Diversity of Citizenship; Choice of Law, Pro Se Fee Recovery

[Paul84]

What is the name of your state (only U.S. law)? New York, Federal

To paraphrase Wikipedia: Having a U.S. citizen domiciled outside the U.S. and acting as a party completely destroys diversity jurisdiction, whereby the court must apply the law of the state in which the court is sitting (according to the so-called "Erie doctrine"). Without diversity jurisdiction, when laws conflict, under the choice of law, the court applies the law of the state that has the closest nexus to the case for substantive matters and "lex fori", the laws of the court's forum, for procedural ones.

For one and possibly two causes of action for which I am acting pro se, conflicting laws mean that the overseas law should apply for the substantive issues. The overseas forum also allows pro se's to recover up to 2/3 of a lawyer's hourly fee for the pro se's time (unlike the U.S. where pro-se litigants get nothing for their time).

Question: Could I argue that on this or these particular causes of action, acting pro se should allow me to recover for my time if I win on that/those particular claim(s)? Or would U.S. courts always consider recovery of legal fees as procedural rather than substantive issues?

 

[Mass_Shyster]

To paraphrase Wikipedia

This has to be the best legal reference I've ever seen on this forum.

 

[OHRoadwarrior]

Until they counter with the Calvo Doctrine, you might last a few minutes.

 

[Paul84]

Calvo Doctrine; supplemental jurisdiction

Until they counter with the Calvo Doctrine, you might last a few minutes.

Thanks. However, the relevant claim(s) involve a contract and tort(s) but have no connection to either investments or concession agreements, to which the Calvo Doctrine pertains (according to the authoritative Wiki ;-) ).

Also, apart from other reasons, I put forth the principle of supplemental jurisdiction as one rationale to argue that the NY federal court should hear all the claims. In my case, for one cause of action, U.S. federal law clearly extends to violations overseas; in a second, it depends on the facts (which, I say, support it); and in a third, courts of first instance have split, with no appellate rulings (yet).

Another Question: Can supplemental jurisdiction alone persuade a court to hear an entire case together rather than saying, "We will exercise jurisdiction only on these matters" even when the foreign nation (and only alternative forum) has an advanced legal system but no laws concerning the matter?

 

[Sloop John D]

I believe most states consider attorneys fees to be substantive rather than procedural with regard to choice of law issues.

 

[Paul84]

I believe most states consider attorneys fees to be substantive rather than procedural with regard to choice of law issues.

Thanks. Based on the few cases I've looked at recently, I think you're right.

 

[tranquility]

Civil procedure is difficult, even with those purportedly "trained" in the law. A pro se using Wikipedia as a reference has no possibility of successfully making substantive jurisdictional arguments with the goal of getting jurisdictional benefit. If you are serious and not some rube who is smart and is going to teach these guys a thing or two, get something like:
http://legalsolutions.thomsonreuters.com/law-products/Practice-Materials/Federal-Civil-Procedure-Before-TrialNational-Edition-The-Rutter-Group-Practice-Guide/p/100000880

 

[You Are Guilty]

For some reason, I want to say this OP is in NYC, which, if true, means he can go down to any Supreme Court and use their (free) law library. While they may not have the most recent edition of every hornbook, they certainly have better materials available than a Wiki page.

 

[Paul84]

Civil procedure is difficult, even with those purportedly "trained" in the law. A pro se using Wikipedia as a reference has no possibility of successfully making substantive jurisdictional arguments with the goal of getting jurisdictional benefit. If you are serious and not some rube who is smart and is going to teach these guys a thing or two, get something like:
http://legalsolutions.thomsonreuters.com/law-products/Practice-Materials/Federal-Civil-Procedure-Before-TrialNational-Edition-The-Rutter-Group-Practice-Guide/p/100000880

Thanks for the source, although I much prefer electronic ones that I can easily search and retrieve. I use Wiki to get background on new terms and then do follow-up for cases via Google Scholar. A few weeks ago, I was able to get http://www.amazon.com/Fundamentals-Trial-Techniques-Thomas-Mauet/dp/0316551058 from my library; Mauet's other book on pretrial techniques was out of print, but even the one on trial technique was largely repetitive; it did, however, have a few new points I hadn't come across on jury selection.

Question: By the way, when submitting the reply brief, the defendants' counsel asked for oral argument. Is it correct to assume that the magistrate would first have read through the (copious) papers before hearing oral argument - ie that, if granted, such a procedure would not occur for months? Also, would a magistrate ordinarily provide a fair amount of notice or ask parties to agree in advance on a few selected dates for the judge to choose from?

 

[Sloop John D]

Civil procedure is difficult, even with those purportedly "trained" in the law.

This is completely accurate, especially if the procedural rules have been interpreted frequently by the courts. Anytime a procedural issue, like choice of law, makes it to the US Supreme Court, the justices are going to make it as confusing as possible. Experts in Con Law spend their lives arguing about the true meaning of the Erie case.

However, because of the huge difference in the way the US handles attorneys fees compared to most other nations, it is highly likely that the issue of whether or not attorneys fees are procedural law or substantive law is already well settled.

As others have already pointed out, a law library will probably have many good references for your issue. Ask one of the librarians if they can teach you how to use West's keycite system. It's not the hard to use and it will help you navigate cases quickly to find those that are relevant to this issue.

 

[Sloop John D]

Thanks for the source, although I much prefer electronic ones that I can easily search and retrieve.

Cases at a law library are organized according to the key cite system or head note system, which is actually a very easy and handy way to look up case law. Ask any librarian at any law library and they can probably teach you how to use it.

Question: By the way, when submitting the reply brief, the defendants' counsel asked for oral argument. Is it correct to assume that the magistrate would first have read through the (copious) papers before hearing oral argument - ie that, if granted, such a procedure would not occur for months? Also, would a magistrate ordinarily provide a fair amount of notice or ask parties to agree in advance on a few selected dates for the judge to choose from?

