Federal State Choice of Law and Pleading Flashcards
Erie v. Tompkins Policies
- Avoidance of excess forum shopping
- Discrimination (irrational results based on differences due to diversity)
- Federal interference
Apparent basis of Erie and basic rule
Constitutional; federal courts cannot makeup state law rules of decision. In diversity or other state claim cases, the substantive law is to be determined by the substantive law of the state, not by reference to “general” law. Note the substance-procedure problem, i.e. labels as to what is usually substantive or procedural don’ really apply
Steps to determine if substantive or procedural
- Use controlling rule test. Follow federal rule unless unless it is clearly substantive. This reconciles rules enabling act with rules of decision act. If it is FRCP, it is automatically procedural
- If no controlling federal rule:
a) Outcome determinative test
b) Absolute or definitive outcome determination
c) Federal-State Balancing
d) Basic test: Policies of Erie
Outcome determine test says
if it makes a difference in outcome, its substantive. However, most rules can affect outcome.
Absolute or definitive outcome test
says the rule has to have decisional quality to be substantive and that will definitely change the outcome.
Federal-state balancing test
says that rule if strong state policy controls its substantive, and that if strong federal policy controls, it is procedural
Basic test: Policies of Erie
Will the rule create forum shopping; does it create different results if used in different states; does it have irrational differences in result
Federal judge when comes to state law claims should
be ventriloquist and do what state court judge would do if substantive
Multi-state choice of law
Federal judge when comes to state law claims should be ventriloquist and do what state court judge would do if substantive.
The federal courts use the forum states rules of choice of law to determine what law to apply. Two main types of state choice of law rule are Lex Loci Delicti and most significant relationships
Texas choice of law
most significant relationship
Lex Loci Delicti
law of place of injury
Most significant relationship
state that has most significant relationship to the issue
Difficulty in determining state law
If no decision has been made by the highest court, the federal court infers what the highest court in the state would do by using other decisions of that court and decisions of lower courts.
Federal Notice pleading
A short and concise statement, with rules and forms as guides. Must state a claim, show jurisdiction & claim relief but need specificity; Alternative and inconsistent claims are ok.
Modern liberalized cause of action pleading
Cause of action means you have to make a statement about each element of the claim; requires you to say something about each of the elements.
Sufficiency as to specificity
notice of factual content and legal type of claim; facts must show claim is plausible, mere conclusions are insufficient, but it does not have to show the elements
Substantive sufficiency
Assume all allegations are true, and dismiss only if, as matter of law, plaintiff still couldn’t recover.
Defensive attacks on pleadings
- motion to dismiss for failure to state a claim
- motion for more definitive statement- does it give reasonable notice
- motion to strike- must not contain irrelevant, immaterial, or scandalous material
Particularity
Certain things must be alleged with particularity
fraud, mistake, special damages (damages that cannot be inferred from the fact of the injury alone, i.e. most damages)
Rule 12b motion
Certain defensive theories can be raised by motion or can be put in answer; some of the defense can be waived; also motion to strike and motion for more definitive statement
Rule 12b motions (7)
- Subject jurisdiction
- In Personam jurisdiction
- Venue
- Process
- Service
- Failure to state a claim
- Necessary person
Federal denial and admission
State court-general denial
Federal-Must
1.) parse complaint
2.) answer each allegation
3.) admit and deny in good faith
4.) fairly meet the substance of each allegation or state insufficient information to answer given allegation (operates as denial
Note: Federal court has general denial but must deny everything so unlikely you would ever use
Affirmative defenses
must be pled (notice pleading)
Defendant’s pleadings 3 basic types
Dilatory (abatement) matters (12b motion to dismiss)
Admission and denials
Affirmative Defenses-adds new set of facts that defeats the claim even if plaintiff proves all of the elements.
Federal court defensive pleadings can
be part of the answer, and some can be raised by 12b motion. 12(e) and (f) govern motion for more definitive statement and motion to strike)
Texas pleadings more specific types
Special appearance (in pers. juris) pleas to juris. (subject juris) Motion to quash service (service) Motion to transfer (Venue) Plea in abatement (parties defect) Special exception (motion to dismiss, more definite statement, strike) General denial
Amendment to pleading
of right, permissive (with leave) and relation back.
Of right amendment
before responsive pleading, once
Permissive amendment
freely given, when justice so requires. Court has broad discretion to deny amendment based on how many amendment there have been, how late it is in the case, and the nature of the amendment.
Relation back
avoids statute of limitations; added defendant received notice, so is not prejudiced; defendant knew suit would have been brought against it, except for the mistake
Texas pleading differences
Cause of action pleading, but liberal, plaintiff’s petition
Current rule 11
only applies to pleading and documents you file; implied certifications by act of signing and filing complaint; best of knowledge and based on a “reasonable investigation” (objective standard)
- No improper purpose
- Warranted by existing law (or non-frivolous argument for extension)
- Has evidentiary support (or likely will after discover, if specifically identified)
Possible Rule 11 Sanctions
Discretionary with the court, to deter (limited to), on attorneys, law firms, parties “responsible”, needs to be “appropriate sanction (judges have made lawyers go to ethics class or write a paper)
Safe harbor procedure
If you file a motion for sanctions against your opponent, you must
- Draft motion but not file
- Serve opponent with unfiled motion
- Filed only if not withdrawn within 21 days
- Separate procedure if judge initiates
- It is controversial because it shift burden of investigation to party who receives pleadings.
Method of avoiding Rule 11 sanctions
- Demand letter
- Cross Examine client
- Document the investigation
- Hire expert witness in complex case
- ) Hire legal expert who has done these kinds of cases before
- ) Do at least minimum legal research (quick and most sever sanctions when there is a case that holds your claim is frivolous)
- ) Prompt discovery (doesn’t avoid sanction but allows you to withdraw the offending pleading)
- ) Specifically identify allegation depending on discovery, etc.
Other Sanction powers of the court
Statutes (sanction for vexatiously multiplying litigation; has willfulness proof requirement)
Discovery Sanctions
General equity powers (not confined to pleadings)
