Civil Procedure

Preliminary Assignment Sheet (Subject to Revision)
Dated: 7/26/2010

Professor Yablon Fall 2010
Sections BC

I

INTRODUCTION TO THE LITIGATION PROCESS

Mon. Aug. 30: Introduction to federal and state judicial systems

CB 1-12, FRCP 1, 28 U.S.C. § 41, 44,132,133, 1331, 1332.

What is the basic structure of the federal judiciary? How do federal courts differ from state courts? What are pleadings and what purpose do they serve?

Tues. Aug. 31: Overview of the litigation process

CB 13-21

FRCP 3, 4

What are the differences between subject matter jurisdiction, personal jurisdiction and venue? How is a lawsuit commenced in federal court?

Wed. Sept. 1: Motions and Discovery Practice

CB 20-34

FRCP 7(b), 26(b)(1)

What is a motion? How does one go about making a motion in federal court? What is discovery and when does it take place? What is the difference between depositions and interrogatories?

Thurs. Sept. 2: Motions and Discovery Practice (cont’d)

CB 34-46

FRCP 8, 11, 12, 38, 28 U.S.C. §§ 1291, 1292

What is a demurrer? Is it permitted in federal court today? What has replaced it? What is the significance of Rule 11 for pleadings? When are litigants in a federal lawsuit entitled to a trial by jury? What happens if plaintiff wants a jury trial and defendant does not? What if the reverse is true? When can an appeal be taken from a federal court decision? What kinds of issues can be appealed from a state court to the United States Supreme Court? What issues cannot be appealed?

Tues. Sept. 7: Rose v. Giamatti

CB 47-58, 28 U.S.C. §§ 1441, 1446

Answer the questions on pages 57 and 58 of the Casebook.

II

SERVICE OF PROCESS

Mon. Sept. 13: Mechanics of Service of Process

CB 256 - 264

FRCP 4, Forms 3, 5, 6

What documents constitute service of process? How may it be done in federal court? Is personal in-hand service required? Is service by mail permitted?

Tues. Sept. 14: Mechanics of Service under New York State Law

New York C.P.L.R. § 308 (to be posted on Angel)

In what ways is service under New York law different from service under FRCP Rule 4? Can C.P.L.R. 308 ever be used to effect service in federal court? What can you do, (as a plaintiff’s attorney) if defendant appears to be avoiding service? If defendant’s whereabouts are unknown?

Wed. Sept. 15: Constitutional limits on service of process

CB 245 - 256, Amendment 14 of the United States Constitution

How does the Constitution limit federal and state power to enact rules governing service of process? What kind of service was involved in Mullane? What legal standard does the Court announce in Mullane for determining whether the notice is constitutional?
Does the Constitution require that defendants receive actual notice of the pendency of the action? Could a state enact laws requiring such actual notice for valid service? Should it?

Thurs. Sept. 16: Constitutional limits on service of process (cont’d)

III

PERSONAL JURISDICTION

Thurs. Sept. 16: Traditional Bases of Jurisdiction: Pennoyer

CB 59 - 70

Why would a plaintiff want to sue a defendant in a state other than the one where defendant lives? Are there constitutional limits on the extent to which states may permit such lawsuits? What limits were set in Pennoyer?

Mon. Sept. 20: Traditional Bases of Jurisdiction:

Pennoyer and Hess v. Pawloski

CB 70 - 77

How did the invention of the automobile place stress on the limits of personal jurisdiction set forth in Pennoyer? How did Massachusetts try to deal with that problem? How did the growth of multi-state corporate activity place stress on the Pennoyer paradigm of personal jurisdiction?

Tues. Sept. 21: International Shoe and a New Paradigm

CB 77 - 82

Does Shoe expand the permissible limits of state law personal jurisdiction relative to prior case law? How does it change prior judicial conceptions of personal jurisdiction?

Mon. Sept. 27: Helicopteros and General Jurisdiction

CB 83 - 97

What are the differences between general and specific jurisdiction? Why is it constitutionally important to determine whether plaintiff’s claims arise out of defendant’s activities in the forum state?

Tues. Sept. 28: Constitutional Limits on Long-Arm Statutes, World-Wide Volkswagen,

CB 97 - 121

What is a long-arm (or specific act) statute? What is it designed to do? Why does it potentially create constitutional issues? Read the New York long arm statute, C.P.L.R, 302 (CB 107). Do you see any unusual exceptions to the statute?

Who is Woodson? Does World-Wide expand or contract the permissible limits of state court personal jurisdiction relative to Shoe and Gray? Why did the plaintiffs fight so hard to keep personal jurisdiction over Seaway and World-Wide?

