Subject Matter Jurisdiction Roadmap:

 Under Article 3, section 2, the federal courts have limited SMJ jdx. They can only hear two types of
cases- federal question or diversity.

 Analysis of Diversity:

o Diversity is determined by the state of citizenship of the parties at the time the suit is filed.
Under 1332(a)(1) there are two requirements that must be met for a case to be considered in a
diversity suit.
o First, the case must be between citizens of different states. Second, the amount in controversy
must exceed $75K.
o Complete Diversity?
 Under Strawbridge, there must be complete diversity between opposing parties,
meaning that all Ps must be citizens of a different state than the Ds at the time the suit
is brought.
 Citizenship of humans
 A person is a citizen of the state in which they are domiciled: where they
intended their home to be (license, taxes, vote), and where they are physically
present (permanent residence).
o State of mind: where do you intend to return to as your home.
o Under 1332(a)(3): would have diversity with someone from foreign state
but not if domiciled in the same state, under 1332(a)(2)
o Stateless citizens have no domicile and destroys complete diversity
(Newman Green)
 Citizenship of corporations
 Under 1332(c), a corporation is a citizen of the state where it is incorporated and
where it has its PPB
 A corporation’s PPB is where it has its nerve center; in other words, the place
where managers direct, control, and coordinate corporate activities (Hertz)
 Citizenship of unincorporated businesses:
 Ex; partnerships, LLCs
 Unincorporated businesses are citizens of the state where their members are
citizens
o Amount in Controversy
 The amount in controversy must exceed $75K, exclusive of interests and costs
 Aggregation under Rule 18
 Aggregation allows multiple claims to be added together in order to meet the
amount in controversy
 The claims may be aggregated if there is one P v. one D, and don’t have to be
related claims
 Cannot aggregate if there are multiple parties on either side
o Example, Two Ps with $40K cannot aggregate to meet
 If multiple parties are joined, you can aggregate the claim to meet $75K where
one of the Ps already meets $75K
 For joint parties, they do not take into consideration the number of parties on
either side. Here, the total value of the claim is used.
 Analysis of Federal Question Jurisdiction
o Under 1331, the federal courts are authorized to hear federal question cases.
o Federal question cases must arise under federal law.
 To determine if a case arises under federal law, look to the well-plead complaint rule
under Mottley
 Under Mottley, the P’s claim is analyzed to see whether the federal issue raised
is necessary to the complaint (has to be in P’s cause of action, not the D’s
defense).
 To have FQ jdx, the P’s claim must arise under federal law; it is not enough if the
defense does. Anticipation of a federal question defense are not necessary to
the complaint and therefore, do not establish FQ.
 If the party is seeking Declaratory Judgment, analyze under Skelly
 The case must have another SMJ basis because declaratory judgments can’t be
used to avoid well-plead complaint. Can’t ask courts to declare that hit has SMJ
over the D
 According to Skelly, first establish who is suing for alternative relief (injunction or
damages) and then see if that party’s complaint would arise under federal law.
 If it does, then there is FQ jdx and federal court can hear. If not, there is no FQ
jdx.
 Supplemental Jurisdiction
o Another way to get jurisdiction over a claim that arises once a case is already in federal court is
through supplemental jurisdiction.
o In Gibbs, SCOTUS authorized the federal court to hear a non FQ, non diversity claim because it
was part of the same case or controversy and shared a common nucleus of operative fact as the
original claim, which was already in federal court under FQ
o 1367 codified Gibbs, so now whether a party has supplemental jdx is analyzed under this
statute.
