1L Substantive Law Questions (Get your BLL on ITT) Forum

[Lavitz]

Did anyone read Gasperini in Civ Pro? Am I right in ascertaining that it's sole purpose in the casebook is showing Byrd/Hanna in action by the courts and how reasonable parties can differ in applying these tests?

I think the point was to show that Byrd still applies, and that the state's interests and the outcome-determinative test modified by Hanna can still be weighed against federal countervailing considerations. I think Hanna kind of suggested you would just apply the twin aims test regardless of state or federal interests.

So: Byrd concerned the first clause of the 7th amendment, which made trial by jury an essential factor in the federal court system. Gasperini concerned the 2nd clause, which made re-examination an essential factor but which the Court held, like in Byrd, did not conflict directly with the state law. Unlike Byrd, the Court decided the state law would apply this time. It seems the state's interest was strong, applying the federal law would lead to at least inequitable administration if not forum-shopping, and the Court believed that federal policy could accommodate application of the state law without compromising the federal system, so I guess that means the federal considerations weren't that strong.

The dissent obviously thought that the federal considerations were strong because forcing federal judges to apply a different standard of review does disrupt the federal system and the judge-jury relationship. The dissent also thinks Rule 59 is broad enough to cover this issue, so the court should have only needed to ask whether that rule was valid rather than balancing federal considerations against state interests + the outcome-determinative test.

But we should find out in class tomorrow.

[Swimp]

Did anyone read Gasperini in Civ Pro? Am I right in ascertaining that it's sole purpose in the casebook is showing Byrd/Hanna in action by the courts and how reasonable parties can differ in applying these tests?

I think the point was to show that Byrd still applies, and that the state's interests and the outcome-determinative test modified by Hanna can still be weighed against federal countervailing considerations. I think Hanna kind of suggested you would just apply the twin aims test regardless of state or federal interests.

So: Byrd concerned the first clause of the 7th amendment, which made trial by jury an essential factor in the federal court system. Gasperini concerned the 2nd clause, which made re-examination an essential factor but which the Court held, like in Byrd, did not conflict directly with the state law. Unlike Byrd, the Court decided the state law would apply this time. It seems the state's interest was strong, applying the federal law would lead to at least inequitable administration if not forum-shopping, and the Court believed that federal policy could accommodate application of the state law without compromising the federal system, so I guess that means the federal considerations weren't that strong.

The dissent obviously thought that the federal considerations were strong because forcing federal judges to apply a different standard of review does disrupt the federal system and the judge-jury relationship. The dissent also thinks Rule 59 is broad enough to cover this issue, so the court should have only needed to ask whether that rule was valid rather than balancing federal considerations against state interests + the outcome-determinative test.

But we should find out in class tomorrow.

Note, though, that the outcome in Gasperini isn't exactly in accord w/ either the State or Federal rules. Ginsburg gives the power of review to the District Court, not the Circuit Court, to avoid violating the FRCP, but the NY rationale of allowing appellate courts to do this kind of review is that they have a good sense of the overall state of verdicts across all the trial courts, so they're positioned well to be able to evaluate whether a particular verdict departs so dramatically from the norm that it ought to be changed. District court judges don't have that perspective, so they're actually not all that well suited to do the kind of verdict review at issue in Gasperini.

What the court is trying to do in Gasperini is sort of compromise between the Fed interest and the State interest to preserve as much of both as possible, which is either a laudable goal or a misguided bastardization of both rules, yielding a standard that neither the state nor the Fed wanted.

[Lavitz]

Note, though, that the outcome in Gasperini isn't exactly in accord w/ either the State or Federal rules. Ginsburg gives the power of review to the District Court, not the Circuit Court, to avoid violating the FRCP, but the NY rationale of allowing appellate courts to do this kind of review is that they have a good sense of the overall state of verdicts across all the trial courts, so they're positioned well to be able to evaluate whether a particular verdict departs so dramatically from the norm that it ought to be changed. District court judges don't have that perspective, so they're actually not all that well suited to do the kind of verdict review at issue in Gasperini.