Wed. Sept. 29: Asahi Metal v. Superior Court

CB 121 – 135 (1 additional note in Casebook Supp.)

Which portions of the Asahi decision constitute the majority of the Supreme Court? Did Asahi present a stronger or weaker case for personal jurisdiction than World-Wide Volkswagen? Does Asahi expand or contract the permissible limits of state court personal jurisdiction relative to prior case law?

Mon. Oct. 4: Calder v. Jones

CB 135 – 147 (3 additional notes in Casebook Supp.)

Why did the Supreme Court find that personal jurisdiction was constitutionally permissible in Calder but not in World-Wide?

Tues. Oct. 5: Burger King, Nationwide Federal Court Jurisdiction

CB 148 – 175 FRCP 4(k)

What is the difference between contractual choice of law clauses and choice of forum clauses? Which was involved in Burger King?

Are there constitutional problems with federal courts asserting nationwide personal jurisdiction in all cases? When FRCP 4(k)(2) was enacted, there were concerns about its validity. Can you determine why? (Hint: look at 28 U.S.C. §2072(b)).

Wed. Oct 6: Property-Based Jurisdiction – Shaffer v. Heitner

CB 175 – 195 (1 additional note in Casebook Supp.)

What is the difference between in rem and quasi-in-rem jurisdiction? Which was involved in Shaffer? Does the decision in Shaffer expand or contract the permissible limits of state court personal jurisdiction relative to prior case law?

Thurs. Oct. 7: Burnham v. Superior Court, European Approaches to Jurisdiction [

CB 195 - 214

How does Justice Scalia distinguish Shaffer in his decision in Burnham? In what respects does Justice Brennan disagree with Justice Scalia’s approach in Burnham?

Jurisdictionally speaking, is it easier to sue multinational corporations in the United States or Europe? IV

CHOICE OF LAW, VENUE, FORUM NON CONVENIENS AND TRANSFER

Mon. Oct. 11: Choice of Law Rules

CB 214 – 226

What is a choice of law rule? Are they generally matters of state or federal law? How clear and predictable is the Minnesota choice of law rule in Hague? Could it be made clearer? Should it?

Tues. Oct: 12: Venue and Piper Aircraft

CB 264 – 288, 28 U.S.C. §1391, 28 U.S.C §1404

What is the difference between venue and subject matter jurisdiction? Can there be more than one proper venue for a case? Can a court refuse to hear a case over which it has subject matter jurisdiction, personal jurisdiction and proper venue?

What is the difference between a forum non conveniens motion and a transfer motion pursuant to 28 U.S.C §1404? Which was made in Piper Aircraft?

Wed. Oct. 13: Piper (cont’d) Ferens v. John Deere

CB 289 - 300

Whose position in Ferens do you think is more likely to reduce forum shopping, Justice Kennedy’s or Scalia’s?

Thurs. Oct. 14: Ferens (cont’d)

V

SUBJECT MATTER JURISDICTION

Thurs. Oct. 14: Diversity Jurisdiction

CB 301 – 317, (2 additional notes in Casebook Supp.) 28 U.S.C. §§ 1332, 1441

What is the source of the rule of complete diversity? Could Congress change it? Could Congress abolish diversity jurisdiction? Should it do so?

Mon. Oct. 18: Federal Question Jurisdiction

CB 342 - 348, (1 additional note in Casebook Supp.) 28 U.S.C. § 1331

What is the “well pleaded complaint” rule? Under Mottley, what court will decide the constitutionality of the federal statute in the first instance?

Tues. Oct. 19: Supplemental Jurisdiction Prior to 28 U.S.C. § 1367, Owen v. Kroger

CB 371 - 393, FRCP 13(a), (b), and (g), 14(a), 28 U.S.C. § 1367

What is the basis for federal jurisdiction over the state law claims in UMW v. Gibbs? Suppose A, a songwriter, sues BMG Records for copyright infringement. BMG, claiming that A had granted them a license to the disputed song, counterclaims for copyright infringement. What portions of this case can be adjudicated in federal court? What if the contactual counterclaim against A involved a different song unrelated to his copyright claim?

Does a federal court lack subject matter jurisdiction of all state claims between non-diverse parties? If not, why did it lack jurisdiction over the claims in Owen? Did enactment of 28 U.S.C. § 1367 change the result in Owen?

Wed. Oct. 20: Exxon Mobil v. Allapattah

CB 393 - 415

How does Allapattah resolve an anomaly in the language of § 1367? Do you think the drafters of the statute intended that result? Be prepared to answer the review problems on pages 414 - 415.