 1367(a) grants supplemental jdx if the claim meets the test established in Gibbs, which
grants supplemental jdx if the claim arises from a common nucleus of operative fact (or
same transaction or occurrence) as the underlying case
 Joinder and Intervention
 1367(a) expressly includes claims that involve the joinder or intervention of
additional parties
 1367(b) however, takes away supplemental jdx in diversity cases over claims
made by the P under Rule 14, 19, 20 and 24
o if claim arises under one of these rules:
 because this is a diversity case, and the claim made by the P arises
under Rule [ ], supplemental jdx cannot be extended to this claim
 supplemental jdx is more narrowly available in diversity than in
FQ cases
o if D1 (or third party P) impleads third party D, and they are not diverse,
can still get supplemental jdx.
o If claim doesn’t arise under rule OR not diversity:
 Even though this is a diversity case, the P’s claim does not arise
under any of the prohibited rules
 Because this is a federal question case, not a diversity case, the
limits set out in 1367(b) do not apply
 Under 1367 you can: (less relevant but good to note)
  Add a non-diverse D in FQ cases
 P can add a D on a state claim that doesn’t satisfy the jurisdictional amount in
diversity cases (Exxon)
o As long as one P fulfills the minimum amount of $75K allowed
 P can add diverse D on state claim that doesn’t satisfy the jurisdiction amount in
FQ case
 1367(c) also provides limitations to supplemental jdx because it authorizes the courts to
decline for supplemental jdx for discretionary reasons. These reasons include:
 1) economy, convenience, fairness to litigants;
 2) if the state issues predominate;
 3) if hearing the state claim would confuse a jury;
 4) the court has dismissed all claims over which it has original jdx
Personal Jurisdiction Roadmap:

 A court must have PJ over a D in order to hear a case. A court will always have PJ over a P because they
chose to bring their claim to court. In most diversity cases, the federal courts can exercise PJ only to
the extent that it could be exercised by the court of the state in which it sits, unless Congress has
authorized broader jdx for this type of suit.
 If not in NY cite Pennoyer
o Judgment rendered in violation of due process is void in the rendering state and is not entitled
to full faith and credit elsewhere
 In NY Under CPLR 301, the NY courts are authorized to exercise PJ if they meet one of the four
traditional bases [apply facts of pattern to each base]
o Did D appear?
 D appears if they show up in court to defend the claim
 Special appearances do not count
 You appear to argue there is no PJ
o If D raises any defense in a S.A. that is not jdx, he waives his defense or
lack of PJ
 NY and NJ do not have special appearance rule
 Federal Court rejects special appearance rule
 You can raise other defenses without waiving the jdx
defense but you must raise PJ at the outset or you waive it
under Rule 12(h)(1)
 Limited Appearances are when you show up to fight merits w/o subjecting one’s self to
in personam jdx
o Did D consent?
 D consented if….(expressly or implicitly agreed to be subject to jdx in forum state)
 Express Consent:
o D appointed an agent for service of process (Szuchent)
o Forum Selection Clause
 Will be binding if they are reasonable and not fundamentally
unfair (Carnival)
 Will be enforced except in exceptional circumstances (Atlantic
Marine)
 Implied Consent:
o Motor vehicle act (Hess)
 However, party must be given proper notice or it is
unconstitutional
 (Wuchter v. Pizzutti) service made under NJ non-resident
motorists statute by leaving process with NJ sec of state= invalid
o Was D present?
 D was present if they were served with process in the forum state, whether
permanently or temporarily
 Summons cannot be served upon a non-resident who has been lured into the
jurisdiction through fraud (Wyman v. Newhouse)
 A summons or other civil processes cannot be served upon a non-resident who
voluntarily comes into the state for the sole purposes of attending litigation as a
suitor or witness (Cooper v. Wyman)
 Cannot be served when flying in plane over state (Grace v. MacArthur)
  If question presents an instance of a person being served when they were only the state
temporarily, discuss Burnham (4-4 SCOTUS split)
 Under Burnham, it is split as to whether presence alone is enough for a court to
exercise PJ
o Scalia: Four justices say that Pennoyer is still good law and therefore
being served is enough under the four traditional bases (transitory
presence is constitutional if it is supported by its history)
o Brennan: Other four justices say that the traditional bases from Pennoyer
are gone, and therefore for every case, the analysis for personal
jurisdiction must continue on through International Shoe (transitory
presence isn’t enough)
 Transitory presence isn’t enough; must also have minimum
contacts
 Therefore ALWAYS go on to analyze min. contacts

 Corporations
 D was present if they pass the “doing business” or “solicitation plus” tests (In NY)
o Did they do business?
