1. CIVIL PROCEDURE CLASS 42 Professor Fischer Columbus School of Law The Catholic University of America Dec 2, 2005

2. ANNOUNCEMENTS Exam review classe: Tuesday Dec. 13 11 a.m. Room Exam is completely open book.

3. EXAM TIPS Read questions carefully and remember to answer the question asked Use IRAC form for each issue in question Answer every question; manage your time carefully Get sufficient sleep the night before the exam.

4. FORUM NON CONVENIENS Compare this doctrine with: 28 U.S.C. § 1404 28 US.C. § 1406

5. 28 U.S.C. § 1404 (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought PIPER - After removal to US District Court for Central District of CA, action is transferred to US District Court for Middle District of PA Cases are usually transferred under this section between federal district courts rather than dismissed for forum non conveniens

6. Improper Venue Provision 28 U.S.C. § 1406(a) permits court to dismiss if venue has improperly been laid “or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought”

7. Piper Aircraft Co. v. Reyno Wrongful death suit originally brought in Superior Court of California by Gaynell Reyno on behalf of 5 Scottish passengers Defendants were Piper Aircraft Co. (aircraft mfr) and Hartzell Propeller Inc. (propeller mfr)

8. Piper Aircraft Co. v. Reyno Was there Personal Jurisdiction over P and H in CA? Did the Superior Court of California have subject matter jurisdiction over the case? Why was there federal subject matter jurisdiction?

9. Piper Aircraft Co. v. Reyno The federal district court transferred the case to the federal district court for the Middle District of PA. Was this transfer under 1404 or 1406? Would the CD of CA have been a proper venue under 1391?

10. Middle District of PA Why does it have pj over the defendants? Why is it a proper venue under section 1391? (both are required under 1404 unless there is waiver by the D)

11. Choice of Law After the case was transferred, why would the MD of CA have to apply different choice of law rules to the two defendants?

12. Choice of Law After the case was transferred, why would the MD of CA have to apply different choice of law rules to the two defendants? Result: choice of law rules of CA apply to claim against P (PA law); choice of law rules of PA apply to claim against H (Scots law)

13. Scottish Legal System Faculty of Advocates (460) Advocates Library in Edinburgh Devil Masters Stables Solicitors

14. Scottish Legal System See also Kevin F. Crombie’s useful site: http://www.scottishlaw.org.uk/ http://www.scottishlaw.org.uk/

15. PIPER Test In applying the doctrine of forum non conveniens to a foreign plaintiff, Supreme Court essentially follows two steps it had articulated in Gilbert. 1. Requires a suitable forum in another country 2. Considers 4 factors or interests to determine which forum would best serve private and public interests Unfavorable choice of law alone should not bar dismissal

16. SIGNIFICANCE OF PIPER v. REYNO This case extends doctrine of forum non conveniens for use in an international context by adopting a lower threshold and by decreasing its deference to foreign plaintiff’s choice of forum (takes nationality into consideration) The foundation for any modern forum non conveniens analysis in an international context. Decision has prompted continuing criticism

17. Attractions of U.S. Legal System For Foreign Plaintiffs Encouragement by U.S. plaintiffs’ bar for litigants to bring suit in U.S. contingency fee arrangements extensive pre-trial discovery advantageous substantive law availability of trial by jury tendency for large jury awards

18. Choice of Law and Erie Railroad v. Tompkins In federal question cases which substantive law applies? In diversity cases which substantive law applies? Fears of forum shopping

19. 2 Choice of Law Problems 1. VERTICAL PROBLEM - choice between federal and state law 2. HORIZONTAL PROBLEM - choice of which state law, if state law applies. This is a subject for a subsequent course on conflicts

20. Erie RR v. Tompkins Harry Tompkins (PA) is injured by he is struck by a train while walking on tracks owned by Erie RR (NY) Where could Harry bring suit? Where did he bring suit?

21. Different State Laws Describe the applicable law in PA. Was it favorable to Tompkins? Why, according to Tompkins’ lawyer did PA law not apply? Was it because NY law applied? Or for some other reason?

22. Federal Common Law Tompkins’ counsel argued that federal common law applied Erie RR argued that the Rules of Decision Act (section 34 of the Federal Judiciary Act of 1978) required that PA law applied. Tompkin’s argument was based on the case of Swift v. Tyson

23. Swift v. Tyson What did this case hold?

24. Swift v. Tyson What did this case hold? That Rules of Decision Act was limited to local state laws - so federal courts were free to apply federal common law in diversity cases, which permitted federal courts to exercise an independent judgment on what the common law of the State was or should be NOT to apply the unwritten law of the State as declared by its highest court.

25. Swift: Increasingly Controversial Why did Swift become increasingly controversial? What are the advantages of Swift?

26. Brandeis and Swift How does Brandeis rule on Swift’s interpretation of the Rules of Decision Act?

27. Swift is Overruled “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law.”

28. Brandeis’ Critique of Swift Uniformity had not resulted from Swift Courts were having trouble drawing a clear line between local and general law Swift led to forum shopping Swift harmed federalism by taking away states’ legitimate authority to manage their own affairs

29. Erie: A Very Important Decision Case “goes to the heart of the relations between the federal government and the states and returns to the states a power that had for nearly a century been exercised by the federal government” Many interesting questions resulting from Erie are still being worked out today by the courts.

30. 1938: An Important Year for Civil Procedure Why?