VI

THE ERIE PROBLEM AND CHOICE OF LAW

Thurs. Oct 21: The Erie Problem

CB 429 - 460

What are the reasons Justice Brandeis gives for abandoning the doctrine of Swift v. Tyson? Are his concerns equitable, statutory, constitutional or some combination? If state law is to be applied in federal court, what determines which state’s law is to be applied?

What potential conflicts between state and federal legal rules were involved in York and Byrd? Is the standard for determining whether a rule is substantive or procedural for Erie purposes the same in York and Byrd?

Mon. Oct. 25: Hanna v. Plumer

CB 460 - 473, 28 U.S.C. §§ 2072, 2073, 2074

Does the Court in Hanna think it significant that the state rule in that case conflicts with a Federal Rule of Civil Procedure? Would the Court have applied a different standard if the conflict had been between a rule governing federal practice derived from case law and a contrary state law rule?

Tues. Oct. 26: Hanna (cont’d) and Gasperini

CB 473 – 481, 493 - 509

What was the state rule involved in Gasperini? With what federal rule was it alleged to conflict? How does Justice Ginsburg resolve the issue? On what basis would Justice Scalia have resolved the case?

Wed. Oct. 27: Substantive Federal Common Law

CB 521 - 534

Is there any federal statutory authorization for a “government contractor defense?” On what basis does Justice Scalia find federal authority for applying such a federal legal rule?

VII

PLEADINGS

Thurs. Oct. 28: Introduction to Pleadings, Rule 11

CB 535- 558, FRCP 7, 8, 11, 12(e), 15; Woburn Case: Original Complaint; Second Amended Complaint.

What are the purposes of a complaint? Under the current federal rules, is it possible for a plaintiff to state a claim even if plaintiff is uncertain about many of the facts that may have given rise to that claim? Should a plaintiff be able to do so?

Your client seeks to sue defendant for negligence, claiming that he ran a red light and the accident was all his fault. Defendant says it was your client’s fault. Should you do anything else before drafting the complaint? Does Rule 11 prevent lawyers from bringing cases that challenge and seek to change existing legal rules?

Mon. Nov. 1: Rule 11( cont’d), Pleading Strategy and Answers

CB 592 – 600, FRCP 8(b), (d), 11(b) (4)
A Civil Action chapter titled “Rule 11”
Grace’s Rule 11 motion, Answer of Grace, Beatrice Answers Parts I & II

What was the basis of Grace’s Rule 11 motion? Why do you think Beatrice failed to join in the motion? What is the difference between burdens of pleadings burdens of proof? Who has the burden of pleading the defenses set forth in Rule 8(c)?

What are the various ways a defendant can respond in the Answer to the allegations in the Complaint? What is the effect of a denial of knowledge or information sufficient to form a belief?

Tues. Nov. 2: Pleading Detail, Bell v. Twombly, AshCroft v. Iqbal

CB 564 – 592, FRCP 8

Read Iqbal in Casebook Supp.

What does the majority think is the problem with the complaint in Twombly? How can it be corrected? Is Twombly consistent with FRCP 8? What considerations do you think led the majority to tighten pleading standards?

Did Twombly require the result reached in Iqbal? How did Iqbal’s lawyers try to avoid that result? Did Iqbal involve only procedural issues, or did the Supreme Court reach substantive issues as well?

Wed. Nov. 3. Iqbal (cont’d), Amending the Pleadings

CB 606- 608, FRCP 15

A is injured during plastic surgery and sues the hospital in which the surgery was performed. A month after filing the complaint, the statute of limitations expires. During subsequent discovery A learns that his injuries were caused by faulty sutures. Can he amend his complaint to add the suture manufacturer as a defendant?

VIII

DISCOVERY, SUMMARY JUDGMENT AND POST-TRIAL MOTIONS

Thurs. Nov. 4: Introduction to Discovery

CB 608 - 624, FRCP 26(a) & (b), Grace’s Objections to Interrogatories

What are the purposes of discovery? What are the advantages and disadvantages of broad discovery rules? What are the major methods of obtaining discovery? What is the difference between disclosure under Rule 26(a) and discovery under 26(b)?

Mon. Nov. 8: Privileges and Scope of Discovery

CB 624 - 634, FRCP 33, 34

Suppose plaintiff sues Ford Motor for an alleged defect in the design of its fuel tank. Can it obtain, from Ford, complaints and other public filings from other litigation that involved similar design defects?

Tues. Nov. 9: Work Product

CB 634 - 647, FRCP 26(b)(3)

Why weren’t the materials in Hickman protected by the attorney-client privilege? Why do the Rules provide greater protection for work product which reveals mental impressions?