What the court is trying to do in Gasperini is sort of compromise between the Fed interest and the State interest to preserve as much of both as possible, which is either a laudable goal or a misguided bastardization of both rules, yielding a standard that neither the state nor the Fed wanted.

Thanks. Stuck that at the top of my notes.

[BPLawl]

TYBLavitz & Swimp

[First Offense]

In restitution, is the K price limiting or not? Or only in certain circumstances?

tyia

Edit: Is the K price the upper limit for a Breaching Plaintiff but not a limit for a non-breaching plaintiff?

I believe it depends. My notes say that some courts use the K as the upper limit for restitution, while others don't.

[sf_39]

So can someone dumb down Erie for me and Byrd/Hanna?

I'll take a shot at this. Someone correct me if I'm wrong or just didn't explain it very well.

Erie: There is no federal common law, so federal courts sitting in diversity jurisdiction (not deciding a matter of federal law), must apply the state's substantive laws, whether decided by the state legislature or the state's highest court.

Klaxon: Which state's substantive laws do you apply? Must use choice-of-law rules of state in which federal court sits. Federal Court located in NY, must look to NY state's choice-of-law rules. If you were suing in NY state court, would state court apply substantive laws of the place where the wrong occurred (may be another state) or of the forum state (NY)? That determines which law federal court will use.

York: Established outcome-determinative test. Outcome should be same in federal court as if it were brought in state court. So if applying federal procedural practice would make case come out differently than applying state's rule, federal court must apply state's procedural rule.

Byrd: When issue is one of procedure and is not "bound up" with state-granted substantive rights, weigh the outcome-determinative test and state's interests against federal countervailing considerations. Example: If important federal policies underlie the federal practice, the state's interests are not that great and it's iffy whether the outcome would actually be different after applying the federal practice, follow federal practice. If matter is one of pure substance or one of procedure bound up with substantive rights, defer to state's law.

Hana: None of that ever meant to apply to Federal Rules of Civil Procedure, only "federal judicial practices." If there is a conflict between FRCP and state rule, federal court will apply FRCP unless rule fails the Sibbach test: as long as Congress had constitutional authority to make rule, and the authority was granted to the Court in the Rules Enabling Act, it applies. The rule would fail this test if it affected a substantive right but as you find in Sibbach, the Court uses a broad definition of "procedural," so Congress can constitutionally mandate any rule that can rationally be characterized as procedural. So a federal court would have to be convinced that Congress, the Supreme Court, and the Advisory Committee were all wrong when they adopted the rule.
If the conflict is just between state rule and matter of federal judicial practice, you now apply the twin aims of Erie doctrine. Twin aims of Erie were to discourage forum-shopping and avoid inequitable administration of the laws. So ask whether ignoring the state's rule would lead to either the plaintiff choosing to sue in a different forum or giving the plaintiff who sues in federal court in diversity an advantage over a plaintiff suing in state court. If so, apply the state rule. If neither, apply federal practice.

Late to reply here but thank you very much for this. It aligns pretty well with my jumbled up confused class notes and much clearer!

Here's my attempt to try and summarize the current day Erie test. Kind of my "rule" portion if I'm doing it on an exam. Tell me if I'm off anywhere. I'm sure there's plenty of 1Ls who need help in this area too :

When determining which law to apply, we first look for a federal rule that is on point, valid and constitutional. The federal rule is on point if it deals with the same event as the state law and deals with procedure. It is valid if it does not abridge, modify or enlarge a substantive right. If there is a federal rule that is on point and valid, it governs under the supremacy clause.

If a federal rule is not on point but is one of procedure/manner and mode we assess the claim to see if it is outcome determinative and if it would fit under the twin evils of Erie which were the inequitable administration of the law or encouraging forum shopping. Under Erie, if the law is outcome determinative and would fit under one of the twin evils, then the state law applies unless there is a countervailing federal interest. Under Byrd, we must balance the interests of the state and any countervailing federal interests.

