Walker

1. Why isn't Ragan wrongly decided given Hanna? Given Ragan is OK even after Hanna, what should you do when you borrow a state statute of limitations in a federal question case because the federal statute at issue doesn't have its own statute of limitations? If the state tolling rule is to toll at service, should you toll at service or toll at filing?

Semtek

2. Consider the following passage from Scalia's opinion in Semtek concerning Rule 41(b) and the Rules Enabling Act:

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.

Does this make sense? Consider what effect Scalia's reading might have for Rule 13(a).

3.  Consider as well what Scalia says here about Rule 41(b):

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.

What happened to Hanna!?! How could Scalia make such a mistake? (Consider what the SCt was dealing with right around the time it was deciding Semtek...)

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 state court for quantum meruit (that is, for the fair value of the use of P's apartment). Under Nebraska's law of claim preclusion, an action at law concerning a transaction 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?