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Civil Procedure I
University of Dayton School of Law
Perna, Richard P.

I. The Legal System
A. Three branches of government:
·        Executive Branch-carries out the laws
·        Legislative branch-initiates and passes laws
·        Judicial branch-interprets and applies the laws.
B. Two categories of Courts: Federal and State
1.      Federal-lower courts (trial and appellate) were established by Congress and the US Supreme Court was established by Article III of the US Constitution.
2.      State-established by the different states. They are county and city (municipal) and they operate under state authority. They have their own rules of civil procedure which govern the operation of the state courts.
The state court system and the federal system are separate and distinct.
C. Three levels of Federal Courts
·        District-lowest court
·        Appellate-Circuit Court of Appeals
·        Supreme Court
The opinions of the highest court are always binding on that of the lower courts (if it is a majority opinion), if the courts are within the same federal circuit.
             1.  District Courts:
             Plaintiff v. Defendant
94 federal jurisdictions each with its own federal district court and set of local rules, which expand not contradict the Federal Rules of Procedure. Trials only take place in district/”trial” court. Every state and commonwealth has at least one district court. Some US districts cross state lines and that is when the region is broken in Northern, southern, Eastern and Western District Court of that state.
2.  Appellant Court-Courts of Appeals
                             Appellant v. Appellee (loser v. winner)
                  The courts possible holdings:
·        Affirm-uphold
·        Reverse-mistake was made; trial court decision does not stand
·        Remand-send it back to trial court because further investigation is necessary
Reviews the written record and exhibits (only) trial court proceedings. Includes 12 regional Circuits and 1 Federal Circuit covering specialized appeals for the whole country. If a defendant or plaintiff loses at the trial court level they can appeal to this court only in their numbered circuit.
-When the appeal raises an issue of law-the appellant court may substitute its judgment for the judgment of the trial court. The standard is termed de novo.
-When the appeal raises an issue of fact-the appellant court must defer to the factual determinations of the jury or judge, unless there was not enough evidence to support the decision due to error.
-If the appeal involves an issue that is left to the “sound discretion of the trial judge” than the appellant court will defer to the trial court, unless there was a clear abuse of discretion.
-In most cases the Circuit Court Judge is being asked to review the asked to review the case to make sure the trial Judge applied the law correctly. And the Court can substitute its own judgment for that of the trial judges-de nov.
3.US Supreme Court-
Petitioner v. Respondent –loser v. winner
Here’s cases from the 13 Federal Circuit Courts of Appeals and from the state supreme courts if a federal statutory or constitutional issue is involved-does the case have federal question). The court is not required to here the case. When the court has agreed to hear the case it means that it granted a writ of certiorari (happens when 4 of the 9 justices voted to hear the case). The writ of cert. is generally granted when the appellate courts of the 12 federal circuits have produced conflicting opinions on the same legal issue and it’s an issue that the Supreme Court thinks is of significant national importance.
The court reviews the written record and exhibits from the trial court, as well as the legal opinion and decision of the court of appeals. The court determines if the trial court and the appellant court below applied the law correctly. Very seldom does a trial take place in the Supreme Court.
All courts look to the US Supreme Court for guidance and ALL federal courts are constitutionally and statutorily bound to follow the Supreme Court’s interpretation of federal law.
Another function is that the court writes the Federal Rules of Civil Procedure and amendments. Then Congress passes the Supreme Court’s proposed rules as written.
Supreme Courts adjudicative function-legally binding case precedent. Quasi-legislative function-which results in non-binding amendments to the Federal Rules.
There are federal statues created and drafted solely by Congress. These federal statutes govern the basic structure and authority of federal courts. These statutes can be found in Title 28 of the United States Code.
D. Types of State Courts
Completely separate from federal courts. Each of the 50 states has its own hierarchical judicial system with most having the same three levels as above:
·        State District Courts-including the lower county and municipal course
·        State Appellate Courts-some courts don’t have this one, they would appeal directly to the State Supreme Court.
·        State Supreme Court
E. Important Civil/ Criminal Law Distinction
Criminal-Defendants that are found “Guilty” can be put to death, fined, put in jail, ordered to perform community service or put on probation.