If the state law is one that creates rights and obligations or are bound up in them, follow the state law.

[Dolphine]

Can someone explain to me how excusing a condition based on estoppel works? And the difference between that and a waiver?

[JVK]

Late to reply here but thank you very much for this. It aligns pretty well with my jumbled up confused class notes and much clearer!

Here's my attempt to try and summarize the current day Erie test. Kind of my "rule" portion if I'm doing it on an exam. Tell me if I'm off anywhere. I'm sure there's plenty of 1Ls who need help in this area too :

When determining which law to apply, we first look for a federal rule that is on point, valid and constitutional. The federal rule is on point if it deals with the same event as the state law and deals with procedure. It is valid if it does not abridge, modify or enlarge a substantive right. If there is a federal rule that is on point and valid, it governs under the supremacy clause. Not quite - this is still unclear, sadly, haha. Stevens agrees with you, at least. For Scalia (per his Shady Grove opinion, which commanded a plurality), the Federal Rule is valid so long as it's procedural, period. You don't have to check if it "abridges, modifies or enlarges" a substantive right per the Rules Enabling Act. More than that, he suggests that the entire FRCP is procedural by nature - the "Federal Rules of Civil Procedure" - so if a Rule's on point and there's a direct conflict, it's good. Stevens' concurrence in Shady Grove suggests that a Federal Rule might not be procedural, and if it was it'd follow the test you suggested.

If a federal rule is not on point but is one of procedure/manner and mode we assess the claim to see if it is outcome determinative and if it would fit under the twin evils of Erie which were the inequitable administration of the law or encouraging forum shopping. Under Erie, if the law is outcome determinative and would fit under one of the twin evils, then the state law applies unless there is a countervailing federal interest. Under Byrd, we must balance the interests of the state and any countervailing federal interests. Byrd's a little more complicated than that. It's not a "countervailing" federal interest where Byrd fits in, but rather an "essential" federal interest. I'm not sure if Gasperini's in your casebook, but if it is Ginsberg applies Byrd in that opinion without mentioning a balancing test. It's not clear if she's abandoning a balancing test if an "essential federal characteristic" has been determined (where federal would just govern so long as that essential federal characteristic exists) or if she just forgets to mention the balancing test, but you might argue either way on your exam.

If the state law is one that creates rights and obligations or are bound up in them, follow the state law.

Put a little feedback in in bold above. You got most of it!

The trickier parts of Erie, more than the process, appear to be determining if there really is a direct conflict or if whether something's procedural or substantive. It's worth slipping in a little case law on whether or not the direct conflict exists.

It might also be worth mentioning that Erie doesn't just apply to state law conflicts with the FRCP - definitely outline what happens if there's a conflict with state law and a federal "practice," or between state law and a federal statute, etc.

[sf_39]

If the state law is one that creates rights and obligations or are bound up in them, follow the state law.

Put a little feedback in in bold above. You got most of it!

The trickier parts of Erie, more than the process, appear to be determining if there really is a direct conflict or if whether something's procedural or substantive. It's worth slipping in a little case law on whether or not the direct conflict exists.

It might also be worth mentioning that Erie doesn't just apply to state law conflicts with the FRCP - definitely outline what happens if there's a conflict with state law and a federal "practice," or between state law and a federal statute, etc.

Thanks for reply. Think this may be one of those "your professor may vary" things. We didn't discuss any of the 2 cases you brought up and my prof pretty much yelled "COUNTERVAILING FEDERAL INTEREST" at us 10 times for doing a Byrd analysis. The case law tidbit makes sense though.

[Br3v]

Can anyone just like, explain the steps of the parol evidence rule to me?

I just don't know where everything goes. Complete/partial intergration. Is there an ambiguity (patent or latent). It's just a blur to me.