Wed. Nov. 10: Discovery Procedure and Sanctions

CB 647 - 653, FRCP 37

You receive a document request seeking information you believe is protected work product. What motion can you make to protect your client from disclosing it? Do you have to make a motion? Assume you are the party seeking the information and do not believe it is protected work product. If the other side refuses to provide the information, what can you do?

Thurs. Nov. 11: Summary Judgment

CB 654 – 677, FRCP 56

What is the relationship between summary judgment and burdens of proof? When can a defendant use summary judgment to dismiss a case that defendant believes has no factual support?

Mon. Nov. 15: Judgment as a Matter of Law

CB 695 - 717, FRCP 50

Under what circumstances can the judge grant judgment in favor of a party after the jury has delivered a verdict adverse to that party?

Tues. Nov. 16: Remittitur and Constitutional Limitations on Damages

CB 717 - 718, Williams v. Philip Morris (to be posted on Angel)

What is the source of federal constitutional limits on state created rights to damages?

IX

INJUNCTIONS AND EQUITABLE REMEDIES

Wed. Nov.17: Preliminary Injunctions

CB 739 - 755, FRCP 56

Is it appropriate for a court to grant relief before it has decided the merits of the case? How are these factors reflected in the standard for granting preliminary injunctions? What makes a potential injury “irreparable?”

X

PARTIES

Thurs. Nov. 18: Joinder of Claims

CB 899 - 913, FRCP 13, 14, 18

What would have been the result in Grumman if the prior Mass. action had been finally resolved (by judgment or settlement) without assertion of a counterclaim by Grumman?

Mon. Nov. 22: Joinder of Parties

CB 913 -939, 945 – 947, FRCP 19, 20, 22, 24, 28 U.S.C. §§ 1335, 2361

Suppose 3 people, A, a New York resident, B, from New Jersey and C, from California, all claim ownership of a valuable ring in the possession of D, who is also from New York. Can D resolve the question of ownership of the ring in a single action?
In Pimental, why was a Philippine Government a necessary party? What standard of appellate review did the Supreme Court apply?

Tues. Nov. 23: Class Actions

CB 939- 945, 947 – 950, 957 - 974, Rule 23

What are the differences between class actions brought under Rules 23(b)(1), 23(b)(2) and 23(b)(3)? Is the Eisen decision applicable to all class actions?

Mon. Nov. 29: Class Actions and Amchem

CB 975-1008 , 28 U.S.C. § 1332(d) (Class Action Fairness Act, Sec. 4)

Amid scattered reports that the Soony Playbox3 can cause seizures in teenagers who play the game for long periods of time, A, who has suffered such seizures, seeks to bring a nationwide class action on behalf of all purchasers of the Playbox3. Will it be certified as a class action under Rule 23? What does Section 4 of the Class Action Fairness Act seek to accomplish? What is the problem to which it is addressed?

Does Amchem permit a class to be certified for settlement purposes only?

XI

JUDGMENTS

Tues. Nov. 30: Claim Preclusion

CB 775- 795, 801 – 808, FRCP 41(b), 60 (b)

What are the values served by the doctrine of claim preclusion? What is a “claim?” How stringently should the rules of claim preclusion be applied? Should a court have discretion not to apply claim preclusion in particular cases?

Wed. Dec. 1: Issue Preclusion/Collateral Estoppel

CB 808 - 841

What elements are necessary to establish issue preclusion? Do courts have discretion not to apply issue preclusion in a particular case. What are the arguments in favor of an expansive definition of privity in issue preclusion cases? What are the arguments against it?

Thurs. Dec. 2: Offensive and Defensive Issue Preclusion

CB 841-860 (additional note in casebook supp.)

What is the difference between offensive and defensive use of issue preclusion? Does Parklane require application of offensive issue preclusion?

Mon. Dec. 6: Interjurisdictional Preclusion

CB 860 – 884, U.S. Const. Art. IV, Sec. 1, 28 U.S.C. § 1738

Why is Marrese analyzed under the Full Faith and Credit Act rather than the Full Faith and Credit Clause? What is the relation between these rules and the doctrines of res judicata?

Tues. Dec. 7: Semtek International v. Lockheed

CB 884 - 895

According to Semtek, whose law governs the preclusive effect of a judgment of a federal court sitting in diversity? According to Semtek, whose preclusion rule should be applied to determine the issue in this particular case?
XII

APPEALS Wed. Dec. 8: Appealability

CB 1035 – 1060

Is the collateral order doctrine an exception to the final judgment rule? How broadly should it be applied?

Thurs. Dec. 9: Overflow and Review