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Civil Procedure I
University of Cincinnati School of Law
Steinman, Adam N.

CIVIL PROCEDURE I                                 Prof. Steinman
2007
 
                                     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
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
Quasi in-rem I – litigation has to do with a property, but property is not a plaintiff. Must attach property at outset.
Quasi in-rem II – litigation does not have to do with property, but has to do with remedy. Must attach property at outset.
In-rem – Property is the defendant – attachment of property and remedy is related only to property’s value.
2.Subject-matter jurisdiction
Federal Question § 1331
Diversity of Citizenship § 1332
Supplemental Jurisdiction § 1367
E.     Forum Shopping
1.Commentators assume that Ps would want to sue in their home state, rather than in federal court.
Federal judges have life-tenure and would less-likely be swayed by heart-string constituent arguments.
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
No to very weak statistical support for these conclusions.
State judges are rarely elected or not elected based on their decisions.
After WWV, the rate of plaintiff’s prevailing in personal jurisdiction cases declined slowly by about 15%
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
Forum shopping is not bad and really is a fact of life and potentially a matte rof sound litigation strategy.
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 enforceability
                                                                      iii.                  nature of appellate review and procedure
                                                                      iv.                  quality and character of the judges
                                                                        v.                  jurisdictional bias and jury composition
                                                                      vi.                  geographical convenience
                                                                    vii.                  cost
Attorney convenience is probably one of the biggest factors for forum choice.
How to win, once you’ve picked
                                                                          i.                  make your complaint comprehensive
                                                                        ii.                  relate case to pending or previously pending litigation in that court
                                                                      iii.                  timing is crucial
Reasons for federal forum selection when there is concurrent state and federal juris.
                                                                          i.                  geographic convenience
                                                                        ii.                  fear of local bias
                                                                      iii.                  superior rules of procedure
                                                                      iv.                  case delay
                                                                        v.                  judicial competence
                                                                      vi.                  litigation costs
                                                                    vii.                  favorable or unfavorable precedent
                                                                  viii.                  higher damages awards
                                                                      ix.                  jury pool differences
                                                                        x.                  better rules of evidence
                                                                      xi.                  greater judicial pretrial involvement
                                                                    xii.                  selection of forum may be client or referring attorney
Actions D can take to minimize or eliminate Ps forum advantage:
                                                                          i.                  Challenge personal or subject-matter jurisdiction
                                                                        ii.                  seek dismissal based on forum non Convenien

g: If person/corporation has a substantial presence within the state, it has accepted the privilege of protection under the law, and consequently its responsibilities.
d.      Still retained a geographical outlook, however Pennoyer focused whether service of process was completed in a location and Shoe focuses on the location within the forum of facts about the controversy.
e.       Two types of contacts: Either could support personal jurisdiction if sufficiently developed
                                                                          i.            related to the controversy (specific jurisdiction)
                                                                        ii.            unrelated to the controversy (general jurisdiction)
f.       Pennoyer was a rule, whereas Shoe is a standard. However, standards over time take on attributes of rules and rules over time, become punctured with exceptions and take on characteristics of a standard.
2.      McGee v. International Life Ins. Co. – USSC (1957) *Expansive reading of minimum contacts for contracts*
a.       Facts: McGee buys a policy from a company in Arizona. The company sells out to a company in Texas. The Texas company has no contacts within California except that McGee has been mailing from California the premiums. McGee dies and the Life refuses to pay the policy because they think it was a case of suicide. California claims jurisdiction and gives McGee the default judgment, because Life doesn’t even bother to go to Cali. McGee goes to Texas to try and enforce the Cali ruling, but Texas says that the Cali court didn’t have jurisdiction. McGee appeals to the US Supreme Court, which finds for McGee under the “minimum contacts” doctrine.
b.      Hold: Meets minimum contacts, because the suit was based on a contract, which had a substantial relation to the state.
c.       Apogee of liberality of m.c. doctrine.
d.      Established a forum’s authority to exercise jurisdiction over nonresident D’s in lawsuits resulting from their forum-directed activity.
3.      Hanson v. Denkla – USSC (1958)
a.       Facts: Complicated case where a trust was set-up in Delaware by a PA woman who moved to Florida and died.
b.      HOLD: Exercise of jurisdiction unconstitutional, because it is essential that there be some act by which D purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.
c.       Unilateral activity of those who claim some relationship with a nonresident D cannot satisfy the requirement of contact with the forum state.