like, putting § 1652, Erie, and Hanna together? Be sure to look closely at § 2072 and refresh yourself on §§ 2072-2074 and the process for making the Federal Rules under the Rules Enabling Act.

We then turn to Applications. Prepare and be ready to analyze each under the Erie/Hanna framework to figure out what rule the federal court will apply. For each, think not only about what rule applies, but also the process by which the issues are raised and presented to the court. Where relevant, try to imagine the underlying policies that the state legislature is trying to serve with the relevant state laws.

1) A v. X,  alleging a violation of the Sherman Antitrust Act. X moves to dismiss, arguing that state law does not prohibit contracts in restraint of trade and this conduct is thus lawful under state law.

2) A v. X, alleging breach of contract. The contract is only an "agreement to agree," which the state supreme court has held is not enforceable.

3) A v. X for breach of contract; X answers and the case proceeds to discovery. Ten months after the complaint was filed (and several months into discovery), the defendant finds evidence to support a counterclaim for fraud; it files an Amended Answer with the court, adding the counterclaim. Under State Rule of Civil Procedure 15, a party "may amend its pleading at any time prior to the beginning of trial." Is the amended pleading properly filed?

4) A v. X for medical malpractice in the Eastern District of Pennsylvania; the case proceeds to trial and the court must empanel a jury. FRCP 48 provides that a "jury must begin with at least 6 and no more than 12 members." The judge's practice, as with other judges in this district, is to use 6 jurors in a civil action. Under Pennsylvania, medical malpractice cases must be decided by 12-member juries. How many jurors must the court seat?

5) A v. X for legal malpractice. Under state law, in all civil actions for professional malpractice (medical, legal, therapist, etc.), the plaintiff must file a Certificate of Merit ("COM") within 15 days of filing a complaint; the COM is from an expert in the area, certifying that, in her professional expert opinion, there is a reasonable basis to conclude that the defendant "substantially departed from acceptable professional standards." Failure to file the COM is grounds for dismissal of the action. A does not file a COM.

6) A v. X for defamation in California. California has enacted a statute designed to eliminate SLAPP (Strategic Lawsuits Against Public Participation) suits (suits designed to keep people from participating in public debate and criticizing people on matters of public concern). Under the statute, a defendant who believes the action against him is a SLAPP suit can file a Special Motion to Strike; the motion must be granted and the claim stricken "unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Can the defendant file a Motion to Strike in this case?

7) A v. X in federal court, alleging violations of the Fourteenth Amendment and state tort law; the action is filed the day prior to expiration of the two-year statute of limitations. The district court grants summary judgment on the federal constitutional claim and declines supplemental jurisdiction over the state claims. Two weeks after that order, A sues X in state court, just on the state tort claims. X moves to dismiss the claims as untimely; should the motion be granted? See § 1367(d).

8) A v. X in federal court on negligence claim; A files the day prior to expiration of the two-year statute of limitations and serves the complaint 91 days later (90 days after the limitations period ran). Under state law, the limitations period tolls (stops running) at the time of filing if service is effected within 60 days; otherwise, the limitations period tolls only on service. Is A's action timely? See FRCP 3.

Status of FRCP amendments

A quick update on the proposed amendments to the FRCP.

The Civil Rules Advisory Committee (the sub-committee responsible for the FRCP) revised the language to FRCP 26(b)(1)--it retains proportionality as part of the definition of discoverability, although the factors and language has been modified. The Committee also removed the changes to the presumptive limits on depositions and interrogatories. And the Committee is still working on changes to FRCP 37(e), regarding sanctions for failure to preserve ESI. I appears the Committee also has (or will) approve repeal FRCP 84 and the forms.

The next step after the Advisory Committee is the Standing Committee (the one mentioned in § 2073). The earliest these amendments would take effect is December 1, 2015.

Tuesday, April 15, 2014

For Thursday-Section A

Tuesday audio.

We will begin with the walk-through of personal jurisdiction and venue and how you would analyze each if you were writing an essay answer. Walk through the steps as if you are writing an essay, pointing to particular rules and legal standards. Think about all the ways that the defendants might have purposefully availed and write down some notes if you have to. Note that the outline we have put together it just that--an outline. Any essay or discussion must fill in the details about law and fact.

We then begin discussing Erie; do Introduction, which focuses on § 1652 and Erie RR v. Tompkins, Problem of Procedural Rules, and Modern Approach, which focuses on Hanna v. Plumer. For Friday and Tuesday, we then will work through a series of Puzzles, which I will post on Thursday.

Personal Jurisdiction - whiteboard outline


Essay VIII


Visions of Amerca LLC v. Boston Symphony Orchestra, Inc.

Defendant BSO moves to transfer this action to the United States District Court for the District of Massachusetts, pursuant to under 28 U.S.C. § 1404(a). As counsel for the plaintiff, oppose the motion to transfer.

For purposes of this essay, Massachusetts has a catch-all Long Arm statute that states “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”

For purposes of this essay, accept the facts in the complaint as true. Identify any unknown or additional facts that might affect your analysis.

Essay VII


Visions of America LLC v. Boston Symphony Orchestra, Inc.

You are counsel for the defendant in VOA v. BSO. Argue that the action should be dismissed for lack of personal jurisdiction.

For purposes of this essay, California’s Long-Arm Statute, § 410.10, provides “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”

For purposes of this essay, accept the facts in the complaint as true. Identify any unknown or additional facts that might affect your analysis and arguments.

Scheduling and Grading Matters (Both Sections)

We will finish Personal Jurisdiction and Venue on Tuesday. So I will post Essays VII and VIII on Tuesday afternoon, to be turned in on Thursday, April 24; since classes will be over, you can turn it in either in person or via email.

