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

Civil Procedure Outline – Solomine
A.      General CivPro Background
1.       We have rules of civil procedure to avoid making up ad hoc procedure for every case.
2.       Procedure allows for consistency and predictability
3.       American system – adversarial system; lawyers do all the talking, judge are passive
4.       Continental Europe – judges are more active in trials
5.       Jurisdictional questions that arise under our federal system:
i.)       Personal jurisdiction
ii.)      Subject matter jurisdiction
iii.)    State v. Federal law applicable
B.      Personal Jurisdiction
1.       Pennoyer v. Neff (1877)
i.)       Facts – Two lawsuits
1.)     Mitchell sues Neff in Oregon state court to pay legal bills, and Mitchell wins a default judgment because Neff was in California and didn’t show up for court because notice was published in a local paper, Neff didn’t see it.
2.)     Neff buys land in Oregon from federal government. Mitchell, who has a default judgment against Neff in Oregon, gets the sheriff to go out, seize the land and sell it to pay Mitchell the amount owed from the 1st lawsuit. The land is sold to Pennoyer in a sheriff’s sale. Neff sues Pennoyer in federal court to get his land back.
ii.)      Issue – Was valid notice given in the 1st lawsuit? No
iii.)    Holding
1.)     The Oregon court lacked personal jurisdiction because Neff never got personal service. Service by Oregon newspaper not sufficient to notify Neff, a CA resident
2.)     Court holds that Oregon only has in personam jurisdiction over the people in the state of Oregon.
3.)     The Power Theory of Jurisdiction
a.)     A state possesses exclusive jurisdiction and sovereignty over people and property within its own territory
b.)     No state can exercise personal jurisdiction over people or property outside its territory.
c.)      Here, Oregon cannot reach outside their state boundaries into California and call him into an Oregon court.
d.)     Exceptions:
i)        A state retains the right to determine the status of its citizens
ii)      A state’s right to refuse outsiders access to the state can be withdrawn in return for their submission to its jurisdiction
4.)     In Personam Jurisdiction – jurisdiction over the person. In personal judgments can be entered only when the jurisdiction has been obtained by personal service of process in the state
5.)     In Rem Jurisdiction – the physical presence of property within the state vests the state with jurisdiction to adjudicate the rights of any individual, whether in the state or not.
6.)     Quasi-in-Rem Jurisdiction – the action is purely in personam (the substance of the case has nothing to do with the defendant’s property), but because the state cannot assert personal jurisdiction, jurisdiction over the defendant’s property is accomplished by attaching the property to the lawsuit.
2.       Hess v. Pawloski (1927)
i.)       Facts – In personam. There was a fender bender accident in Massachusetts. Hess (defendant) was from Pennsylvania, Pawloski (plaintiff) was from Massachusetts. Mass. had a statue that held if a non-resident drove their car on Mass. highways, the out-of-state drive was subject to Mass. jurisdiction by way of appointing the registrar of the motor vehicles as their agent in the state of Mass. Pawloski brought suit in Mass.
ii.)      Holding
1.)     The court upholds the statute allowing the State to appoint the DMV as an agent for out of state drivers. This is done to comply with the formalities of the Power Theory.
2.)     The statue doesn’t violate due process because it doesn’t discriminate against non-residents. It only puts them on the same footing as residents.
3.)     This case illustrates:
a.)     How states had to subtly work around Pennoyer by creating crafty laws.
b.)     Court is slightly backing away from Power Theory principals. Not as absolute
c.)      An exception to the Power Theory might be implied consent.
4.)     The court cites strong public policy of a state protecting the safety of its drivers as a justification for the statute.
5.)     Implied consent – can constitute the consent necessary in Pennoyer to assert personal jurisdiction.
6.)     This is an in-between case between Pennoyer (formalistic Power Theory) and International Shoe (flexible minimum contacts standard)
3.       International Shoe Co. v. Washington (1945)
i.)       Epic b/c it brings in “minimum contact” question, very important to Sol, changes Penn holding (implicitly overrules it)
ii.)      Facts – International Shoe was a corporation incorporated in Delaware, did most of its business in Missouri, but employed Washington residents as sales agents to solicit their shoes in Washington. Int. Shoe had no physical place of business in Washington, no offices, and salesmen were based on commission. The state of Washington sued Int. Shoe for not paying unemployment taxes for Washington employees.
iii.)    Holding
1.)     Defendant must have continuous and systematic minimum contacts with the forum state, and bringing the suit in the forum state cannot offend “traditional notions of fair play and substantial justice.”
a.)     Fair play – defendant’s difficulty in defending the case in the forum state
b.)     Substantial justice – will justice be equally afforded to a non-resident
2.)     Minimum contacts is a subjective test (fuzzy, unclear), while the Power Theory was an objective test (precise).