[lhanvt13]

Late to reply here but thank you very much for this. It aligns pretty well with my jumbled up confused class notes and much clearer!

Here's my attempt to try and summarize the current day Erie test. Kind of my "rule" portion if I'm doing it on an exam. Tell me if I'm off anywhere. I'm sure there's plenty of 1Ls who need help in this area too :

When determining which law to apply, we first look for a federal rule that is on point, valid and constitutional. The federal rule is on point if it deals with the same event as the state law and deals with procedure. It is valid if it does not abridge, modify or enlarge a substantive right. If there is a federal rule that is on point and valid, it governs under the supremacy clause. Not quite - this is still unclear, sadly, haha. Stevens agrees with you, at least. For Scalia (per his Shady Grove opinion, which commanded a plurality), the Federal Rule is valid so long as it's procedural, period. You don't have to check if it "abridges, modifies or enlarges" a substantive right per the Rules Enabling Act. More than that, he suggests that the entire FRCP is procedural by nature - the "Federal Rules of Civil Procedure" - so if a Rule's on point and there's a direct conflict, it's good. Stevens' concurrence in Shady Grove suggests that a Federal Rule might not be procedural, and if it was it'd follow the test you suggested.

If a federal rule is not on point but is one of procedure/manner and mode we assess the claim to see if it is outcome determinative and if it would fit under the twin evils of Erie which were the inequitable administration of the law or encouraging forum shopping. Under Erie, if the law is outcome determinative and would fit under one of the twin evils, then the state law applies unless there is a countervailing federal interest. Under Byrd, we must balance the interests of the state and any countervailing federal interests. Byrd's a little more complicated than that. It's not a "countervailing" federal interest where Byrd fits in, but rather an "essential" federal interest. I'm not sure if Gasperini's in your casebook, but if it is Ginsberg applies Byrd in that opinion without mentioning a balancing test. It's not clear if she's abandoning a balancing test if an "essential federal characteristic" has been determined (where federal would just govern so long as that essential federal characteristic exists) or if she just forgets to mention the balancing test, but you might argue either way on your exam.

If the state law is one that creates rights and obligations or are bound up in them, follow the state law.

Put a little feedback in in bold above. You got most of it!

The trickier parts of Erie, more than the process, appear to be determining if there really is a direct conflict or if whether something's procedural or substantive. It's worth slipping in a little case law on whether or not the direct conflict exists.

It might also be worth mentioning that Erie doesn't just apply to state law conflicts with the FRCP - definitely outline what happens if there's a conflict with state law and a federal "practice," or between state law and a federal statute, etc.

doesn't FRCP and statute start with Hanna and else Erie?? might be wrong; outlined it a while ago but fixing all the sections as I make my condensed outline.

[lhanvt13]

Can anyone just like, explain the steps of the parol evidence rule to me?

I just don't know where everything goes. Complete/partial intergration. Is there an ambiguity (patent or latent). It's just a blur to me.

haven't covered it but I hear Farnsworth is good at explaining parol ev.

[AllDangle]

Personal Jurisdiction question that is bugging me and can't wait until Monday. If I file suit against a D and join an additional, unrelated claim per Rule 18, do I need a separate basis for personal jurisdiction over that claim? You can think of a situation where if that joined claim was filed separately the court wouldn't have PJ over it. I know supplemental jurisdiction will cover subject matter (allow a state law claim to be joined to a federal claim and he heard in federal court), but I can't seem to figure out the PJ aspect.

[BigZuck]

Personal Jurisdiction question that is bugging me and can't wait until Monday. If I file suit against a D and join an additional, unrelated claim per Rule 18, do I need a separate basis for personal jurisdiction over that claim? You can think of a situation where if that joined claim was filed separately the court wouldn't have PJ over it. I know supplemental jurisdiction will cover subject matter (allow a state law claim to be joined to a federal claim and he heard in federal court), but I can't seem to figure out the PJ aspect.

