CivProGuideOL(a) - I rie; ask onlyCan YES...

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Venue Subject-Matter Jurisdiction Personal Jurisdiction Fed policy weightier: follow fed policy (Byrd) State policy weightier follow state policy (York) al is the state policy weightier than the fed policy viewed in the twin aims of Erie (forum shopping and equitable admin of laws)? Basically substantive follow state policy or rule , as required by Erie NO – is the state policy or rule basically procedural or substantive ? YES – use Fed Common Law – Is the area one of the few suitable areas for fed common law ? (eg, a defense that raises a fed Q, etc) No – Follow Fed Policy Does fed policy conflict w/ state rule or policy? If No…. YES – apply both FRCP and state policy Erie; ask only if FRCP is valid under REA (Hanna 2 does it abridge, enlarge, modify? If not, valid) YES – Can both Fed R and state policy be followed simultaneously? NO– is there a FRCP on point? YES – Ignore Erie YES – is there a fed statute on point? NO – Ignore Erie Is this a diversity case? I. CHOOSING A SYTEM OF PROCEDURE The Adversarial System: (1) Neutral Judges o Band’s Refuse Removal, Inc. v. Borough of Fair Lawn Judge may not assume the role of advocate. The power of a judge must be exercised with the greatest restraint. Courts must both be impartial and give the appearance of impartiality . It’s a matter of degree: appointing an amicus curiae, calling 27 witnesses, ex parte communications = too much. (2) Party-driven Litigation o Parties are expected to prepare with minimal judicial interference. o Kothe v. Smith The judge tried to coerce a pretrial settlement and then wrongfully imposed sanctions after a settlement was reached after a day of trial. Rule 16 – encourages settlements, but doesn’t coerce them. Rule 68 – forces P to pay costs if she is awarded less money than she was offered as a settlement. Overview of the Process: Note : There is a tension between individual justice (due process) and legal efficiency . Step 1 – Determining whether or not you should go to trial: o Is there a remedy? What kind of relief is sought? Is it worth litigating? Step 2 – Choosing the venue: o Must consider where you can bring case, and what the pros/cons are. o Must also consider state system v. federal system: Federal – jurisdiction limited to (1) federal questions, and (2) diversity. State – general jurisdiction. Step 3 – The lawsuit (in federal court): o (1) A complaint is filed with the clerk of the court, or a waiver of service is filed. o (2) The D answers the complaint. This pretrial answer is an opportunity to claim no jurisdiction, improper venue, failure to state a claim, etc. [ Rule 12(b) ]. o
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This note was uploaded on 01/10/2011 for the course LAW Civ Pro taught by Professor Arkin during the Spring '10 term at Fordham.

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CivProGuideOL(a) - I rie; ask onlyCan YES...

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