28 U.S.C. § 2072. - Rules of procedure and evidence; power to prescribe

(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any substantive right. . . .

Hanna (p. 364-65)
There is, however, a more fundamental flaw in respondent's syllogism: the incorrect assumption that the rule of Erie R. Co. v. Tompkins constitutes the appropriate test of the validity and therefore the applicability of a Federal Rule of Civil Procedure.  We are reminded by the Erie opinion that neither Congress nor the federal courts can, under the guise of formulating rules of decision for federal courts, fashion rules which are not supported by a grant of federal authority contained in Article I or some other section of the Constitution; in such areas state law must govern because there can be no other law. But the opinion in Erie, which involved no Federal Rule and dealt with a question which was "substantive" in every traditional sense (whether the railroad owed a duty of care to Tompkins as a trespasser or a licensee), surely neither said nor implied that measures like Rule [4(e)] are unconstitutional. For the constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either. Neither York nor the cases following it ever suggested that the rule there laid down for coping with situations where no Federal Rule applies is coextensive with the limitation on Congress to which Erie had adverted.

Hanna (p. 362)

The [Erie] decision was also in part a reaction to the practice of 'forum-shopping' which had grown up in response to the rule of Swift v. Tyson. That the York test was an attempt to effectuate these policies is demonstrated by the fact that the opinion framed the inquiry in terms of 'substantial' variations between state and federal litigation. Not only are nonsubstantial, or trivial, variations not likely to raise the sort of equal protection problems which troubled the Court in Erie; they are also unlikely to influence the choice of a forum. The 'outcome-determination' test therefore cannot be read without reference to the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.


1) P sues D in federal court in New York under 42 USC 1983 for civil rights violations. 1983 does not have its own statute of limitations, so federal courts borrow analogous state statute of limitations from the state where the federal court is located. New York's statute of limitations is two years. This statute of limitations ran out between the time that P filed in federal court and the time P served D. Under the federal rule, statute of limitations are tolled at filing. Under the New York state rule they are tolled at service. Is P's action barred?

2) P (Illinois) sues the D Corp (Delaware state of incorporation, PPB Kansas) and X (South Carolina) in federal court in South Carolina. The cause of action concerns a plane crash in Tennessee. The plane was manufactured by D in Kansas. X briefly serviced the plane in South Carolina prior to the crash. South Carolina has a door closing statute that says that a foreign resident can sue foreign corporation only on causes of action arising in the state of South Carolina. Federal courts have no such rule. D asks that the action against it be dismissed on the basis of the South Carolina statute. Does the South Carolina rule apply in federal court?

Federal Procedural Law

U.S. Const.
    (e.g. 5th A. due process, 7th A. right to jury trial)
Federal Statutes
    (e.g. 28 USC 1331, 1332, 1367, 1391)
Fed. R. Civ. P.
    (e.g. R. 4, 8, 9(b), 11, 12, 13, 14, 15, 18, 20, 24, 26, 41(b), 56)
Federal Procedural Common  Law
    (e.g. law of claim and issue preclusion - and any absence of a state law)


Semtek

And even apart from the purely default character of Rule 41(b), it would be peculiar to find a rule governing the effect that must be accorded federal judgments by other courts ensconced in rules governing the internal procedures of the rendering court itself. Indeed, such a rule would arguably violate the jurisdictional limitation of the Rules Enabling Act: that the Rules "shall not abridge, enlarge or modify any substantive right," 28 U.S.C. § 2072(b). In the present case, for example, if California law left petitioner free to sue on this claim in Maryland even after the California statute of limitations had expired, the federal court's extinguishment of that right (through Rule 41(b)'s mandated claim-preclusive effect of its judgment) would seem to violate this limitation.

<>3) P sues D for negligence in federal court in California. Judgment for D. California does not have a compulsory counterclaim rule. D failed to counterclaim against P concerning the damages D sustained in the accident. D subsequently sues P for these damages in Maryland state court.




Moreover, as so interpreted, the Rule would in many cases violate the federalism principle of Erie R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), by engendering " 'substantial' variations [in outcomes] between state and federal litigation" which would "[l]ikely ... influence the choice of a forum," Hanna v. Plumer, 380 U.S. 460, 467-468, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). With regard to the claim-preclusion issue involved in the present case, for example, the traditional rule is that expiration of the applicable statute of limitations merely bars the remedy and does not extinguish the substantive right, so that dismissal on that ground does not have claim-preclusive effect in other jurisdictions with longer, unexpired limitations periods. Out-of-state defendants sued on stale claims in California and in other States adhering to this traditional rule would systematically remove state-law suits brought against them to federal court--where, unless otherwise specified, a statute-of- limitations dismissal would bar suit everywhere.