Can you give us a hypo that would explain what you mean?

[AllDangle]

Personal Jurisdiction question that is bugging me and can't wait until Monday. If I file suit against a D and join an additional, unrelated claim per Rule 18, do I need a separate basis for personal jurisdiction over that claim? You can think of a situation where if that joined claim was filed separately the court wouldn't have PJ over it. I know supplemental jurisdiction will cover subject matter (allow a state law claim to be joined to a federal claim and he heard in federal court), but I can't seem to figure out the PJ aspect.

Can you give us a hypo that would explain what you mean?

A (Florida) sues B (Georgia) in federal court in North Carolina for a breach of a construction contract that took place in the state. While in NC federal court for the contract case, A joins a claim under Rule 18 for an unrelated car accident between the two that occurred in Alabama. NC would not have personal jurisdiction over this Alabama claim if it was filed separately in NC. Do they need a separate basis for PJ in order the hear the joined claim?

[BigZuck]

Personal Jurisdiction question that is bugging me and can't wait until Monday. If I file suit against a D and join an additional, unrelated claim per Rule 18, do I need a separate basis for personal jurisdiction over that claim? You can think of a situation where if that joined claim was filed separately the court wouldn't have PJ over it. I know supplemental jurisdiction will cover subject matter (allow a state law claim to be joined to a federal claim and he heard in federal court), but I can't seem to figure out the PJ aspect.

Can you give us a hypo that would explain what you mean?

A (Florida) sues B (Georgia) in federal court in North Carolina for a breach of a construction contract that took place in the state. While in NC federal court for the contract case, A joins a claim under Rule 18 for an unrelated car accident between the two that occurred in Alabama. NC would not have personal jurisdiction over this Alabama claim if it was filed separately in NC. Do they need a separate basis for PJ in order the hear the joined claim?

I don't think they could add the Alabama claim. But someone smarter than me might weigh in and correct me

[Br3v]

Personal Jurisdiction question that is bugging me and can't wait until Monday. If I file suit against a D and join an additional, unrelated claim per Rule 18, do I need a separate basis for personal jurisdiction over that claim? You can think of a situation where if that joined claim was filed separately the court wouldn't have PJ over it. I know supplemental jurisdiction will cover subject matter (allow a state law claim to be joined to a federal claim and he heard in federal court), but I can't seem to figure out the PJ aspect.

Can you give us a hypo that would explain what you mean?

A (Florida) sues B (Georgia) in federal court in North Carolina for a breach of a construction contract that took place in the state. While in NC federal court for the contract case, A joins a claim under Rule 18 for an unrelated car accident between the two that occurred in Alabama. NC would not have personal jurisdiction over this Alabama claim if it was filed separately in NC. Do they need a separate basis for PJ in order the hear the joined claim?

Prefaced as always with "I think":

There is no PJ over claims, just parties. If there is valid PJ over B already then the only reason you would worry about PJ is if you add new party. For adding a claim just worry about SMJ and venue.

[AllDangle]

Personal Jurisdiction question that is bugging me and can't wait until Monday. If I file suit against a D and join an additional, unrelated claim per Rule 18, do I need a separate basis for personal jurisdiction over that claim? You can think of a situation where if that joined claim was filed separately the court wouldn't have PJ over it. I know supplemental jurisdiction will cover subject matter (allow a state law claim to be joined to a federal claim and he heard in federal court), but I can't seem to figure out the PJ aspect.

Can you give us a hypo that would explain what you mean?

A (Florida) sues B (Georgia) in federal court in North Carolina for a breach of a construction contract that took place in the state. While in NC federal court for the contract case, A joins a claim under Rule 18 for an unrelated car accident between the two that occurred in Alabama. NC would not have personal jurisdiction over this Alabama claim if it was filed separately in NC. Do they need a separate basis for PJ in order the hear the joined claim?