 Problem because NY courts have never told us how much activity
is enough to qualify
 However, ACKNOWLEDGE that there is a test and identify
relevant facts that could meet it
o Did they solicit business (other business activity)
 That they solicit and do something else
o Is D domiciled in the forum state?
 D is domiciled in the state if it is their residence and have intention of returning when
you are absent
 Some states grant in personam jurisdiction over persons who are domiciled in the state
even if they are not physically in the state when served (Milliken v. Meyer)
 Quid pro quo: state where person is domiciled offers benefits and rewards to the
person and in return the state demands that person is subject to its PJ
 Relationship is not dissolved by mere absence from that state
 Corporations
 Have something comparable to a domicile
 The NY long arm statute will determine whether or not the NY courts want to hear the case
o The court will chose to hear the case if, under CPLR 302: (To use the long arm statute, COA has
to arise OUT OF THE ACTIVITES you are using to confer jdx)
 302(a)(1): The D transacts any business within the state or contract to supply goods or
services in the state
 apply facts
 302(a)(2): the D commits a tortious act within the state
 if the act which cause the injury occurred in NY
 [apply facts]
 302(a)(3): Commits tortious act without the state causing injury to the person or
property within the state
 use facts to say what act without the state was
 have to satisfy (i) or (ii)
 o (i) The D regularly does or solicits business or engages in any other
persistent course of conduct or derives substantial revenue from goods
used or consumed or services rendered in the state or
 Apply facts
o (ii) The D expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue form
interstate or international commerce
 HAS TO BE BOTH HERE ^^
 302(a)(4): The D owns, uses or possesses any real property in the state
 Dublin: a forum state has in personam jurisdiction over D where his property is
within the forum state and if it was the property that caused the injury to the P
o [apply facts]
o If the long arm statute does not apply then state does not want to hear the case
 Try 100 mile bulge
 Under 4(k)(1)(B) the court has PJ if party joined under Rule 14 or 19 and is served
within a judicial district of the US and not more than 100 miles from where the
summons was issued
 If 100 mile bulge doesn’t work either No PJ!
o If the long arm statute applies, go on to determine if PJ is constitutional
 Because the state wants to hear the case, according to the analysis under the long-arm
statute, it must now be determined whether the exercise of PJ is constitutional under
the Due Process Clause
 International Shoe Boxes- determine minimum contacts
o Under international shoe, a court may exercise PJ if the D has such
minimum contacts with the forum so that the jdx does not offend
traditional notions of fair play and substantial justice.
 If D has continuous and systematic activities in the state and P’s
complaint arises within those activities, a court has personal
jurisdiction (International Shoe).
 If D does not have continuous and systematic activities in a state
and a P’s complaint does not arise within those activities, a court
does not have personal jurisdiction (Helicopteros).
 If D has continuous and systematic activities in a state (essentially
at home) but P’s complaint doesn’t arise within those activities
(sometimes/maybe there will be PJ) but in this situation will be
general jurisdiction but not necessarily PJ (Goodyear).
 If a D does not have continuous and systematic activities in a state
but P’s complaint arises within activities in a state
(sometimes/maybe there will be PJ) Specific Jurisdiction because
jdx arises from the specific situation (Hess).
o General Jdx (must do first!)**
 Under Goodyear, the Court had general jdx over the D if his
contacts with the state are so systematic and continuous as to
render him essentially at home in the forum state (apply facts)
 Human essentially at home where they are domiciled
 Business essentially at home where they are incorporated
and where they have PPB (Goodyear and Daimler)
  Business may be essentially at home if they conduct
substantial amount of business in the state (small
percentage doesn’t make you at home, even if lots of
units)
 [apply facts]
 If D is not essentially at home:
 under Goodyear, D is not “essentially at home” and
therefore is not subject to general jdx
o Specific Jdx: does the cause of action arise out of D’s contacts with the
state?
 1) Did the injury occur in the forum state?
