Pg 13

Question 1

What are the different grounds to transfer a case?

Answer 1

– improper court
– convenience of the parties and witnesses
– forum selection clause
– if there’s reason to think an impartial trial cannot be had there

Question 2

If a defendant moves to transfer the case to a proper court within the time to reasonably plead, and the court finds that it has no jurisdiction, where can the case be transferred to?

Answer 2

Any court that it could have originally been brought in and the case proceeds as if it was filed there from the beginning

Question 3

What is a forum selection clause?

Answer 3

An agreement between parties that suit will be filed in certain courts or states. These are common in commercial contracts and generally enforced if they are fairly communicated to both parties and reasonable

Question 4

How do you remedy incorrect venue?

Answer 4

The District Court either dismisses or transfers it to a proper place

Question 5

If a case is filed in the wrong venue by the plaintiff, what happens?

Answer 5

The federal court can transfer it to a proper federal court. The judge must either transfer or dismiss the case

Question 6

If a case is in the correct venue, but the defendant says that another venue is more convenient for the parties or witnesses in the interest of justice, what happens?

Answer 6

This is discretionary, so if the reasons trump convenience, the judge can keep the case

Question 7

What does forum non-conveniens mean?

Answer 7

It means an inappropriate or inconvenient forum. AKA: “it ain’t a good place.“

Question 8

What is forum non-conveniens?

Answer 8

The suit should have been brought in a totally different venue, so it must be dismissed because you cannot transfer it. This is brought by the defendant. It is then up to the plaintiff to re-file the case in a more appropriate judicial system. This happens when transfer is not an option

Question 9

Can state courts transfer to courts of other states?

Answer 9

No, federal courts can only transfer to other federal ones, and US courts cannot transfer to other countries

Question 10

When a foreign plaintiff makes a forum choice, how much deference is that given?

Answer 10

Very little because the United States does not want to be a litigation magnet

Question 11

What is the difference between a transfer and forum non conveniens with regard to choice of law?

Answer 11

• transfer keeps the substantive law of the original court

– forum non conveniens uses the new forum’s law

Question 12

What are the factors to consider for forum non conveniens?

Answer 12

If there is an alternate forum, the cost and location of witnesses, the source of governing law, the ability to compel witnesses, the desire to not overburden taxpayers, etc.

Question 13

What are the steps to a forum non-conveniens?

Answer 13

• locate an adequate alternative form, which could be an international tribunal
  – balance the interests: The effect on the parties, witnesses, the local interest in deciding local controversies, appropriateness, ease of access to source or proof, availability of processes to force parties to attend, obstacles to a fair trial, public interest factors, administration difficulties, etc.

Question 14

What are waivable issues?

Answer 14

Personal jurisdiction, notice, service of process, venue

Question 15

If you object to personal jurisdiction, notice, service of process, or venue, when does it have to be done?

Answer 15

Early, before answering you must make a motion or insert the objection into your answer. If you do not do that, your objection is waived and gone

Question 16

Venue is considered to be the personal privilege of who?

Answer 16

The defendant. It can be waived by not objecting when the defendant responds to the complaint

Question 17

Can SMJ ever be waived?

Answer 17

No, this can be raised any time, even on appeal

Question 18

Is it possible to first make a PJ objection and then later make a venue objection?

Answer 18

No, you must consolidate your objections and make them all at the same time (except SMJ which can be raised any time)

Question 19

Once an objection is made, what happens?

Answer 19

It is preserved

Ie: if you move to dismiss for lack of jurisdiction and you lose, then you defend on the merits, and you lose, you can still appeal and convince an appellate court that the trial court was wrong about jurisdiction

Question 20

What is the point of the Erie doctrine?

Answer 20

This is focussed on ascertaining the applicable law.

Question 21

When does the Erie doctrine apply?

Answer 21

Only to federal courts where jurisdiction comes from diversity and the underlying issue is a state law issue

Question 22

What is the Erie doctrine?

Answer 22

When federal courts, sitting in diversity, decide state law, they should use state substantive law and federal procedure.

Ie: if there is a patent issue between diverse parties, that is a federal question case that arises under federal law, so diversity is a relevant

Question 23

What is the rationale behind the Erie doctrine?

Answer 23

This is meant to give out-of-state litigants another tribunal, not another body of law. It is also meant to discourage forum shopping and to avoid inequitable administration of laws.

Question 24

Does the Erie doctrine apply in state court?

Answer 24

No, it only applies when federal courts decide state law issues

Question 25

Does the Erie doctrine apply in federal court when they are deciding constitutional or federal issues?

Answer 25

No, it only applies when federal courts decide state law issues

Question 26

What are situations that likely involve the Erie doctrine?

Answer 26

Removal jurisdiction, supplemental jurisdiction, and diversity jurisdiction

Question 27

What are examples under the Erie doctrine when a federal court would apply state law?

Answer 27

When enforcing contracts, for the validity of wills, for property transfers, etc.

Question 28

What are the two elements that are required for the Erie doctrine to apply?

Answer 28

• it must be in federal court on diversity

– there must be a conflict between state and federal law

Question 29

What are the two different types of choice of law under the Erie doctrine?

Answer 29

– vertical choice of law

– horizontal choice of law

Question 30

What is vertical choice of law?

Answer 30

Federal and state courts. The analysis depends on the circumstances and the context of what the issue is in the case. If it is a federal rule or statute, ask if that rule or statute is intended to apply and if it is valid. If it is, ask if there is a conflict with state law. If so, the federal rule prevails. If not, state law and federal law can coexist and state law can be applied. If there is no federal rule or statute, look at the analysis from Erie, York, and bird as modified by Hannah and Gasparini involving outcome determine if test based on the twin factors that takes into account countervailing federal interest

Question 31

What is horizontal choice of law?

Answer 31

Which state law should be used when more than one state law could apply. Diversity involves different states, so the court in diversity will use whatever law state courts would use to figure out the substance of the dispute. A federal court sitting in diversity will use whatever approach the state court would use to decide what state law would apply if more than one state court could apply.

Ie: if the federal court has to decide if state X or state Y’s law applies, they must follow the state laws about choice of law and do what the state court would do in that state. If suit is filed in New Hampshire and there is a choice of law issue, New Hampshire federal court uses whatever standards New Hampshire state court would use to figure out if state X or Y’s laws apply