Prefaced as always with "I think":

There is no PJ over claims, just parties. If there is valid PJ over B already then the only reason you would worry about PJ is if you add new party. For adding a claim just worry about SMJ and venue.

I thought about this also, but since the NC case is specific PJ case the court only had PJ over him for that claim. Even though PJ is over parties, it is possible that it is only valid over that party for that specific claim. Obviously it wouldn't be hard to serve him in NC for the Alabama accident since he will already be in the state defending the other suit.

[huell]

Can anyone just like, explain the steps of the parol evidence rule to me?

I just don't know where everything goes. Complete/partial intergration. Is there an ambiguity (patent or latent). It's just a blur to me.

Okay, I'll bite on this one and see if I can plot out a decent answer for you.

When parties want to introduce oral evidence that does not exist in a contract, they must jump through the hoop of the PER. Before even worrying about PER, there are five big exceptions to using it, they are:
1. To show fraud/duress.
2. To demonstrate no consideration.
3. To interpret a term of the contract.
4. To demonstrate later negotiations.
5. To demonstrate that the terms of acceptance were not performed.
These five exceptions are easier to understand when you realize (1, 2, and 5) are permitted because they are to demonstrate there was no contract to begin with. (3) is not to introduce a term, but to better understand it. And (4) is a completely different world altogether because PER only applies to information that leads up to the final assent to terms.

You must determine whether or not a contract is integrated, there are three clear types of integration:
1. Complete - No terms permitted.
2. Partial - Some terms may be permitted.
3. None - All terms permitted.

Obviously, defining integration becomes an issue then. There is no clear answer to determine integration, so it varies from jurisdiction to jurisdiction, but as I was taught it there are three schools of thought on a broad spectrum of integration ranging from ridiculously strict to ridiculously liberal:
1. Williston (STRICT) - If there is a merger clause, then no PE is admitted. If there is no merger clause, then the completeness of the contract is looked at, if the contract is incomplete in regards to the terms that a party is trying to introduce, those terms may come in. Clearly the issue with this approach is how one can determine whether or not a contract included all the terms that parties wanted to be included.
2. Corbin (LIBERAL) - Basically all intentions of the parties surrounding the creation of the contract must be introduced in order to determine what evidence should or should not be allowed, so there are few bars to pre-K evidence under this theory.
3. Wigmore (Splits the difference) - It was taught to me in two parts. First, if a contract contains terms on a subject, no new evidence may be introduced. Second, if a term is such that it would naturally have NOT been included in the contract, PE may be admitted.

Under all of these theories and PE in general, terms introduced may only SUPPLEMENT, not CONTRADICT the contract. To determine supplementation vs. contradiction, there are two schools of thought:
1. Express Contradiction: this school of thought holds that no evidence contradicts the contract at hand unless it expressly states concepts that clearly contradict existing contract terms. It is very friendly to PE.
2. Reasonable Disharmony: Any terms deemed to be in disharmony with the contract may not be admitted under the PER due to the "contradiction" of the contract.

I have more about interpretation if you think this sounds similar to the way you've been taught the issues. I think the wishy-washiness of the entire subject makes it the most confusing subject of what is overall a fairly understandable and concrete course.

The exciting thing about it is that it seems to provide a lot of forks for analysis if it is being tested.

[Frank Grimes]

Can anyone just like, explain the steps of the parol evidence rule to me?

I just don't know where everything goes. Complete/partial intergration. Is there an ambiguity (patent or latent). It's just a blur to me.

haven't covered it but I hear Farnsworth is good at explaining parol ev.

Charts are great for understanding the P.E.R.
If you have time you may consider making one yourself, but a quick google search will give you some good results. This is one I found pretty easily but as a heads up I haven't looked at it too closely...
http://www.law2.byu.edu/lawreview/archi ... /2/gor.pdf

I hope this helps [if anything is wrong or omitted on here please feel free to correct]....