Civil-Defendants in civil cases that are “held liable” are asked to pay damages to the other party as a “remedy,” or to refrain from the conduct
F. Two types of Civil Remedies:
1.)    Legal remedies-money
2.)    Equitable remedies-where the court asks the other party to refrain from doing certain things-this called an injunction: a restraining order is a type of injunction.
Remedies are the plaintiff’s goals and objectives.
 G. Parties
·        In criminal law the defendant accused of committing a crime, harmful to society as a whole. The government seeks to punish the criminal’s actions against society. The government brings the suit. Instate crimes; a DA prosecutes, while in federal crimes a U.S. Attorney from US DOJ prosecutes. Victims to crimes are not parties they are only witnesses for the prosecution (state)
·        Civil law is where two parties: plaintiff and defendant litigate a legal dispute. A plaintiff is the one who sues. A party to a civil suit can be the following: person, group of people, a government agency, state, foreign government, city, county, special district, and business partnership, association-like a labor union or church and also a corporation. It is a claim by one party that another party did not carry out their legal duty
H. Standards of Proof
·        In criminal law the defendant can be convicted only if the jury or judge believes that prosecution has proven guilt beyond a reasonable doubt. This is a high burden of proof to meet. In federal court a jury verdict must be unanimous. There can be no reasonable doubt. Judge must be quit certain-95%. If the jury can not agree (hung jury) then the judge must call a mistrial and the prosecution would have to present the case to another jury if they wanted to try again.
·        In a civil case the plaintiff wins if a “preponderance of the evidence”- more likely than not, shows that the defendant failed to perform a legal duty and that the defendant violated the plaintiff’s rights. Preponderance of the evidence means more of the evidence than not 50.00001%. Judge merely decided for the party that can tip the balance in their favor.
I.Who has the Burden of Proof
In criminal cases the burden of proof is on the prosecution to prove beyond a reasonable doubt. And the defendant doesn’t have to prove anything not even innocence.
·        In a civil case the burden of proof is usually on the plaintiff to prove by a preponderance of the evidence that the defendant is liable. In civil cases the burden of proof can change when the defendant admits guilt or when they counterclaim. Then the defendant would have to prove their burdens.
J.Two components to the burden of proof:
1.)    Burden of production-plaintiff must produce some evidence to substantiate the claim or the judge directs the jury that the elements of that claim do not exist.
2.)    Burden of persuasion- at the close of evidence do the facts exist beyond 50% if not then there is no claim.
Some claims give rise to both a civil and criminal claim, this is not double jeopardy.
·        One last difference-the right to a speedy trial. Criminal trials may go to case as fast as 60 days. There is no corresponding right to a speedy trial in a civil case.
II. Jurisdiction
Jurisdiction-in order to hear and rule on a case a federal court must have the authority to do so, hence the meaning of “Jurisdiction.” Does the court have the power to render a judgment over the parties? This includes legal authority over:
a.      the type of issue (subject matter jurisdiction)
b.      the parties involved (personal jurisdiction)
1.Personal Jurisdiction-courts authority over the plaintiff and the defendant. Usually only concerns the defendant. The limitations to the courts jurisdiction is at the state borders in both federal and state court (generally speaking). Three types:
i.        “in personam”- power over the defendant (all the personal assets may be seized to satisfy judgment. Two requirements for both federal and state court:
a.      jurisdictional statute (long arm statute if out of state)-passed by legislatures. This authorizes the court in a state to exercise jurisdiction over defendants located inside and outside the state boarders. Jurisdiction over out of state defendants is based on specific types of contacts that the defendant may have with the foreign state. Generally in federal court, the state jurisdictional long arm statute of the state in which the federal court sits is applied.
b.      court must be fair to the defendant. 14th Amendment for state, 5th Amendment for federal (Due Process Clause) says that any law must be a fair one-“fair play and substantial justice.” This is defined by “minimum contacts” International Shoe (see below).
                          ii. “in rem”-power over a thing, the thing (ie property) is what is at stake. More for historical purposes.
                          iii. “quasi in rem”-where a thing is owned by the defendant and located in the forum state and is seized and used to satisfy judgment against him BUT the lawsuit is not a dispute over the possession of the thing (ie property). The thing is the excuse to get jurisdiction over the defendant. Amount at stake can not exceed the amount of the thing. More for historical purposes.
