2 Pursuant to 28 U.S.C. § 1652 and the Erie doctrine, California substantive law applies in this case. 28 U.S.C. § 1652; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938). Case 3:15-cv-02340-WHO Document 48 Filed 11/30/16 Page 6 of 9 5 3:15-cv-02340-WHO DEFENDANT CODMAN & SHURTLEFF, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 App. 4th 1467, 1483 (1999) (affirming directed verdict for medical device manufacturer on negligent failure to warn claim); Carlin v.

However, SWA overlooks the well-established fact that the Erie doctrine is inapplicable to issues or claims governed by federal law. First Southern Fed. Savings & Loan Assoc. of Mobile, Ala. v. First Southern Savings and Loan Assoc. of Jackson County, Miss., 614 F.2d 71, 73 (5th Cir. 1980); see also Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); 28 U.S.C. § 1652. Accordingly, it is unsurprising that each of the cases SWA cites in footnote 11 in support of the proposition that the TCPA applies in federal court is a diversity jurisdiction case involving claims governed by state law.

Their opposition papers asserted -3- Case 1:13-cv-04895-PKC Document 56 Filed 07/25/14 Page 7 of 34 that plaintiffs’ claims are time-barred and leave to file their proposed second amended complaint should be denied because filing it would be a futile act. ARGUMENT A. NEW YORK’S CHOICE-OF-LAW RULES GOVERN WHICH STATUTE OF LIMITATIONS APPLIES TO THE PLAINTIFFS’ CLAIMS The Second Circuit recently described the proper analysis in diversity cases for choosing the applicable statute of limitations under the Rules of Decision Act, 28 U.S.C. § 1652,1 in Liberty Synergistics, Inc. v. Microflo Ltd., 718 F.3d 138, 151-52 (2d Cir. 2013) (internal references and citations omitted, emphasis in original): As interpreted by the Supreme Court, the Rules of Decision Act, 28 U.S.C. § 1652, provides that federal courts exercising diversity jurisdiction over a state- law claim must consider two conceptually distinct issues. First, a federal court exercising diversity jurisdiction must apply the choice-of-law rules of the state in which that court sits to determine the rules of decision that would apply if the suit were brought in state court.

Therefore, the appropriate state statute is used. See 28 U.S.C. Section 1652 (1976); 42 U.S.C. Section 1988 (1976); Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976); Warner v. Perrino, 585 F.2d 171 (6th Cir. 1978). The court held that Tennessee's one-year statute, Tenn. Code Ann. Section 28-304 [predecessor version to 28-1-305], provides the applicable limitations period for the type of constitutional claim asserted here.

V. ARGUMENT AND AUTHORITY Under the Erie doctrine, a federal court sitting with diversity jurisdiction applies state substantive law and federal procedural law. (See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996); 28 U.S.C. § 1652). In the present case, this Court has jurisdiction based on diversity.

Therefore, the appropriate state statute is used. See 28 U.S.C. Section 1652 (1976); 42 U.S.C. Section 1988 (1976); Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976); Warner v. Perrino, 585 F.2d 171 (6th Cir. 1978). The court held that Tennessee's one-year statute, Tenn. Code Ann. Section 28-304 [predecessor version to 28-1-305], provides the applicable limitations period for the type of constitutional claim asserted here.

Accordingly, Navin’s grounds for dismissal are premised on Colorado law. See 28 U.S.C. § 1652. As shown above, Navin signed the Franchise Agreement and NDA solely in her capacity as “Administrator” of Prominent Home Care, Inc. and not in her individual capacity.

10 Federal courts rely on state court precedent in interpreting matters of substantive state law. See generally, Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), 28 U.S.C.A. § 1652. State principles of statutory construction are considered substantive state law.

2 Section 34 of the Judiciary Act provides: The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. 28 U.S.C. § 1652. 4 Case 1:08-cv-10922-DAB Document 113 Filed 12/13/11 Page 7 of 14 Morgan Invest.

However, in applying federal law, the Court may also look to state law. 28 U.S.C. § 1652; United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979). Both federal law and Massachusetts law are guided by the Restatement (Second) of Contracts.