 4) P sues D in federal court in diversity in Nebraska. P's suit is for rent due. Judgment for D - the lease is held to be in violation of the statute of frauds (it should have been in writing). P subsequently sues D in state court in Nebraska for quantum meruit (that is, for the fair value of D's use of P's apartment). Under Nebraska's law of claim preclusion, an action at law may be followed by an action at equity concerning that same transaction. Does the Nebraska or the federal (transactional) rule concerning the scope of P's claim against D?

5) On July 23, 2004, D Airlines Flight 257 from Bogota, Columbia to Rio de Janiero, Brazil crashed while taking off from Bogota-Eldorado International Airport. All 52 passengers on board were killed. On September 1, 2004, personal representatives of the deceased passengers filed a wrongful-death class action against D Airlines in state court in Louisiana. The defendant removed the case to federal court.


D Airlines is licensed to do business in La. So there is PJ. But under the judicially-created doctrine of forum non conveniens, an action may be dismissed even when there is jurisdiction over the parties and the relevant venue requirements are satisfied, because there is another more convenient forum. When an action is dismissed on forum non conveniens grounds by a federal court, the more convenient forum is usually in another country, since, if the more convenient forum were another federal district, transfer, not dismissal, would be available.

The federal doctrine of forum non conveniens rests upon a court's power to control the parties and cases before it and to prevent its process from becoming an instrument of abuse or injustice. Some considerations in applying the doctrine include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained.”

Forum non conveniens also exists because of the recognition that a plaintiff may have chosen the forum precisely to impose burdens upon the defendant, even if there are some increased costs to the plaintiff himself as well. Factors of public interest also have place in applying the doctrine. As the Supreme Court has said:

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.


Louisiana state courts. in contrast, will not dismiss a case on forum non conveniens if a party is a resident. They have determined that any corporation licensed to do business in the state (which would include D Airlines) is a resident. Louisiana, it is thought, has a sufficient interest in a case with a Louisiana resident for it to be entertained by a Louisiana court despite the inconvenience involved. Standing behind Louisiana’s approach is also skepticism about the adequacy of procedures in foreign courts. Indeed, often no relief is available at all in the allegedly more convenient court after a dismissal on forum non conveniens grounds.

Does federal or state forum non-convenience law apply?

6) P (a citizen of New York) sues D (a citizen of Connecticut) in the Federal District Court for the District of Connecticut. P’s suit is under New York state battery law and concerns a brawl between P, D and X in New York City. X (a citizen of New York) is not a party to P’s suit. But X voluntarily appears in Connecticut for a deposition in which he recounts his version of the brawl with P and D. X has no other connection with the state of Connecticut besides this voluntary appearance. During the deposition in Connecticut, X is tagged as a defendant in connection with a suit brought by Y (a citizen of Connecticut) in the Federal District Court for the District of Connecticut. Y’s suit concerns a brawl between X and Y in Germany. X brings a motion to dismiss for lack of personal jurisdiction, arguing that he is immune from service of process (that is, cannot be subject to personal jurisdiction through tagging) while in Connecticut for the purpose of attending a deposition in connection with another lawsuit.

There are two cases that might be on point. The first, Case 1, is from the United States Supreme Court. In Case 1, an out-of-state witness appeared voluntarily to testify in connection with a federal securities law action brought in federal court in New York. While in New York, the witness was tagged as a defendant in connection with an unrelated federal civil rights suit brought in a federal court in New York. The Supreme Court concluded that the witness was not subject to personal jurisdiction in the second suit. Such immunity, the Supreme Court conceded, was not demanded by the United States Constitution, nor did follow from any federal statute or Federal Rule of Civil Procedure. But it offered the following as a justification:

The privilege which is asserted … is founded in the necessities of the judicial administration….Witnesses would be chary of coming within our jurisdiction, and would be exposed to dangerous influences, if they might be punished with a lawsuit….

The second case is from the Connecticut Supreme Court. In Case 2, an out-of-state witness had voluntarily entered Connecticut in order to give a deposition in connection with state-law tort case brought in Connecticut state court. While in Connecticut, the witness was tagged as a defendant in connection with an unrelated state-law battery action also brought in Connecticut state court. The Connecticut Supreme Court concluded that the witness was subject to personal jurisdiction in the second suit, articulating a common law rule that voluntary presence in the state as a witness does not provide immunity from service of process. Such immunity, the court reasoned, should exist only for witnesses who are legally compelled to enter the state to testify.

Will X’s motion to dismiss for lack of personal jurisdiction succeed and why or why not?