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

I. Choosing a System of Procedure


Substance v. Procedure

Substantive law defines legal rights and duties in everyday conduct

Procedure sets out the rules for enforcing substantive rights in the courts.
Reason for procedural system:
standardizing the method of litigation
allows that all cases are not decided ad hoc
assures that the same kinds of information and standards of examination are applied in similar cases


Band’s Refuse Removal, Inc. v. Borough of Fair Lawn , 62 N.J. Super. 522
(chosen to illustrate the problems of Ad Hoc trials)
Rule: A trial judge must exercise impartiality and judicial restraint in order to protect a litigants right of due process.

Brief Fact Summary. Capasso (Defendant) appeals from a judgment declaring their garbage collection contract with the Borough of Fair Lawn void, declaring all payments made to them under the contract void, declaring Fair Lawn Ordinance 688 void, and awarding $303,052.62 to the Borough of Fair Lawn (Defendant). Defendant contends that the judgment must be reversed because of the manner in which the trial judge conducted the proceedings.
The trial judge overstepped the permissible bounds of judicial inquiry. Generally, it has been held that a trial judge may interrogate a witness, when it is not excessive. However, this power to call and examine witnesses is not unlimited. A judge’s power must be balanced against the interests of a litigant.
In the instant case, prejudicial error resulted from the trial court’s production of a large number of witnesses and admission of their testimony.
Prejudicial error also resulted from the creation of new issues by the court without notice. A trial judge’s function is to serve litigants by determining their disputes and issues based upon the applicable rules of law. A judge may not initiate litigation or expand the case by adding new issues without giving the parties full and fair opportunity to meet those issues. As a result of the creation of new issues and denial of opportunity to investigate those issues the defendant was denied due process.





Kothe v. Smith , 771 F.2d 667
Rule: A trial judge may not abuse his sanction power in order to encourage settlement.
Brief Fact Summary. Patricia Kothe (Plaintiff) brought suit for medical malpractice against four defendants, Dr. Smith, Dr. Andrew Kerr, Dr. Kerr’s professional corporation, and Doctors Hospital (Defendants). Plaintiff discontinued actions against Dr. Kerr, Dr. Kerr’s corporation and Doctors Hospital. Sanctions were imposed against Defendant, Dr. Smith, for settling the case during trial at an amount suggested by the judge prior to trial. Thus, Defendant appeals from a judgment of United States District Court of Southern District of New York, which directed him to pay $1,000 to Plaintiff’s attorney, $1,000 to Plaintiff’s medical witnesses, and $480 to the clerk of the court.
·                     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. Imposing sanctions on parties for settling cases after the trial begins is contrary to the purpose behind the rules, which is to encourage the settlement of cases.
·                     The district court’s imposition of sanctions was an abuse of the sanction power in Rule 16 (f) of the Federal Rules of Civil Procedure. A trial judge must not use pressure tactics to compel settlement. Rule 16 was designed to encourage pretrial settlement discussion, not to impose negotiations on unwilling litigants.
·                     The coercion in this case was also troublesome, since the court imposed sanctions on the Defendant alone. The Defendant should not have been required to make an offer to settle because the court wanted him to. Defendant’s attorney had every right to change his evaluation of the case after the trial had begun.

II. Personal Jurisdiction
Most litigation regarding personal and subject-matter jurisdiction is driven by one or both
sides to the law suit seeking a court that they think is more favorable to their side, i.e., making it
more likely, they predict, that their side will prevail on the merits. In other words, they are forum
shopping.

A. Early Cases
For a state to exercise power over individuals or property there must be valid service of process on the individual (in personam cases) or attachment of property in the state (in rem actions)
Jurisdiction over the parties: There are three kinds:
1)      In pe

out of contact with the state. NOTE: Because general jurisdiction is more difficult to obtain than specific, it is easier to argue first for spec. jurisdiction.
B)     In Rem – the court has power over a particular piece of property. Limited to property within the state’s physical borders and is necessary for the state to be able to bind all persons regarding the property’s ownership and use. Typical for eminent domain, drug forfeitures, and estate settlements.
C) Quasi In Rem – the court has the power over a particular piece of property regarding a particular person. The court cannot decide the rights of all persons regarding the property. The court’s judgment only extends to the property and does not bind the defendant personally.
3. Individual’s presence – Jurisdiction may be exercised over an individual by virtue of his presence within the forum state.
A) Originally chief basis – Originally, presence within the state was the chief, if not sole, basis for personal jurisdiction
1) Pennoyer v. Neff – Since the state’s power only extends to the edge of its borders, Pennoyer held, “Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory and respond to proceedings against them.”
a) Where the entire object of the action is to determine personal rights and obligations, the action is in personam and service by publication is ineffectual to confer jurisdiction over the nonresident D upon the court. Process sent out of state to a nonres is equally ineffective to confer personal juris. In an action to determine a D’s personal liability, he must be brought within the court’s jurisdiction by service of process within the state or by his voluntary appearance.
B) Presence still enough – Today, presence within the forum state is only on of numerous