Civil Procedure II

24 October

• The notice of removal stuff is on pp. 261, et seq. 1 p memo explaining grounds, notice of removal, certificate of service (or note that not required because of local rule-- E.D. WI saying not needed because of e-filing), certificate of interest, civil cover sheet.

  Make the caption similar to summons and complaint that you see in the materials.

• For Wednesday, exercise on pp. 292 et seq. That's all based on a real case involving coffee pitcher. Read it before class. On pp. 294-8 is memorandum describing facts of the case. Final exam will look like this: a memorandum (we'll get the facts 24 hours prior to final).
• Exam is open book, bring notes, book, etc. Don't bring a commercial outline, though.
• Byrd v. Blue Ridge Rural Electric Cooperative
  Who should decide the issue of immunity-- the court of the jury? State law says the jury.

  If state practice neither determines out the outcome nor is bound up with substantive rights and obligations, the federal court is free to accept or reject it. And the federal court can weigh uniformity of federal practice, and stuff like 7A.

• Hanna v. Plumer
  Eerie doesn't trump the FRCP, unless something in the rule goes beyond congress's powers. So when there's an explicit federal procedural rule, it takes precedence over state law (assuming the rule is constitutional and doesn't violate the Rules Enabling Act). If the clash concerns a federal practice not required by a rule, you fall back on Eerie (forum shopping or inequitable administration of the laws are the things to avoid).

  This is like Feinstein v. Mass. Gen. Hosp, just FYI.

• Semtek Intl. v. Lockheed Martin
  The preclusive effect of a federal judgment in a diversity case is dicated solely by federal common law.

  The court wants to avoid a situation where the outcome is different depending on where the case is removed from: we want some uniformity.

  But federal dismissal under Semtek precludes re-filing in state court, because there's a strong interest in enforcement of the federal rules.

  Anyway, this hinges on the second prong of Hanna: following Rule 41 completely would trump substantive rights and obligations (i.e., the right to file a lawsuit in SC, even though the CA statute of limitation has run).

• Wis. Stat. § 801.07(3) and (4)
  § 814 defines taxable costs (not attorney fees, but things like transcripts, postage, some expert fees, etc.).

  This defines the "statutory offer of settlement." A procedure whereby plaintiffs can request a specific settlement, and there's defendant skin in the game if the offer is rejected. Basically, it makes an incentive for defendants to settle.

  This doesn't exist in federal court (there's a federal rule on offers of judgment by defendants), and it's a really nice tool. It might be malpractice not to make an offer of settlement (i.e., unless there's some strategic reason not to).

  Does this rule apply in a diversity case? We shall see next time.

26 October

• Jurisdiction exercise (we were team 1).
• Complete diversity: every plaintiff has to be from a different state than every defendant.
• We missed attacking personal jurisdiction once we got to federal court. We might be able to get at least some of the parties out of there.
• Notice of removal (w/in 30), motion to dismiss for lack of personal jurisdiction (w/in 7 of removal), motion to transfer venue ()
• So remove to federal court right away, motion to dismiss or in the alternative to transfer venue (supported by affidavits of Tom & Paul, and defendants' brief). File em' swiftly.
• The personal jurisdiction motion is less likely to fly than the transfer of venue because of the standard of review.