Friday audio--Section A I, Section A II; Section B I, Section B II. Essay # 6 due at the beginning of class Wednesday. Essays ## 7 and 8 will post at noon Monday; due outside my office at the regular class time on Monday, April 22.
Please share any photos of Erie flowchart--either send them to me or in any chat group.
We will spend the final two class days working through a series of Erie puzzles. With the analytical framework presented in class Friday (derived from §§ 1652 and 2072, Erie, and Hanna and as elaborated upon in the Glannon reading), work through these cases.
Each
case involves a state law claim in federal court on diversity
jurisdiction (the necessary predicate to ever having to do an RDA/REA/Erie/Hanna analysis). Each case introduces a state-law provision; the question is whether the federal court must apply that provision.
In prepping, consider how each issue arises procedurally--what parties do to trigger consideration of choice of law and what law will apply. Unless indicated otherwise, it is on you to figure out what federal laws or FRCP provisions are in play based on your knowledge of the rules (hint: Some discuss rules we have learned, others require you to identify and interpret new rules in the FRCP--you are familiar enough with the rules as a whole). You must consider (even if speculating) the underlying purpose of both the federal law (whether FRCP, statute, or judge-made rule) and the underlying purpose of the competing state law--what do the various rules hope to achieve. To the extent you see two possible answers to a problem (including competing paths through the analysis or competing conclusions), be ready to argue both.
Be ready to walk through the analysis beyond the broad outline from the board--use the precise language from the rules, statutes, and cases.
As you go into this, I offer this advice: This is complex stuff with a lot of moving pieces. If you put in the time and work through the problems, you will get this. And you will be only person in the courtroom who does.
1) A v. X (E.D. Wis.)
Wisconsin
§ 804.01(2) provides "except as otherwise stipulated or ordered by the
court, a party shall,
without awaiting a discovery request, provide to the other parties any
agreement under which any personhas a right to receive
compensation that is contingent on and sourced from any proceeds of the
civil action, by settlement, judgment, or otherwise." It was enacted as
part of a package of civil-justice reform measures, designed to make
tort and products-liability litigation cheaper and more expeditious and
to reduce large judgments against businesses operating in the state.
A
sues X in the Eastern District of Wisconsin; A's lawsuit is funded by
third-party investors (who finance the litigation in exchange for a % of
any judgment). A does not disclose this information during initial
disclosures in discovery.
FYI, some information on third-party litigation financing.
2) A v. X (S.D.N.Y.):
State
law requires that dispositive trial-court motions be spiral-bound and
include a cover page on purple card-stock paper. Federal law and
practice does not speak to such requirements on motions. X files a
12(b)(6) motion that A believes does not comport with state law.
3) A v. X (E.D. Pa.):
Pennsylvania
law requires that any medical-malpractice verdict be rendered by a
unanimous jury of 12. The Eastern District of Pennsylvania uses
6-person juries in civil cases, as a matter of practice. See FRCP 48.
A sues X for medical malpractice in the Eastern District of Pennsylvania. Trial is about to begin. How many jurors must be seated?
4) A v. X (S.D. Fla.):
Fla. § 768.295 prevents "Strategic Lawsuits Against Public Participation"--meritless suits (usually for defamation) intended to deter people from participating in public debate, petition, and assembly. The statute prohibits any claim that is "without merit and filed primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue, as protected by the First Amendment to the United States Constitution." The statute's purpose is to "protect the right in Florida" for the people to exercise freedoms under the First Amendment.
A
defamation defendant facing what she believes to be a SLAPP suit, as
defined, can file a Special and Expedited Motion to Dismiss. In the
motion, the defendant relies on the complaint and supporting affidavits
and asks the court to find the lawsuit violated the statute--without
merit and filed primarily to stop the exercise of constitutionally
protected expressive activity--and to dismiss. The plaintiff must use
the allegations in the complaint and supporting affidavits to show the
claim has merit and is not filed for that improper purpose. In resolving
the motion, the court acts as factfinder based on the pleading
allegations and supporting affidavits.
A sues X for defamation in the Southern District of Florida. X files a special motion to dismiss under § 768.295.
5) A v. X (S.D. Fla.):
Same
case and law as # 4. X moves to dismiss the complaint under FRCP
12(b)(6). The court grants the motion, finding that the allegations fail
to sufficiently plead actual malice as required by the First Amendment
and New York Times v. Sullivan.
X
moves to recover attorney's fees under § 768.295(b)(4), which provides
that a court "shall award the prevailing party reasonable attorney fees
and costs incurred in connection with a claim that an action was filed
in violation of" § 768.295. Federal courts follow the common law
"American Rule," under which each party is responsible for its own
attorney's fees, unless a federal statute provides otherwise.
Can X recover attorney's fees?
6) X v. A (S.D. Fla.):
Florida amends § 768.295 to add a provision that any person who has been subject to a SLAPP suit, as defined, may bring a claim, counterclaim, crossclaim, or other claim for relief to recover damages, including costs and attorney's fees, from any person who commences a suit that violated the statute.
After
winning the suit described in ## 4 and 5, X brings suit under the new
provision in the Southern District of Florida. Can this action proceed
in federal court, especially given your answer to # 4?
7) A v. X (S.D. Fla.):
Florida law imposes a two-year limitations period on negligence claims. A sues X for negligence three years after an automobile accident.
7a) Federal law is silent as to a limitations on such claims.
7b) Cong enacts a statute providing "Unless otherwise provided by federal law, all civil actions in the United States District Courts shall be filed within four years of the events giving rise to the claim."
7c) The Supreme Court enacts FRCP 4.5, which provides "Unless otherwise provided by federal law, all civil actions in United States District Courts shall be filed within four years of the events giving rise to the claim."
8) PAE Govt Services v. MPRI: (p.427):
Recall PAE, dealing with a state-law breach of contract claim in federal court. State law provides that an agreement to agree is not enforceable. Explain why the federal court must follow that rule.
9) Not a puzzle but a question: Is relation back under FRCP 15(c)(1)(B) or (C) valid on a state-law claim?