 The Court has specific jdx over the D if the injury occurred
in the forum state but the acts that gave rise to the injury
didn’t occur in the forum state. The D must have the
minimum contacts necessary to confer jdx (apply facts)
 2) Did the D purposefully direct activities toward the forum state
or purposefully avail itself conducting activities within the state?
(Burger King)
 Purposeful Availment: The D purposefully avails himself if
he voluntarily reached out and directed his activities to the
forum state in some way.
o An accidental or unilateral contact is not sufficient
to confer jdx as seen in Worldwide Volkswagen
o [apply facts]
o P cannot be the only link between the D and the
forum state for the D to be subject to PJ (Walden)
 Analyze Stream of Commerce: if there is a product
moving from state to state (the D has to put
something/product into the market with the knowledge
or expectation that it will be used in forum state; must be
deliberate act)
o There is no binding authority from SC on how to
determine PJ.
o Under Asahi there are two theories that determine
whether the court would have PJ.
 Under Brennan’s theory, there is a
sufficient contact for the court to exercise
PJ if the D put the product into the stream
of commerce and reasonably anticipated
that it would get to the forum state. This
would equate to purposeful availment.
 Under the O’Connor theory, there is
sufficient contact if the D could reasonably
anticipate that the product would get to the
forum PLUS the D intended to serve the
market in the particular state, such as
designing the product for the market in the
particular state, or advertising there.
 o Under Nicastro, four justices (Kennedy) adopted
the O’Connor test that D must have intended to
serve the state. Targeting would not be enough.
While two justices (Breyer) said that knowing the
product will end up in the stream of commerce in
the forum state is not enough to establish that the
D has purposefully availed, however depending on
the circumstances, if there was a regular flow or
regular course of sales in the state then that may
be enough for the D to purposefully avail himself.
The remaining three justices (Ginsburg) said that
the D’s targeting of the US can be used to confer PJ
in a state where the product causes injury.
 Analyze Fairness Factors: Now that it has been established
that the D has minimum contacts necessary for the court
to exercise PJ over them, it must also be established
whether it would be FAIR for the court to exercise
jurisdiction. ** Nicastro plurality rejects fairness factors
but the other justices don’t.
o An inconvenience for D and witnesses
 Under Burger King, the D has the burden to
show that the forum is so gravely
inconvenient that he is at a severe
disadvantage in the litigation
 Under Burger King, if there is a strong
showing that the exercise of jdx is fair, can
take jdx based on lesser showing of
purposeful availment
 [apply facts]
o The forum state’s interest
 it matters whether the forum state has an
interest in hearing the case. The state has
an interest in providing a forum for its
residents.
 State also has an interest in businesses in
their state (Calder v. Jones)
 [apply facts]
o P’s interest in obtaining convenient and effective
relief
 Ex; if P is injured and cannot travel
 Ex; if P is in NY and witnesses in NY
 Ex; if jurisdiction by necessity, a P cannot
get it anywhere else
o Efficient resolution of controversies
o Shared interests of the states in furthering
fundamental substantive social policies [apply
facts]
  Kulko: the court would not want to
discourage noncustodial parents from
visiting their children in distant state
 Wyman: Court says witnesses can’t be
served when appearing in court because we
don’t want to discourage witnesses from
showing up
 Foreseeability: Should the D reasonably anticipate being
haled into the state?
o According to Nicastro, foreseeability no longer
plays a role in determining PJ. However, in
Worldwide Volkswagen, foreseeability was limited
to whether it is foreseeable that the D could get
sued in the forum state rather than if the product
could just foreseeably end up in the forum state
o [apply facts]
o NY’s Exercise of Quasi in Rem
 Go through roadmap and at end say, “Could NY Constitutionally exercise in personam
jurisdiction?
