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

Civil Procedure 1 Outline—Professor Solomine
 
1.    General Civil Procedure Background
a.    We have rules of civil procedure to avoid making up ad hoc procedure for every case
b.    Procedure allows for consistency and predictability
c.    American system—adversarial system; lawyers do all the talking, judges are passive
d.    Continental Europe—Judges are more active in trials
e.    Jurisdictional questions that arise under our federal system:
i.      Personal Jurisdiction
ii.    Subject Matter Jurisdiction
iii.   State v. Federal law applicable 
2.    Choosing a System of Procedure
a.    Introduction:
i.      Substantive Lawà defines legal rights and duties in everyday conduct. 
ii.    Procedural Lawà Provides the mechanisms for applying substantive law rules to concrete disputes
b.    Bands Refuse Removal, Inc v. Borough of Fair Lawn (1960)
i.      Facts: During a trial, a judge called his own witnesses, and examined them at length
ii.    Issue: Did the judge overstep his boundaries?
iii.   Holding: Yes
1.       A trial judge must exercise impartiality and judicial restraint in order to protect a litigant’s right to due process
2.       Judge’s power must be balanced against the interests of a litigant
c.    Kothe v. Smith (1985)
i.      Facts: Judge imposed sanctions on defendant for settling the case during trial at an amount suggested by the judge prior to trial. 
ii.    Issue: Can a judge impose sanctions for failure to settle prior to trial?
iii.   Holding: No
1.       COA says they appreciate his encouragement
2.       The purpose of Rule 16 is to maximize the efficiency of the court system by urging attorneys and clients to cooperate with the court and to abandon practices that interfere with the management of cases. 
3.    Personal Jurisdiction
a.    The “Power” Theory of Jurisdiction
i.      Pennoyer v. Neff (1877)
1.       Facts: 2 lawsuits
a.    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 only published in a local paper; Neff didn’t see it. 
b.    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.
2.       Issue: can a state properly exercise personal jurisdiction over an individual defendant, who is not present within the state to be personally served?
3.       Holding: No
a.    Oregon court never acquired proper jurisdiction over Neff, so everything was null and void from the first suit.
b.    Oregon only has in personam jurisdiction over the people in the state of Oregon
c.    The Power Theory of Jurisdiction
i.      A state possesses exclusive jurisdiction and sovereignty over people and property within its own territory
ii.    No state can exercise personal jurisdiction over people or property outside its territory
iii.   Protects individuals against the overreaching of the government
iv.   Here, Oregon cannot reach outside their state boundaries into California and call him into an Oregon court.
v.    Exceptions:
1.    A state retains the right to determine the status of its citizens
2.    A state’s right to refuse outsiders access to the state can be withdrawn in return for their submission to its jurisdiction
d.    In Personam Jurisdictionà 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
e.    In Rem Jurisdictionà 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. 
f.     Quasi-in-rem Jurisdictionà 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
4.       Hess v. Pawlowski (1927)
a.    Facts: Accident in Massachusetts. Defendant was from Pennsylvania; Plaintiff was from Massachusetts. Massachusetts had a statute that held if a non-resident drove their car on Massachusetts’s highways, the out-of-state driver was subject to Mass. Jurisdiction by way of appointing the registrar of the motor vehicles as their agent in the state. Plaintiff brought suit in Mass.
b.    Issue: Was the law that implied consent of the defendant to the appointment of the registrar as his agent valid jurisdiction?   
c.    Holding: Yes
i.      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. 
ii.    The statute doesn’t violate due process because it doesn’t discriminate against non-residents; it only puts them on the same footing as residents
iii.   Public policy
iv.   Implied consent can constitute the consent necessary in Pennoyer to assert personal jurisdiction
v.    This is an in between case between Pennoyer (formalistic Power Theory) and International Shoe (flexible minimum contacts standard)
vi.   Example of a long arm statute
b.    The Shift to Minimum Contacts
i.      International Shoe Co. v. Washington (1945)
1.       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. International Shoe had no physical place of business in Washington, no offices, and salesmen were paid on commission. The state of Washington sued International Shoe for not paying unemployment taxes for Washington employees. 
2.       Issue: Does a foreign corporation avail itself to suit within the forum merely by conducting business within the forum?
3.       Holding: Yes
a.    In order to subject a defendant to a judgment in personam, if he is not present within the territory of the forum, he must have certain minimum contacts with the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.
b.    Does not explicitly overrule Pennoyer, but rather implicitly changes the power theory
c.    Pow

ed(14th Amendment due process requirements), we have automatically satisfied the long-arm statute’s requirements
1.    Ex: California says their courts can extend jurisdiction over anyone as long as it satisfies minimum contacts.
2.    Ex: Illinois court had interpreted its long-arm statute to go to the maximum extent permitted by due process. 
ii.    Two step Approach: First have to satisfy the federal minimum contacts standards, then go look at any additional requirements by the state’s long-arm statute. 
d.    Jurisdictional problems are identical in state and federal courts (5th v. 14th amendment)
d.    Refining the Minimum Contacts Analysis
i.      World-Wide Volkswagen Corp. v. Woodson (1980)
1.       Facts: Robinson bought an Audi in NY, drove it cross-country, got in an accident in Oklahoma, and were severely burned because of products liability. Robinson files suit in Oklahoma. WWVW is the regional distributor for New York, they object to the jurisdiction.
2.       Issue: Is it consistent with the Due Process Clause of the 14th amendment for a New York distributor, whose only contact to Oklahoma is that they sold a car that got in an accident in that state, to be sued in that state?
3.       Holding: No
a.    No personal jurisdiction, because no minimum contacts
b.    Foreseeability:
i.      Foreseeability alone is not the only criterion
ii.    If it were, every seller of chattels would in effect appoint the chattel his agent for service of process; his amenability to suit would travel with the chattel. 
iii.   Defendant must have clear notice that he is subject to suit in the forum state, as to alleviate the risk of burdensome litigation. 
1.    Ex: If a corporation purposefully avails itself of the privilege of conducting activities within the forum state, it has clear notice that it is subject to suit there, and can alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to the customers, or severing its connection with the state. 
c.    Even if plaintiffs said they were driving to Arizona, that would not be enough. Because it is not reasonably foreseeable that an accident would happen in Oklahoma
1.    “Unilateral activity” (from Hanson)
2.    No “purposeful availment”
4.       Distinguished from Grey:
a.    There was no foreseeability that the car would go to Oklahoma. Grey could have withdrawn their contract with AR if they didn’t want their products in Illinois; WWV had no such option. 
b.    WWVW is a complete product; Grey is a component part
ii.    Calder v. Jones (1984)