Erie, our last topic and the subject of Essay IX, will take us to the end of the semester. So I will distribute that question on Tuesday, April 22 (the last day of class), to be turned in when you come for the final exam on Monday, May 5 (because it overlaps with exam-study, you'll have a few extra days to write.

Also, this week I will post to the blog some questions from last year's final exam, to give you a sense of that format and the types of questions being asked.

Monday, April 14, 2014

Some General, Some Personal

I thought this article was interesting because it discussed personal jurisdiction and general jurisdiction relating to patents. It includes some of the language we went over in class such as "activities directed at" with relation to the defendant's activities. It also discusses what contact with the forum is. Enjoy!

Jurisdiction Article here

Sunday, April 13, 2014

A Lesson in Litigation and Negotiation

This Sports Illustrated story tells the tale of the owners of the Spirits of St. Louis, a team in the old American Basketball Association. The story shows the value of good lawyering and how disputes are resolved.

In 1976, the National Basketball Association absorbed four of the seven ABA teams. Of the the remaining three teams, one folded and one took $3 million and went away; the last team was the Spirits, owned by brothers Ozzie and Daniel Silna. They took less money-about $ 2.2 million. Their lawyer instead negotiated a deal for them to receive 1/7 of the annual broadcast revenues received by the four absorbed teams, to be paid in perpetuity ("shall continue for so long as the NBA or its successor assigns continues in existence"). At the time, this did not seem like a big deal. The only conception of "broadcast" in 1976 was three networks (ABC, NBC, and ABC--Fox did not exist), and the networks did not bothering showing the NBA Finals live; there was no ESPN, no cable, and no internet, and no one outside the United States particularly cared about professional basketball. But the Silnas' lawyer ensured that broadcast was defined in the contract to reach sources of media that did not exist and had not even been invented at the time of the contract. Combined with the in perpetuity clause, that made this a ridiculously smart deal when, since the early1980s, the NBA, international interest in basketball, and sports media all have exploded. From 1980 until 2013, the Silnas received more than $ 300 million from the deal. The keys to the deal were making it last forever and broadly defining "broadcast" to reach sources of media revenue that had not even been invented at the time of the contract.

In 2009, the Silnas filed suit in federal court to enforce the contract, arguing they were entitled under it to receive a greater portion of international and online revenues (a common breach of contract action, requiring the court to determine the scope and meaning of the contract). That action settled recently (as most do, and at the urging of the court), with a confidential agreement (as most are). Reported details are that the Silnas received more than $ 500 million, plus a portion of revenue when the NBA renegotiates its broadcast deal in two years. In all, the Silnas reportedly will receive more than $ 1 billion from this deal--for a team they bought in 1974 for $ 1 million.

Saturday, April 12, 2014

For Wednesday-Section C

Saturday audio-Part I, Part II. Nice job today and thanks for hanging in on a Saturday. And my apologies again for not posting the assignment for today; I honestly thought I had (turns out I drafted it, but never posted it).

We will continue with Venue. Read all the assigned statutes, including § 1.061 of the Florida Rules of Civil Procedure (the link to the Florida Rules is on the blog). Understand the differences and connections among improper venue, change of venue, and Forum Non Conveniens. How does Atlantic Marine explain that connection? How do forum-selection clauses fit into the mix?

We then will circle back to this complaint as a review of both personal jurisdiction and venue. Work through the entire P/J flowchart and think about how you would answer this as an essay. Consider all possible means of establishing jurisdiction. We then will walk through this in class (as we did with Sullivan when we discussed S/M/J).

We then will turn to the Erie Doctrine. Prepare the first three sections--Introduction and History, Problem of Procedural Rules, and we will begin Modern Approach. Start with the text of the Rules of Decision Act, § 1652. What is the issue in Erie? How was it raised and presented to the court procedurally? How do choice-of-law issues get presented to the court? Then note how Hanna alters the analysis from Erie.

On Thursday and the following Tuesday (final class), we will finish Modern Approach, then spend the rest of the time on Applications. I will post the hypos to the blog later.

Caption



JUSTICE SCALIA, dissenting.

A grievous application of "sudden death" has been applied in eliminating me from the ping-pong tournament. 

Section C - Saturday Class Notes





Caption


The Honorable Justice Ginsberg putting her twenty-one year winning streak on the line to remain SCOTUS Ping Pong Champion.

Friday, April 11, 2014

Caption


The first rule of SCOTUS is: you do not talk about the ping pong matches. The second rule of SCOTUS is: you DO NOT talk about the ping pong matches.

Know your personal jurisdiction case characters

• Here is the National Enquirer story about actress Shirley Jones at issue in Calder.

• Here is an interview with Gina Fiore (the plaintiff in Walden) discussing the incident at the airport and her career as a professional poker player.

• Finally, here are pictures of the type of VW minivan (1970s model) involved in the crash in World Wide. Unfortunately, you can see why the family was so badly injured in the crash.


Section A: Whiteboard Screenshot


In case you missed what was on the board in class today, here it is. Click on the picture to see the entire board.

For Tuesday-Section A

Friday audio-Part I, Part II.

We will walk through the Personal Jurisdiction framework as a review. Be ready to discuss all bases for establishing personal jurisdiction over all the defendants and claims in this case, working through the multi-step framework and how you would address this as an essay question.

We then will turn to Venue, Change of Venue, and Forum Non Conveniens, which present the final forum selection issues. Note all the statutory provisions, as well as two provisions of Florida law to prepare. Also, note how Improper Venue and Change of Venue connect to one another.

Finally, I hope to get to the beginning of the discussion of the Erie Doctrine. Look at § 1652 (the Rules of Decision Act) and read Erie RR v. Tompkins.



Section C: Make-up in RDB 2005

That is all.