When a state claim goes to a federal court through § 1332 or §1367, the court needs to determine which laws they will apply to the case. For instance, if a person from California sues someone from Nebraska, how do we determine which laws will be used?

You need to look at the choice of law rules within the forum state. Just because you file a suit in a certain state does not mean that those laws will be applied. For instance, say a plane crashes in Colorado after departing from California. Colorado’s rules say that they will apply the law from the state of departure. So, even if Colorado is unfriendly to your claim, and California is, then you can file in Colorado and achieve a positive outcome by applying California laws.

Through contracts, parties can agree to choose which laws to apply.

Ongoing steps of analysis:

  1. Determine where you can sue within the restrictions of personal, subject matter jurisdiction, and venue.
  2. Determine which state you will want to sue because of the choice of law rules.



  • There is no general federal common law.
  • Applies to federal diversity jurisdiction and supplemental jurisdiction cases. Federal courts will be applying state common law.
  • Erie Guess: When there is no state law ruled on for an issue, federal courts must guess how the state will rule. Applies only to diversity jurisdiction cases. If the State later rules on the issue, the federal courts must follow the state’s process.
  • Sometimes, states allow you to certify the issue to send it over to the state courts to resolve the issue.


  • Most of the time, will apply state substantive law and federal procedure law. We will not apply federal procedure if it changes state substantive law.
  • Only time the exception applies is when it comes to statute of limitations.


  • Follow York. Follow the state law rules for statute of limitations.


  • In federal diversity cases, we follow the federal procedure law.
  • This was a case where there was a dispute about whether the parties needed to follow federal or state rules of procedure for service of process.

Forum Selection

Stewart v. Ricoh

  • Follow the forum selection clause in contracts. Federal courts strongly support forum selection clauses because they are procedural.


  • You will use the choice of law rules of the forum state.
  • Choice of law are statutes within the state that say which substantive laws (which state) they will apply.

Van Dusan

  • If venue is proper and the party moves to transfer under 1404, then you use the choice of law rules of the forum state of the original venue.

Atlantic Marine

  • If venue is proper but a forum selection clause was violated, a 1404 transfer does not bring the choice of law rules of the forum state. In other words, if a forum selection clause was violated, Van Dusan does not apply.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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