 If yes, then could also exercise QIR (Greater includes the lesser)
 Gap between constitution and in personam= NY Courts can exercise Quasi in
Rem
o Other ways to get personal jurisdiction in federal courts
 100 Mile Bulge (see above)
 Rule 4(K)(1)(C) when authorized by a federal statute with broader jurisdiction
 Ex; bankruptcy (disregards minimum contacts)
 Rule 4(k)(2): nationwide contacts
 Typically when D is not a US citizen
 The D must be sued on a FQ and not subject to PJ in any state then a federal
court can still take jdx over the D if the D’s contacts with the nation as a whole
are enough to make jdx constitutional (ex; Asahi)
 However, since the International Shoe analysis applies to states, we don’t know
what would be constitutional under the 5th Amendment
The Erie Doctrine Roadmap:

 Road #1: Federal Rule of Civil Procedure (FRCP) v. State Law

o Is there a FRCP on point?
 To determine if there is a FRCP on point, determine if the FRCP actually applies.
Under Walker, we must give the rule its plain meaning by which is meant its
actual meaning, and not torturing it to avoid conflict with state law (Walker).
 However, in Gasperini and in the Shady Grove dissent, Ginsburg does not discuss
the “plain meaning” method. Instead, she says that the practice should be
interpreted with sensitivity to the state’s interest. Therefore, according to
Ginsburg, if the rule can be interpreted in such a way that avoids conflict with
the state law, that is how it should be interpreted, but the court rejected this
approach.
 If rule doesn’t apply, use state law.
 If it does apply, ask:
o If it applies, is the FRCP constitutional? Is it within Congress’s power?
 Next, determine whether it was within Congress’ power to create the FRCP. We
are told in Hanna, that Congress has the power under Article I, section 8 of the
Constitution to make courts and “to make laws which shall be necessary and
proper for carrying into execution the foregoing powers.” SCOTUS interprets this
to mean that Congress has the power to make rules governing the procedure of
the federal courts, as well as those rules that are partially substantive and
partially procedural (in the gray area).
 Therefore, the only rules that are not within Congress’s power to make are those
rules that are wholly substantive. Therefore, we must analyze whether this rule
that conflicts with the state law is wholly procedural, wholly substantive or a
combination of both substance and procedure in order to determine its
constitutionality.
 Although SCOTUS has never defined what constitutes a rule that is either
substantive or procedural, other commentators have tried to interpret what this
means. These definitions are useful in guiding analysis, however, we must bear
in mind that these are not provided by SCOTUS.
 The Sibbach case tells us: A FRCP is procedural if it really regulates
procedure
 Dean Ely says: A rule is procedural if it is designed to make process of
litigation a fair and efficient mechanism for the resolution of disputes.
 Professors Hart and Wexler say: a rule is substantive if it characteristically
and reasonably affects people’s conduct at the state of primary private
activity.
 After this analysis, are we in:
 Procedural- yes
 Substantive- no
 In gray area (in between)-yes
 If it is at least partially procedural, within Congress’s power. (“it is reasonable to
assume..”)
o Is the FRCP within the power of Congress to delegate to SCOTUS under 2072?
 Because Congress delegated to SCOTUS the power to create the FRCP we must
determine if SCOTUS had the power to create this FRCP.
 Under the Rules Enabling Act (28 USC 2072(a)) Congress delegated to SCOTUS
the power to make only wholly procedural rules: “The Supreme Court shall have
the power to prescribe general rules of practice and procedure…” but such rules
cannot “abridge, enlarge, or modify any substantive right” under the Rules
Enabling Act 2072(b).
 If it does abridge, enlarge or modify any substantive right, it is invalid
even though Congress enacted it because the SCOTUS did not have that
power!
 Burlington: All laws in conflict with such rules shall be of no further force or
effect after such rules have taken effect, however SCOTUS said in its dicta in
Burlington that a rule is still constitutional if it only “incidentally infringes”
upon a litigants substantive rights, so long as the infringement is reasonably
necessary to maintain the integrity of the rule. This evidence that SCOTUS may
have some power with regard to rules that are both substantive and procedural.
However, it is hard to determine what constitutes incidental infringement
because SCOTUS has never defined this.
 It is also worth noting that in Hanna, SCOTUS has said the presumption is
that the federal rules are within SCOTUS’s power because they are
drafted by procedural experts and are approved by both SCOTUS and
Congress.
