Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]For the non lawyers, here's a brief summary of the Berk holding:
Berk v. Choy reinforces the Supreme Court's consistent approach to conflicts between state law and the Federal Rules of Civil Procedure. When a valid Federal Rule directly addresses the same question as state law, the Federal Rule governs, regardless of how important or substantive the state's policy objectives may be. The Court has never invalidated a Federal Rule under the Rules Enabling Act, and this decision continues that unbroken streak.

The decision also demonstrates the limits of Erie doctrine. While federal courts sitting in diversity must apply state substantive law, the Federal Rules occupy their own domain. States, with the possible exception of the kinds of affidavit or certification requirements contemplated under Rule 11, cannot use procedural requirements, even those with substantive policy goals like reducing frivolous litigation, to alter federal practice in diversity cases
https://www.bakerdonelson.com/berk-v-choy-what-the-supreme-courts-ruling-means-for-medical-malpractice-litigation[/quote]

But 47.1 doesn't directly conflict with FRCP 54. FRCP 54(d) governs the award of costs and fees to a prevailing party. Court costs are automatically assumed but parties must file a motion for attorney's fees. That motion must include legal grounds for the award. The legal grounds may be federal or state, it depends on governing law. But using 47.1 doesn't contradict the federal rules, it fits within them. 47.1 creates a legal grounds for obtaining attorney's fees under 54(d). [/quote]

But Liman is specifically stating that he has not decided whether Rule 41.7 requests can be brought under Rule 54, and if they can be, suggests that a different burden of proof may apply.  That is very explicitly stated in his order.[/quote]

All he says is that the parties should assume for the purposes of this briefing and hearing that a 47.1 motion may be made under FRCP 54.  That just means that he explicitly does NOT want them to come to him with arguments that 47.1 doesn't apply under FRCP 54. He is also definitely not suggesting that a new burden of proof may apply. He's asking the parties to present arguments and case law supporting a particular burden of proof, but he's not tipping his hand as to what he thinks it should be.

His order is just designed to narrow the issues for the briefs and hearing. I tend to think it's unlikely he would waste everyone's time (including his own) with this hearing regarding burdens if he was leaning towards saying 47.1 doesn't apply at all and 54(d) supersedes. If he just wanted to be thorough, he could ask for briefing on the burden issue so that he could address it in his ruling, but I doubt he'd request a hearing. But that's just my opinion, I could be wrong. He worded the order very carefully to avoid indicating what he actually thinks here.[/quote]

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