Hopefully the judge will have read everything, but it's not guaranteed. I've had cases where the judge decided the matter based on the briefs alone and declined to allow a hearing. I've also had cases where the opposing counsel submitted nearly 1,000 pages of argument. I highly doubt the judge read any of it.

I don't know NY procedure, but I would guess the oral arguments will be scheduled about 1 to 2 months from the time the briefs are submitted, depending on what type of motion it is. It is likely the court will schedule the hearing at a time that is convenient for the judge. If you can't make it, have a good reason prepared and let the judge know as early as possible and the court will reschedule it.

 

[Paul84]

This is completely accurate, especially if the procedural rules have been interpreted frequently by the courts. Anytime a procedural issue, like choice of law, makes it to the US Supreme Court, the justices are going to make it as confusing as possible. Experts in Con Law spend their lives arguing about the true meaning of the Erie case.

However, because of the huge difference in the way the US handles attorneys fees compared to most other nations, it is highly likely that the issue of whether or not attorneys fees are procedural law or substantive law is already well settled.

As others have already pointed out, a law library will probably have many good references for your issue. Ask one of the librarians if they can teach you how to use West's keycite system. It's not the hard to use and it will help you navigate cases quickly to find those that are relevant to this issue.

Thanks again. Unfortunately, the likelihood of a pro se's having won a case that had international choice-of-law issues is so slim that I doubt there's any precedent on it. Alaska is apparently the only U.S. state that follows U.K. (and presumably Commonwealth) procedure of routinely having the losing side pay the winning side's legal fees. Naturally, I don't want to be in that situation unless, as trial approaches, I have an excellent chance of recouping pro-se fees for my time by requesting that the Court follow the overseas law on the few claims for which it could be appropriate. It seems that one's need to provide "fair notice" on this can occur quite late in the process.

A few months ago I did contact the local libraries (and main university law library) but they only have WestLaw or Lexis for the country's cases, not for the U.S. Now that I need to do a bit of research on the local statutes/cases (for choice of law), I'll probably contact them again. The local WestLaw (WL) rep offered a 2-week free trial for their U.S. WestLaw edition--an offer that I've been saving in case I get stuck. So far, I haven't used it. Similarly, I haven't had to go beyond the $15 (150 page) quarterly, free PACER access. Defendants' counsel likes to cite a lot of WL cases, but they tend not to be particularly relevant or unusual. If they were "precedent setting" or important, they would probably appear as published ones on Google Scholar, which is very up-to-date, having perhaps a few weeks' lag at most.

 

[Paul84]

Cases at a law library are organized according to the key cite system or head note system, which is actually a very easy and handy way to look up case law. Ask any librarian at any law library and they can probably teach you how to use it.

Hopefully the judge will have read everything, but it's not guaranteed. I've had cases where the judge decided the matter based on the briefs alone and declined to allow a hearing. I've also had cases where the opposing counsel submitted nearly 1,000 pages of argument. I highly doubt the judge read any of it.

I don't know NY procedure, but I would guess the oral arguments will be scheduled about 1 to 2 months from the time the briefs are submitted, depending on what type of motion it is. It is likely the court will schedule the hearing at a time that is convenient for the judge. If you can't make it, have a good reason prepared and let the judge know as early as possible and the court will reschedule it.

You've been very helpful, John. I appreciate that. The motion is one under FRCP 12(b)(6) to dismiss for failure to state a claim. I just want to make sure that any date for oral argument doesn't occur when I'm camping/boating for 2 weeks from mid-June and have no phone and Internet access. I feel sorry for some of these clerks and judges that have to read through mind-numbingly dull, poorly written, and repetitious complaints and briefs. One securities complaint I glanced at went on for 350 pages.

 

[tranquility]

This is completely accurate, especially if the procedural rules have been interpreted frequently by the courts. Anytime a procedural issue, like choice of law, makes it to the US Supreme Court, the justices are going to make it as confusing as possible. Experts in Con Law spend their lives arguing about the true meaning of the Erie case.

However, because of the huge difference in the way the US handles attorneys fees compared to most other nations, it is highly likely that the issue of whether or not attorneys fees are procedural law or substantive law is already well settled.

As others have already pointed out, a law library will probably have many good references for your issue. Ask one of the librarians if they can teach you how to use West's keycite system. It's not the hard to use and it will help you navigate cases quickly to find those that are relevant to this issue.

Civ pro is hard. I remember reading the case and thinking I understood it and then read the very next case with what seemed to be the very same facts and it came to a different conclusion. This was in books trying to present things in an understandable fashion. The discussion got into such minutia that what looks so clean and crisp in the Rules suddenly becomes a muddy miasma when the court got a hold of it. And, if someone like Ginsburg wrote the opinion, it could take hours and hours to understand a case. For them, looking to the holding doesn't help that much.

Lawyers who specialize in Civil procedure are well paid, just saying.

 

[Paul84]

Civ pro is hard. I remember reading the case and thinking I understood it and then read the very next case with what seemed to be the very same facts and it came to a different conclusion. This was in books trying to present things in an understandable fashion. The discussion got into such minutia that what looks so clean and crisp in the Rules suddenly becomes a muddy miasma when the court got a hold of it. And, if someone like Ginsburg wrote the opinion, it could take hours and hours to understand a case. For them, looking to the holding doesn't help that much.

Lawyers who specialize in Civil procedure are well paid, just saying.

I read recently that John Roberts became Chief Justice partly because he writes so well. On the other hand, I've come across an oft-cited opinion by another current U.S. Supreme Court justice that left me wondering about his meandering technique of "persuasive writing".