3.)     The Court breaks away from Pennoyer, but doesn’t specifically overrule it.
4.)     Contract Theory of International Shoe – if the out of state defendant benefits from legal protection in the forum state, they are subject to personal jurisdiction.
5.)     Justification for “minimum contacts”
a.)     If you conduct business in a state, you receive the benefits and protections of the laws of that state.
b.)     States have a regulatory interest in protecting their citizens from out-of-state corporations.
c.)      It won’t be that inconvenient for defendants to litigate in a forum that the defendant already has contacts with.
4.       McGee v. International Life Insurance
i.)       Facts – McGee, a California resident, was the beneficiary of her son’s insurance policy. International Life was a Texas company. This insurance policy was their only one in the state of California. Int. Life didn’t pay, so McGee sued in California under their long-arm statue. Int. Life was served by mail in their home state of Texas, but they didn’t show up to the California court, therefore McGee won a default judgment. International Life contests jurisdiction.
ii.)      Holding
1.)     The Court acknowledges minimum contacts as the legal standard, and expands the rule beyond “continuous and systematic” relations.
2.)     The Court says that were was a “substantial connection” between plaintiff and defendant.
3.)     This is the apogee of liberality in terms of “minimum contacts”
a.)     Shows a liberal, flexible application of minimum contacts
b.)     There are strong policy reasons for finding personal jurisdiction – poor plaintiffs unable to travel out-of-state to make their case, large companies with lots of money are able to come to defendant’s home court.
4.)     Justice Black justifies the expansive view of minimum contracts by citing the nature of the new national economy. Modern transportation and communication have lessened the burden for the defendant of traveling out of state to defend themselves.
5.       Gray v. American Radiator and Standard Sanitary Corp.
i.)       Facts – Illinois was the 1st state to pass a comprehensive long-arm statue after Int. Shoe, most states copied Illinois’ s

and South’s actions were felt in the forum state of California, thus jurisdiction there was acceptable.
a.)     The test is found implicit in WWVW; it is not a new idea, it still applies the minimum contacts analysis.
b.)     The effects test asks whether the defendant expressly aimed their act at the forum state, and whether the effects were felt in the forum state.
c.)      The effects test is not restricted to intentional torts, although it is applied in these cases often.
d.)     The effects test demonstrates the flexibility of the minimum contacts standard; physical presence not necessary in the forum state.
8.       Keeton v. Hustler Magazine
i.)       Facts – Intentional. Keeton sues Hustler Magazine, an Ohio corporation, in New Hampshire for libel. She sues in NH because it has a long statue of limitations. Only 10k-15k Hustler magazines were sold in NH. Hustler contests jurisdiction.
ii.)      Holding
1.)     Jurisdiction was allowed in NH despite the small amount of magazine circulation there. Effects Test- Effects were felt in NH.
2.)     It doesn’t matter that the Plaintiff doesn’t have contact with the forum state, what is important is whether or not the defendant has contacts with the forum.
3.)     NH has an interest in protecting their citizens from false information.
4.)     Single Publication Rule – all damages suffered in all jurisdictions are recoverable in one action.
9.       Burger King Corp. v. Rudzewicz (1985)
i.)       Facts – Burger King is a Florida corporation, Rudzewicz ran a BK franchise in Michigan. All important contract negotiations and training were handled by the Florida BK office. Rudzewicz defaulted on their payments to BK, and BK sued for breach of contract and continuing to operate the store under the BK name.
ii.)      Holding: D has sufficient contacts in FL for FL to have jurisdiction over him.
1.)     Brennan cites all previous authority and formulates a two-step formula:
a.)     First, look at purposeful availment / minimum contacts of defendant – Has the defendant established minimum contacts?
b.)     Then, evaluate the reasonableness of jurisdiction / “fair play and substantial justice”
i)        Fair play – defendant’s difficulty in defending the case in the forum state
ii)      Substantial justice – will justice be equally afforded to a non-resident
2.)     We need minimum contacts before we can ask if jurisdiction is reasonable.
3.)     How do we evaluate reasonableness? Here are some factors:
a.)     Burden on the defendant
b.)     Forum state’s interest in adjudicating the dispute
c.)      Plaintiff’s interest in obtaining convenient and effective relief
d.)     Interest in judicial efficiency.
4.)     Are contracts always minimum contacts?
a.)     No, a contract doesn’t automatically establish minimum contacts.
b.)     Boilerplate contracts – lessens the minimum contact connection between the parties because one party didn’t bargain for the terms.
c.)      This contract was drafted to have contacts in FL- choice of law clause. This is not to be ignored.