 Shady Grove: Furthermore, under Shady Grove—which addressed what happens
if you have a FRCP that is procedural v. a substantive state law—four justices, led
by Scalia, said that because the rule is procedural and therefore within SCOTUS’s
power, the fact that it may infringe on a state substantive right should be
ignored. Their justification for this reasoning is that there is the potential to end
up with different rules in different states. Another four justices, led by Ginsburg,
say that rules that infringe on states rights are invalid and therefore should not
apply. Justice Stevens—the tie breaker—argued that if the rule is clearly
substantive or intertwined with state substantive right, the FRCP should not
apply. So that is 5 justices saying we do pay attention to state substantive
rights when the state right is clearly intertwined or substantive and we do not
apply FRCP. But if the rule is not clearly substantive or doesn’t infringe on state
substantive rights, we apply the FRCP.
 Pay attention to the state substantive law being displaced if clearly
substantive or intertwined—so if it is we pay attention to the state law, if
it is not, then federal law.
 However, if the rule is not clearly substantive or does not infringe on party’s
state substantive rights, the FRPC applies
 Tell really substantive= Sibbach “regulates procedure”
 May have to ask if the law is clearly substantive or infringing on states rights
 Now that it has been determined that the FRCP is valid, we can apply it. Next
ask:
o Is there a direct conflict between the FRCP and state law?
 If there is a direct conflict, the state law cannot be applied. The federal rule
preempts the state law (supremacy clause). Therefore, the FRCP applies.
  Only apply the state law if they don’t conflict
 If there is not a direct conflict
 Burlington Test: is there an implicit conflict? Is the federal rule intended
to control the issue leaving no room for the operation of the state law
o If implicit conflict
 Because there is an implicit conflict, we treat this like we
would a direct conflict, therefore the state rule does not
apply because it is preempted by the federal rule. So we
apply the FRCP.
o If no implicit conflict
 Because there is no conflict, neither implicit nor direct,
both the FRCP and the state law can apply
 Example in Burlington: Federal Law penalty for
frivolous appeals, state law for losing appeals—the
court said this was implicit
o Are the purposes co-extensive?
 If yes, let them both operate.
 Road 2: Federal Practice v. State Law
o There is a conflict with the state law because applying the federal law in this case may
lead to undesirable results.
o Is there a federal practice on point?
 If no, apply state law.
 If yes, ask:
o Does it conflict with state law?
 If yes, use Twin Aims:
 Twin Aims of Erie: First we look to the Twin Aims of Erie from Hanna, also
referred to in Gasperini.
o Forum Shopping
 If applying the federal law would cause Ps to take
advantage of the system and have their case heard in
federal court, then applying the federal rule promotes
forum shopping. Therefore, the court would apply the
state law.
 Apply facts.
o Inequitable administration of the laws
 If, due to the application of federal practice rather than
state law, out of state residents would be treated
differently from in state residents because out of state
residents will have access to the federal courts via
diversity jurisdiction, then this would lead to an
inequitable administration of the law. Because local
residents would be discriminated against if they have
access to a different set of rules than out of state
residents, we would apply the state law.
 [apply facts]
 if the answer to these is no, apply federal practice.
 If yes, state law is substantive and continue Even though these tests suggest
that state law should be applied, there is a chance that Byrd is still relevant
therefore, the analysis will continue under Byrd.
o Byrd Analysis: Reconciling with the Twin Aims
 Some argue that Byrd may have been overruled by Hanna, however, there is an
alternative view that Justice Ginsberg’s opinion in Gasperini provides evidence
that Byrd is still relevant. If you were to apply the Twin Aims test to Byrd, would
go with state law, but Byrd went with federal law!
 Three possibilities:
 One argument states that Byrd is still good law and that the court would
not distinguish a case that has been overruled. However, the opposition
to this argument claims that the court purposefully did not link their
conclusion to Byrd, because Byrd was not necessary to the outcome in
Gasperini.
 It is also possible that Byrd simply reached the right conclusion, not due
to the proper application of the Erie Doctrine, but because the 7th
Amendment guaranteed the right to a jury trial. If this is the case, then
the part of the opinion that pertains to Erie is merely dicta! And does not
 need to be considered when deciding whether to apply federal practice
or state law.