“in personam” is the most common of the three and the one that we will focus on. Also, strategically it is the best because the court has the authority over the person and ALL of their assets.
1. Look at the Long Arm Statute
·              If exclusive federal question don’t have to satisfy the long arm statute.
·              If diversity or concurrent jurisdiction you do have to satisfy the long arm statute
2. Traditional Test: Look at this first
1.      Physical Presence- when a defendant is physically present when receiving the summons and complaint; “got served” in the state then that state is considered to have jurisdiction over him. S

elaware, Principle place of business in Missouri. They contracted employees who lived in Washington and there was in fact to be found activity that was consistently done in Washington, even though the corporation was not present there.
Procedural History: all lower courts said service was fair and there was personal jurisdiction.
Issue: was service fair and was there personal jurisdiction in the state of Washignton.
Rule: due process clause of the 14th amend.
Analysis: substantial activity by the corporation during the years in question to establish minimum contacts and thus service of process was fine as well.
Conclusion: enough minimum contacts and therefore service of process is correct.
McGee v. International Life Insurance Co. p. 84
US Supreme Court (1957) 
McGee wins
Purposeful Availment- sufficient because the connection to the state was continuous.
Analysis: court held that where insurance contract was delivered in California, premiums were mailed from there, and insured was resident of California at time of death, due process did not preclude entry of judgment against Texas insurance company by California court.
Hanson v. Denckla p. 85
US Supreme Court (1958)  
Defendant trust Company wins
Purposeful Availments-was no voluntary act by the defendant  and was not foreseeable that they would get sued there.
Conclusion: the Florida court had  no personal jurisdiction over the trustee and no jurisdiction over the trust because there was no record that the trustee performed any acts in Florida, no company in Florida, didn’t transact or solicit business there.
Unilateral Act- defendant independently, voluntarily does something
Shaffer v. Heitner p. 86
US Supreme Court
Shaffer wins
No In Rem anymore have to use minimum contacts test. Owning property in a state is important but that is just one factor. Can get to FAIRNESS (Ultimate goal) two ways 1.) minimum contacts 2.) other factors
Conclusion: held that Delaware’s assertion of jurisdiction over defendants, based solely on the statutory presence of their property in Delaware, violated the due process clause of the United States Constitution.
Derivative Action  Rule 23.1 similar to class action, A suit by a stockholder on behalf of a corporation to enforce a corporate right or remedy a wrong. The corporation is a necessary party to the action and recovery is made to the corporation. This action is needed b/c Directors are not going to sue themselves.
Fiduciary Duty-to act on behalf half in good faith
Next Four Cases are Specific Jurisdiction Cases Worldwide-Pavlovich:
Specific personal jurisdiction-relatedness, even if slight, of the defendants contacts (quality). How related or unrelated are the contacts with the forum state to the subject of the lawsuit? can only sue on that particular claim.
Worldwide Volkswagon Corp. v. Woodson p. 98
US Supreme Court (1980)
Worldwide wins
Take into consideration other factors, such as does the defendant do business there to get to purposeful availment
Analysis: No minimum contacts, Petitioners carry no business in Oklahoma, respondents seek to base jurisdiction on one isolated incident. No Purposeful Availment, No Forseeability, defendant must foresee being hauled into court. Can only be sued where the product is sold, not just used.
Conclusion: no personal jurisdiction over Worldwide, b/c no minimum contacts.
Stream of Commerce really about selling a component part of a product that is incorporated and sold somewhere else (still making money off of the sale because a market created by that sale.)
Foreseeability on getting sued there because of your activity with the state.
Asahi Metal Industry Co. v. Superior Court p. 107
Us Supreme Court (1987)
Asahi wins
Unreasonable does not get you to personal jurisdiction (reasonable as another factor to consider)
“traditional notions of fair play and substantial justice”: International Shoe v. Washington quoting Milliken v. Meyer, required for personal jurisdiction. Mere awareness that your product has entered the stream of commerce is not enough for personal jurisdiction.
Analysis: No fair play and substantial justice, we are dealing with international players and the case could have been brought in another court, oversees. To burdensome on the defendants.
Conclusion: Supreme Court say mere awareness is not enough
Burger King Corp. v. Rudzewicz
US Supreme Court (1985)
Burger king wins