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

Civil Procedure-Michael Solomine-Fall 2010
–       Substantive law defines legal rights and duties in everyday conduct.
–       Procedural law sets out the rules for enforcing substantive rights in the courts.
–       Without procedure there would be no standardized method of litigation.
–       Procedure serves the legal system by providing a remedial process that replaces destructive motivations like self-help and personal retribution.
–       The manner of distributing control over the process and the decision between the decision-maker and the parties is the most significant factor in characterizing a procedural system.
–       Band’s Refuse Removal, Inc. v. Borough of Fair Lawn (1960)
o    This case is an example of a time when procedure was ignored.
o    The judge subverted the functions of various parties, the judgment was remanded, and a new trial was ordered.
o    This case also examines the judge’s role i.e. active versus passive. In this case the trial judge was clearly advocating his stance and was not impartial.
–       Adversary System: In the U.S. adversary system the judge is supposed to take a passive role. This approach focuses on the interaction of all the involved parties and attorneys. The reasoning is that each party is given ample opportunity to present his case and the best attorney will be victorious.
o    A negative take on the adversary system is that it provides us with uninformed judges who are limited in their amount of information they can pursue.
–       Investigatory System: In the Continental Europe (Germany) investigatory system the judge is supposed to take an active role. The judge interrogates the witnesses and experts, while the attorneys only put supplementary questions. The reasoning is that one non-biased person as fact finder makes the best decision.
–       Kothe v. Smith (1985)
–       Although the law favors the voluntary settlement of civil suits, it does not sanction efforts by trial judges to effect settlements through coercion
1. Personal Jurisdiction
–       The SC has repeatedly attempted to define the appropriate limits on the power of state courts to ‘exercise personal jurisdiction over’ defendants; that is to require them to come into the state to defend lawsuits there.
–       Three Types of Jurisdiction
o    In Personam: The state acquires jurisdiction over the person by personally serving them with the process.
o    In Rem: The state has jurisdiction over property within the state regardless of the whereabouts of the owner.
§  The property must be involved in the cause of action.
§  Service by mail or publication is okay.
o    Quasi in Rem: The “attachment jurisdiction” in which a piece of property is attached to the lawsuit and through which a court gets jurisdiction over the claim.
§  Attachment cannot happen after the complaint is filed.
§  The cause of action is totally unrelated to the property.
§  The maximum recover is the piece of attached property.
A.   “Power” Theory of Jurisdiction
–       Each state is a sovereign entity that has total control over persons or property within its boundaries and no control over persons or property outsides of its boundaries.
–       Theory behind Pennoyer
–       Pennoyer v. Neff
o    Lawsuit 1: Mitchell (Oregon) v. Neff (California) for breach of contract in Oregon State Court. Neff had an unknown address, was a non-resident, and was served via publication. Mitchell won the suit by default, had a piece of land then owned by Neff seized, and then sold the land to Pennoyer. This is where the jurisdiction problem arises.
o    Lawsuit 2a: Neff v. Pennoyer. Neff files an in rem complaint in the federal trial court of Oregon to recover his land. He claims that the judgment in the Mitchell v. Neff case was not valid because the Oregon state court did not have jurisdiction over him. Court rules in favor of Neff.
o    Lawsuit 2b: Pennoyer v. Neff. Pennoyer directly appeals to the US Supreme Court, contesting that the federal trial court in Oregon erred. The SC affirms the judgment in favor of Neff.
§  Personal in-state service is required for a court to exercise personal jurisdiction over a non-resident (in personam).
§  Jurisdiction was not acquired by the attachment of the property at the onset of the lawsuit with Mitchell (quasi in rem). Attachment cannot happen after the complaint is filed.
§  Publishing in an out of state newspaper is not enough, still need to give the notification to the person.
–       Even today personal jurisdiction against a non-resident can still be established by service within the state (Burnham).
–       Hess v. Pawloski
–       The power theory may be circumvented by the appointment of an agent within the state, such as for driving in a state
–          A Massachusetts statute said that to drive a car in the state meant that the person should consider the registrar to be his agent and that process could be served on that agent.
o    The statute was made to modernize a seemly ridiculous law in order to claim jurisdiction over out of state drivers
–       Implied consent can constitute the requisite consent needed to assert personal jurisdiction over a non-resident. (First time we see this, in New Jersey v. Kane, people had to consent to ride on highways)
–       The court stressed the inherent dangers of motor vehicles and the special interests of states in public safety.
B.  The Shift to Minimum Contacts
–       The Court moves away from the Power Theory and adopts a new and more flexible standard for asserting personal jurisdiction.
–       International Shoe Co.(D) v. Washington (P) (1945)
–       Facts: Defendant was an out of state company that employed salesmen within the state of Washington. Washington sued Defendant to recover unpaid unemployment taxes and served Defendant in two ways: (1) by mail and (2) by serving one of its salesmen within the state. Defendant appealed from a verdict for Washington, claiming that Washington had no personal jurisdiction over Defendant.
–       International Shoe implicitly overrules Pe

xercise personal jurisdiction, the court may lack the power to call the D before it because the DPC does not actually confer any jurisdiction on state courts, only defines the outer bounds of permissible jurisdiction power, so the legislature of each statue must grant the power to its courts though statutes.
–          Gray v. American Radiator (1961) (Stream of Commerce)
–          Facts: P was injured when a water heater exploded. He sued the Pennsylvania company that made the water heater and the Ohio company that made the faulty valve. The court used part of the long-arm statute to assert jurisdiction. It interpreted “the commission of a tortious act within this state” to apply to tortious acts committed without the state which caused injury within the state.
–          Stream of Commerce theory: First attempt to justify products liability for injury caused outside the state, where the product was made. Idea is that company places its product into the stream of commerce and can thus reasonable foresee its use in another state.
o    Defendant has to purposefully availed itself.
–          Benefits analysis: Company is still receiving benefit from a state, even if it doesn’t know it, and thus must be subject to suit in that state.
–          Two step approach (really one step because if the answer to (1) is yes, it would be rare to be unconstitutional)
o    Is there a state statute that authorizes the court to exercise personal jurisdiction under the circumstances of the case (long-arm statute)?
o    If yes? Would it be constitutional under the DPC to do so?
§  A long arm statute may not exceed the DPC limitations.
–          REALLY DOESN’T MAKE A DIFFERENCE – very rare that one test is met and the other is not, same facts and analysis for both.
D.  Refining the Minimum Contacts Analysis
–          World-Wide Volkswagen Corp. v. Woodsen (1980)
Facts: Robinson’s purchase a new Audi from Seaway VW in N.Y. As they are moving cross country to their new home in Arizona, the car malfunctions in Oklahoma severely injuring the Robinson family. They bring suit against the manufacturer (Audi), the importer (VW of American), the regional distributor (WWV World-Wide) and the retail dealer (Seaway). Seaway and Worldwide (retailer and distributor, both US entities) petition for a writ of prohibition against Judge Woodson claiming that OK’s exercise of jurisdiction over them would offend the limitations on the State’s