 The final possibility is that under Gasperini, Byrd retains only limited
validity. Therefore, according to this view, Byrd’s application is only
relevant if the court is choosing between applying state or federal law in
their entirety, and there is no possibility of applying aspects of both (it is
an all or nothing choice). So Byrd must have some ongoing validity or else
why distinguish a case that was overruled. However, could also argue
that what Gasperini said about Byrd was dicta, because once Gasperini
decided not to apply Byrd, it didn’t have to go on to decide whether it
was good law or not.
 [apply facts]
o After Byrd/Gasperini, if it is an all or nothing choice, apply the Byrd Balancing Test:
 The significance of substantive character of the state rule Is state’s
interest weak? TOGETHER WITH;
o If the state’s interest is reflected in other court opinions then it is
likely that the interest of the state is not weak.
 The likelihood of different outcomes Is applying one over the other
outcome determinative? AGAINST;
o If applying the federal practice will automatically determine the
outcome of the case then we must apply state law. That is unless
the interests of the federal court is greater.
 The importance of the federal policies behind the federal rule Do the
federal courts have a strong policy?
 If there is a consistent pattern of application of the federal
practice this evidences that the federal courts have a
strong policy
 Whether it is an essential characteristic of the Federal Court System
o The only other situation in which Byrd may be applicable is if the
federal practice deals with an essential characteristic of the
federal system. For example: is it something that is reflected in a
constitutional amendment, as was the case in Byrd.
o Taking into consideration both Byrd and the factors in Gasperini, it seems that the
federal practice applies even if the application of the twin aims test determines the
state law should be applied.
 Given that the twin aims test says that we should use the state law and the Byrd
analysis does not strongly make its case for applying federal practice, we should
apply state law. Therefore [apply facts].
o ****Don’t use Byrd Balancing if you can harmonize the state and federal rules by using
both
 If federal court has strong interest in applying their own procedure and that
state has a weak policy choice, and if the choice of a different rule is not clearly
outcome-determinative, use federal law.
 This is an all or nothing choice. Court must chose federal or state and
cannot apply both! If you can apply a little bit of both (Gasperini) then
Byrd wouldn’t apply.
  Road #3: Federal Statute v. State Law (**nearly always wins b/c of Supremacy Clause)
o Rules of Decision Act Exception
 The Rules of Decision Act does not apply when dealing with a federal statute.
o However, we must determine whether the statute concerns the point in dispute.
o Does it cover the point in dispute?
 If it is not on point 
 If the statute does not concern the point in dispute, then there is no
conflict and the federal statue can be applied
 If it is on point 
 If the statute concerns that point in dispute then we must continue on to
see whether the federal statute or state law will apply.
o Did Congress have the authority to enact the statute?
 Next, determine if Congress had the authority to enact the statute.
 Congress had the authority if it governs procedure in the federal courts or
if “while falling in the uncertain area between substantive and procedure,
they are naturally capable of classification as either” (Hanna).
o What we are really asking is whether it is substantive, procedural
or in the gray area.
o If it is procedural or in the gray area, it is valid and we apply. If
not, we don’t (Hanna)
 If this is the question, analyze what it means to be
substantive and procedural, use commentators
 Sibbah: procedural rule really has to govern
procedure (not clear)
 If this test is met, the federal statute must be applied because Congress
had the authority to enact the statute and valid federal statutes are the
“supreme law of the land” under the Supremacy Clause of the
Constitution.
o In Stewart v. Ricoh, the court found a state practice refusing to enforce forum selection
clauses in conflict with 1404(a). It held that the question of which federal court should
hear a particular case was “arguably procedural” and the court concluded that Congress
has the power to enact 1404, so the statute is valid.

Recognize Erie
1. Is federal directive (3) on point (state and federal conflict) and if it is valid (know valid if combine with
rules enabling act 2072)?
a. If yes HANNA ANALYSIS
b. If not on point and valid stick with ERIE