Federal State Choice of Law and Pleading

Question 1

Erie v. Tompkins Policies

Answer 1

1. Avoidance of excess forum shopping
2. Discrimination (irrational results based on differences due to diversity)
3. Federal interference

Question 2

Apparent basis of Erie and basic rule

Answer 2

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

Question 3

Steps to determine if substantive or procedural

Answer 3

1. 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
2. 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

Question 4

Outcome determine test says

Answer 4

if it makes a difference in outcome, its substantive. However, most rules can affect outcome.

Question 5

Absolute or definitive outcome test

Answer 5

says the rule has to have decisional quality to be substantive and that will definitely change the outcome.

Question 6

Federal-state balancing test

Answer 6

says that rule if strong state policy controls its substantive, and that if strong federal policy controls, it is procedural

Question 7

Basic test: Policies of Erie

Answer 7

Will the rule create forum shopping; does it create different results if used in different states; does it have irrational differences in result

Question 8

Federal judge when comes to state law claims should

Answer 8

be ventriloquist and do what state court judge would do if substantive

Question 9

Multi-state choice of law

Answer 9

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

Question 10

Texas choice of law

Answer 10

most significant relationship

Question 11

Lex Loci Delicti

Answer 11

law of place of injury

Question 12

Most significant relationship

Answer 12

state that has most significant relationship to the issue

Question 13

Difficulty in determining state law

Answer 13

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.

Question 14

Federal Notice pleading

Answer 14

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.

Question 15

Modern liberalized cause of action pleading

Answer 15

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.

Question 16

Sufficiency as to specificity

Answer 16

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

Question 17

Substantive sufficiency

Answer 17

Assume all allegations are true, and dismiss only if, as matter of law, plaintiff still couldn’t recover.

Question 18

Defensive attacks on pleadings

Answer 18

1. motion to dismiss for failure to state a claim
2. motion for more definitive statement- does it give reasonable notice
3. motion to strike- must not contain irrelevant, immaterial, or scandalous material

Question 19

Particularity

Answer 19

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)

Question 20

Rule 12b motion

Answer 20

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

Question 21

Rule 12b motions (7)

Answer 21

1. Subject jurisdiction
2. In Personam jurisdiction
3. Venue
4. Process
5. Service
6. Failure to state a claim
7. Necessary person

Question 22

Federal denial and admission

Answer 22

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

Question 23

Affirmative defenses

Answer 23

must be pled (notice pleading)

Question 24

Defendant’s pleadings 3 basic types

Answer 24

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.

Question 25

Federal court defensive pleadings can

Answer 25

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)

Question 26

Texas pleadings more specific types

Answer 26

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

Question 27

Amendment to pleading

Answer 27

of right, permissive (with leave) and relation back.

Question 28

Of right amendment

Answer 28

before responsive pleading, once

Question 29

Permissive amendment

Answer 29

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.

Question 30

Relation back

Answer 30

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

Question 31

Texas pleading differences

Answer 31

Cause of action pleading, but liberal, plaintiff’s petition

Question 32

Current rule 11

Answer 32

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)

1. No improper purpose
2. Warranted by existing law (or non-frivolous argument for extension)
3. Has evidentiary support (or likely will after discover, if specifically identified)

Question 33

Possible Rule 11 Sanctions

Answer 33

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)

Question 34

Safe harbor procedure

Answer 34

If you file a motion for sanctions against your opponent, you must

1. Draft motion but not file
2. Serve opponent with unfiled motion
3. Filed only if not withdrawn within 21 days
4. Separate procedure if judge initiates
5. It is controversial because it shift burden of investigation to party who receives pleadings.

Question 35

Method of avoiding Rule 11 sanctions

Answer 35

1. Demand letter
2. Cross Examine client
3. Document the investigation
4. Hire expert witness in complex case
5. ) Hire legal expert who has done these kinds of cases before
6. ) Do at least minimum legal research (quick and most sever sanctions when there is a case that holds your claim is frivolous)
7. ) Prompt discovery (doesn’t avoid sanction but allows you to withdraw the offending pleading)
8. ) Specifically identify allegation depending on discovery, etc.

Question 36

Other Sanction powers of the court

Answer 36

Statutes (sanction for vexatiously multiplying litigation; has willfulness proof requirement)
Discovery Sanctions
General equity powers (not confined to pleadings)