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

CIVIL PROCEDURE I

I. Introduction to Procedure

A. Two categories of law
1. Substantive – defines legal rights and duties in everyday conduct
2. Procedural – provides the mechanism for applying substantive law rules to concrete disputes
B. Two types of civil judicial systems
1. Civil law – judge has an active role, can examine witnesses, reasoning: one non-bias person finds out everything, makes the best decision (Germany)
2. Adversary – judge has passive role, lawyers battle, reasoning: attorney’s will represent clients to the best of their abilities, and best side will win (U.S.) This passive role is not always adhered to – i.e. Judge Weinstein in the Agent Orange case.
C. Federal Rules of Civil Procedure
1. Govern federal courts, and many state courts (if adopted). Ohio has adopted the FRCP.
2. Today, the majority of civil cases settle out of court.
3. The Federal system if very complicated due to personal jurisdiction, subject-matter jurisdiction and distinctions between federal and state law.
D. Two types of Jurisdiction
1. Personal Jurisdiction
a) In Personam – a court’s power to bring a person into it’s adjudicatory process; jurisdiction over D’s personal rights, rather than just property interests
b) Quasi in-rem I – litigation has to do with a property, but property is not a plaintiff. Must attach property at outset.
c) Quasi in-rem II – litigation does not have to do with property, but has to do with remedy. Must attach property at outset.
d) In-rem – Property is the defendant – attachment of property and remedy is related only to property’s value.
2. Subject-matter jurisdiction
a) Federal Question § 1331
b) Diversity of Citizenship § 1332
c) Supplemental Jurisdiction § 1367
E. Forum Shopping
1. Commentators assume that Ps would want to sue in their home state, rather than in federal court.
a) Federal judges have life-tenure and would less-likely be swayed by heart-string constituent arguments.
b) Local judges are more easily persuaded by local opinion. Those judges are elected and tied to the community.
2. Solimine, The Quiet Revolution in Personal Jurisdiction
a) No to very weak statistical support for these conclusions.
b) State judges are rarely elected or not elected based on their decisions.
c) After WWV, the rate of plaintiff’s prevailing in personal jurisdiction cases declined slowly by about 15%
d) Solimine’s interpretation: Personal jurisdiction does not affect elections and thus there really is no difference between federal and state judges exercise of personal jurisdiction. Most plaintiffs do not sue outside their forum state for reasons of cost and convenience. There was very little effect after WWV because contacts is not a bright line rule, it’s a multi-faceted standard. If WWV was a bright line rule you would expect a drastic change in personal jurisdiction.
3. Rothschild Forum Shopping
a) Forum shopping is not bad and really is a fact of life and potentially a matte rof sound litigation strategy.
b) Considerations critical to a comprehensive choice-of-forum analysis
i. availability of favorable substantive, procedural and remedial law – courts are more likely to apply the law of the forum they are in.
ii. effect of a judgment and its en

ppeal) alleging that the Mitchell suit should be invalid, because Oregon did not have jurisdiction over Neff, a non-resident
b. HOLD: Personal service, in-state, is required for a court to exercise personal jurisdiction over a non-resident. Personal service is not required for a state to exercise jurisdiction over property within the state (in-rem jurisdiction). (Bright line rule)
c.Power Theory: A state only has power over the persons and things within its geographical boundaries. Implies that no state may exercise direct jurisdiction over persons and property without its territory.
d. Mitchell’s suit may have been upheld if he had attached the property at the beginning and proceeded in-rem.
2. Hess v. Pawloski – USSC (1927)
a.Facts: D, a PA resident, injured P in MA. MA statute allowed for personal service on receipt of an agent. In addition, an agent was created for the person, when he took advantage of MA roads.
b. HOLD: Affirms finding of personal jurisdiction, because service was made in state. Still working in the confines of state boundaries.
c.Cites public policy of safe highways.
d. Beginnings of a shift: Discussion of public policy, tort claims, and a desire to compensate injured victims moves away from the extremely formalistic approach in Pennoyer.
Restlessness under Pennoyer