Purpose of P.E.R.
A party will try to bar the introduction of "extrinsic evidence" in a K dispute by using the Parol Evidence Rule. KEEP IN MIND: P.E.R. is slightly different for the Restatements and UCC. I am only going to talk about restatements approach, but be sure to look at the wording of UCC §2-202 closely (there is a lot crammed in there) because there are a few, yet significant differences between the two.

So talking about Restatements approach now....

There are a few things that are worth knocking out of the way before even talking about P.E.R./integration/degree of integration.
1) P.E.R. NEVER says anything about SUBSEQUENT (after the fact) agreements. Therefore, all evidence (written and oral) of subsequent agreements is admissible. Keep this in mind, anything that comes after the fact is OK, no matter what the purpose of the writing is (contradict, explain, supplement).
2) P.E.R. NEVER says anything about EXPLANATORY evidence. Therefore, if the purpose of the evidence is merely to "explain" the terms of the K, it is always admissible. (note: on an exam, you will need to argue both ways of course).

So 2 things to keep in mind, subsequent evidence is always admissible, and explanatory evidence is always admissible. Moving on....


Step 1- Court must determine if written memorandum is "integrated" or not.
In order to raise the P.E.R. there must be a written memorandum (131). No written memorandum, no P.E.R. (note: keep in mind composite document rule - §132). Courts will then determine if the writing is integrated ("a final expression of one ore more terms of the agreement" - 209(1)) or not. There are 2 approaches; 1) traditional "four corners" approach that says that courts should only look at the writing itself to determine whether or not it is "integrated" while 2) the Restatements 214(1) approach that says that extrinsic evidence is ALWAYS admissible in determining whether or not the writing is integrated. If determined that the writing is not integrated, PER does not apply (evidence will be admissible). If the writing is integrated, move on to step 2.

Step 2) Court must determine whether writing is "completely" or "partially" integrated.
A completely integrated writing is one that is (210) a "complete and exclusive statement of [ALL] the terms of the agreement''. (note: it doesn't say "all", but this is what it means). Where as a partial integration is merely one that is "final expression of one or more terms of an agreement" (integrated), however, it does not contain ALL the terms of the agreement. Again, the traditional approach to determine whether an integrated writing is "complete" or "partial" is the four corners approach (see above). The restatements 214(b) say that all evidence is admissible in determining the degree of integration.

A quick note concerning a merger clause (a statement that basically says, "this is a complete and final writing containing all the terms...."). Under traditional four corners approach, courts typically deem the writing completely integrated based on this. Under the restatements, a merger clause alone will not be enough to find a writing completely integrated and evidence may still be admissible to determine the degree of integration (but the merger clause is clearly strong evidence that the parties meant for the writing to be a complete and exclusive statement of the terms, especially if signed).

Step 3) What kind of information is barred by the P.E.R.?

3 questions to ask concerning the extrinsic evidence...
1) Timing? (Prior, Contemporaneous, or Subsequent?)
2) Written or Oral? (This is IRRELEVANT for Restatements but makes a difference under UCC)
3) Purpose of evidence? (explanatory, supplementary, or contradictory)

As stated above, subsequent evidence and explanatory evidence = never barred by P.E.R.
Also, restatements does not differentiate between timing whether prior/contemporaneous (again, look at UCC language b/c it does).

Therefore we have.... P/C supplementary and P/C contradictory evidence.

If the writing is integrated (doesn't matter if partial or fully), you can not contradict the terms contained IN THE WRITING under the P.E.R. (think about this for second... by saying a writing is integrated, the court has already determined that the term(s) is/are a final expression of the parties. Therefore prior/cont. evidence that contradicts the terms w/in the writing shouldn't be allowed).

