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Civil Procedure I
University of Cincinnati School of Law
Solimine, Michael E.

Civil Procedure I

Prof. Solimine

Fall 2013

I. Introduction to Procedure (pp. 1-28)

A. Substance v. procedure; dangers of ad hoc procedure

1. Substantive law—defines legal rights and duties in everyday conduct

2. Procedural law—sets out the rules for enforcing substantive rights in courts

a. Procedural system provides mechanism for applying substantive law rules to concrete disputes

b. If no set of procedural rules, then you have to make them up for everyone (ad hoc)

i. Unfair and inefficient

ii. Who would set them for each dispute (judge, atty, etc)

c. With rules of procedure, judges still have discretion when applying them

B. Band’s Refuse Removal, Inc. v. Burrough of Fair Lawn (1960)

1. F: Capasso had garbage K w/Fairlawn

City passed ordinance 688→only person who held K w/city could get garbage permits

Π collected from Western Electric plant in town

· Applied for permit and was denied

· Sued, alleging 688 was arbitrary, discriminatory, unconstitutional, unauthorized

Capassos filed motion as Δs

Grand Jury investigation into scavenger K alleged improprieties among city officials in bidding process

Π amended complaint to say Capasso’s K invalid

Trial Judge pre-tried case by adding witnesses and not disclosing them (turned into advocate)

TJ voided K of Capasso and gave judgment against them and voided 688

Capasso appealed

App ct said 688 was valid and π had no standing to challenge validity of K

2. I: Did judge abuse his discretion by adding issues and witnesses not put up

by the parties?

3. H: Yes

4. R: Judicial powers not unlimited

No restraint=denial of due process

Penalty of not naming witnesses is exclusion of testimony

Judge can’t expand a case before him

5. C: Remanded for new trial

6. Per class—judges should be passive and let attys try the case

· Judge went out of bounds

C. Judge should help clarify testimony but remain detached from parties

D. Lon Fuller, Problems of Jurisprudence

1. Moral force of judgment will be max when the following conditions are satisfied:

a. Judge doesn’t act on own initiative, but on that of one or both of the parties

b. Judge has no direct or indirect interest in outcome of case

c. Judge confines his decision to controversy before him and attempts no regulation of parties beyond that controversy

d. Case presented to judge involvers existing controversy, not only the prospect of future controversy

e. Judge decides case based solely on evidence and arguments presented by parties

f. Each disputant is given ample opportunity to present his case

E. Zeidler, Evaluation of Adversary System: As Comparison, Some Remarks on the Investigatory System of Procedure

· Continental system—facts found by judiciary, and

· Parties draw perimeters of the dispute and within these the ct must determine the issues raised by the parties

F. Marvin Frankel, The Search for Truth: An Umpireal View

· Ignorance and unpreparedness of judge are intended by our system

· Facts are to be found and asserted by contestants

· Trial judge serves best as a relatively passive moderator

G. Deficiencies in common law include excessive bias in cross-examination

H. Deficiencies in civil law system include lack of interest by of ct

I. We’ve moved toward a more active role for judges

J. Kothe v. Smith (1985)

1. F: Medical malpractice suit against Δ (+ insurance carrier)

Trial judge encouraged settlement of $20-30k and declared he would penalize party who delayed if settlement was around that amt after trial started

Case settled after 1 day of testimony for $20k

Judge penalized Δ for delay

Δ appealed fine

2. I: Can judge force parties into settlement?

3. H: No

4. R: Rule 16 FRCP was not designed to force parties into involuntary compromise

5. C: Remand mater and judgment vacated

K. Procedural challenges of our federal system

1. Subject Matter Jurisdiction

· Fed ct are of ltd juris

o 2 kinds of cases: 1) fed question and 2) diversity of citizenship

2. Personal Jurisdiction

· Due process cl of Const has been held to forbid PJ unless Δ has voluntarily established a contact with the state in which the ct sits so that it is fair to require a defense there

3. Federal v State law

· When no fed ?, judges should look to state law for substantive law but should apply fed procedural law

II. Personal Jurisdiction and Related Issues

§ Forum shopping?

A. Personal Jurisdiction (Early Cases, pp. 743-756, 760-763)

1. Pennoyer v. Neff (1877)

a. F: Mitchell sued π for attys fees

No address so they ran a publication for 6 wks

π did not answer→SJ in Mitchell’s favor

π acquired land in Oregon 1 mth later

Mitchell executed judgment against land and sold to Δ

Π sued Δ for title

TC ruled for π based on faulty affidavit

b. I: 1) Is default judgment obtained against non-resident who failed to

answer b/c no service valid?

2) Can property be attached to satisfy judgment?

c. H: 1) No

2) No

d. R: 1) Lead to oppression

Violate due process

2) In personam judgments can’t attach property

Validity of judgment based on current status, not what may occur subsequent

(needed to attach property at time of suit, not a

l justice”***

2-part test: 1) Purposeful availment

2) Direct business to state

e. Black’s concurrence: take away power of state to protect its citizens in their business


should be able to sue corp. who do ANY bus. in state

no min contacts

3. McGee v. International Life Ins. Co. (1957)

a. F: 2 suits—1 in Ca state ct and 1 in Tx state ct

π received judgment in Ca. on ins policy of son which he bought in Ca

Δ corp is in Tx (Δ had bought ins pol from another company)

Π went to Tx to try to get ct to enforce judgment and Tx cts refused b/c no due process (claimed Ca didn’t have juris)

Ca based juris on statute allowing suits against foreign corp

b. I: Can state have juris w/foreign corp who do business in state even though

process was not served in forum state?

c. H: Yes

d. R: State can provide means of redress for citizens

Growing economy requires it

Sufficient for due process that corp had K in state

Min contacts can be minimum indeed (McGee was only K)

e. High point of liberality for min cont

4. Hanson v. Denkla (1958)

a. F: Trust in DE

Moved to Fl

Fl tried to exercise juris

b. Π can’t unilaterally create min cont

c. ***essential in each case that there be some act by which the Δ purposefully avails itself of the privilege of conducting activities w/i forum state, thus invoking the benefits and protections of its laws***

d. Focus on rel’ship b/w forum and Δ was indispensable to min cont inquiry

e. Contacts would achieve minimum only if they were sufficient to support power theory

5. Long-arm statutes

a. 2 step (min cont + state statute requirements)—Oh. v. 1 step (min cont)—Ill.

b. 2 step—look @ cases interpreting D.P. cl and precise language of statutes

c. 1 step—just due process cases

d. Illinois model

i. Transaxn of bus w/I state

ii. Commission of tort w/I state

iii. Ownership, use, or possession of real estate in state

iv. Contracting to insure any person, property, risk in state

e. California model

i. Ct may exercise juris on any basis not inconsistent with const. of Ca or US