The difference between partial/complete integration is for P/C supplementary evidence. A partially integrated writing may be supplemented by p/c evidence. If you have a complete integration you can not supplement the terms contained in the writing. (again, think about this... if a writing is only partially integrated, courts have determined that not ALL of the terms of the agreement are contained, therefore it makes sense that a party would be allowed to introduce evidence of supplementary terms. Whereas a complete integration was deemed by the court to be a complete and exclusive statement of [ALL] the terms of the agreement. Therefore, it wouldn't make sense for a court to say "this writing is a complete and final expression of ALL the terms of the agreement, but you can also introduce evidence of supplementary terms", so supplementary evidence is barred by the P.E.R. for complete integration but not for partially integrated writings.

Also, keep in mind 214(d) - evidence meant to establish illegality, fraud, cures, mistake, lack of consideration, or other invalidating cause is always admissible.

Good luck and I hope this helps.
God help us all on Civ Pro.

[cynthia rose]

A (Florida) sues B (Georgia) in federal court in North Carolina for a breach of a construction contract that took place in the state. While in NC federal court for the contract case, A joins a claim under Rule 18 for an unrelated car accident between the two that occurred in Alabama. NC would not have personal jurisdiction over this Alabama claim if it was filed separately in NC. Do they need a separate basis for PJ in order the hear the joined claim?

Prefaced as always with "I think":

There is no PJ over claims, just parties. If there is valid PJ over B already then the only reason you would worry about PJ is if you add new party. For adding a claim just worry about SMJ and venue.

I thought about this also, but since the NC case is specific PJ case the court only had PJ over him for that claim. Even though PJ is over parties, it is possible that it is only valid over that party for that specific claim. Obviously it wouldn't be hard to serve him in NC for the Alabama accident since he will already be in the state defending the other suit.

preface with "I think"[2]

This makes me want to email my professor now, but I already emailed her two questions this morning that she hasn't responded to yet and she probably won't look at them until Monday as well. But I think what you said in this last comment hits the nail on the head - the pj is specific, and having a case already underway in NC is not sufficient grounds for general jurisdiction. (blahblah something about due process pertaining to all individual claims and NC reaching past the long arm statute if they try to assert pj for the second claim, but I'm not good enough to articulate it so moving on) What SHOULD happen is that the the court, as soon as the plaintiff tries to join it, immediately kicks the claim out or transfers it to one of the proper jurisdictions (probably AL). Just thought about the fact that you didn't specify if this was taking place in federal or state court. You can only transfer cases in federal district courts b/c state courts have separate sovereignty, so keep that in mind, but I will proceed as if this was in federal court reading is fundamental you totally said federal.

Anyway, what is probably more likely to happen is that the court doesn't respond to that joinder right away, and the defendant should file a 12(b)(2) for the second claim to make sure the court's attention is drawn to it. The court will recognize the lack of pj then and transfer it. If the defendant does not move for a 12(b)(2) in the proper amount of time and/or he does something stupid like give a non-12(b) affirmative defense to the claim, then he's waived his right to object to pj and it's entirely at the court's discretion to keep it or transfer it.

This answer maybe - probably - eh, definitely - looks like I'm overthinking it to anyone else (someone make that edited 4 times line go away!), but if this were an open-ended essay question this is pretty much the kind of response my professor would expect, except with more analysis and case/rule citation and minus the first sentence about what 'should' happen.

[sublime]

..

[hangnail]

Civ Pro Question here:

Under FRCP, if you answer a complaint with only 12(b) affirmative defenses, I assume you're not waiving all other defenses, right? They would just come up in your second response?

[cynthia rose]

Civ Pro Question here:

Under FRCP, if you answer a complaint with only 12(b) affirmative defenses, I assume you're not waiving all other defenses, right? They would just come up in your second response?

Correct.

[cynthia rose]

I'm starting to question whether my above answer to AllDangle is correct at all, or if it would be permissible to 'tag' the defendant in NC while he's at the courthouse for the first claim. That seems awfully unfair, and I could have sworn I remember my professor saying something about being in court not qualifying a person for general jurisdiction, but I don't know if that extended to the 'tag, you're it' rule as well and can't find it in my outline or notes. Ugh, all that typing only to tell you that you may not want to waste your time on it.