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Civil Procedure I
University of Iowa School of Law
Stensvaag, John-Mark

Civil Procedure
I.                    Introduction
ü       Concerned w/ process of commencing, litigating & deciding cases
ü       Facts of law brought together to reach decision
A.      Sources of Fed Procedure Law
1.       US Const
a.       Provides for est of some fed cts
b.       Provides that state cts must operate w/I certain parameters (due process, full faith & credit clause)
2.       Fed Statutes
a.       Enacted by Cong
b.       Est inferior fed cts & limit powers to hear certain types of cases
3.       Fed Rules of Civ Pro
a.       Starts w/ R
b.       Not statutes!!
4.       Local Rules of various Fed Cts
a.       Govern mundane matters: where/when argue motions, # of copies, etc
b.       First thing to look @ in practice
5.       Judicial opinions
II.                  Finding the Proper Court
v                                                                              Must have proper PJ, SMJ & Venue
v                                                                              The ct you are in can determine whether you win or lose; up to Π’s atty
A.      Personal Jurisdiction
v      Geographical matter determined by whether cts in a particular state can bind someone
v      2 moments SupCo got PJ right: Rush & Shaffer
v      3 reqmts for PJ
(1)     long-arm statute
(2)     statute must not violate DP
(3)     notice rsbly calculated to reach Δ
1.         Traditional basis
à Pennoyer v. Neff: Π says he has title to land, Δ says is his via sheriff’s deed, Π never actually served in orig suit b/c was non-res of state & DN appearà is void action, fraud & oppression to uphold & enforce judgment obtained ex parte HELD: prop of state m/b brought under control of ct @ beg of suit so QIR gimmick was defective; attachment: constitutionally req’d when no svc of process b/c land could be seized
a.     3 actors: Mitchell (Neff’s atty), Neff (not OR res), Pennoyer
b.       2 cases: OR state ct: Mitchell seeking fees of $300 against client Neff, M wins (judgment 2/1866) b/c Neff never showed up; Neff sells share of land to pay off M, sells to Pennoyer through sheriff’s sale for $341.60
i.         M DN use in personam in case 1; DN use these methods either
1)       presence: be found w/i state as proved through “service of process”; transient juris is presence as well (flight over state counts as presence – Grace v. MacArthur)
2)       domicile: being a resident of state is enough
3)       voluntary gen appearance: comes to ct and wants to fight on merits; special appearance is challenge to PJ not considered vol gen app
4)       actual consent in advance: allow someone in state to serve as agent for svc of process
5)       implied consent: filing a counterclaim implies you recognize claim; CC on diff subj matter counts, too
6)       “civil status”: H&W divorcing & becoming residents of diff states, can determine civil status
ii.            Mitchell DID try the following technique
a.     PJ based on Δ’s prop in state (in rem, not presence in the flesh)—Quasi in rem “gimmick” juris but led to void judgment b/c was defective use of juris
1)       b/c Neff DN own prop in state when suit started (not what ct said)
2)       b/c process published in OR no good b/c Neff wouldn’t see (also not mentioned by ct)
3)       ct said case flunked QIR & DN qualify for in personam b/c DN use IP methods
b.             OR fed ct: Neff sues P for return of land; Neff wins in tr ct
iii.            Variants of PJ
i.         True in rem: who owns the prop? Resulting judgment will bind the whole world
ii.        Quasi in rem “ownership”: same as above except not trying to bind the whole world just the parties involved
iii.      Quasi in rem “gimmick”: using presence of Δ’s prop in state as gimmick to bring suit in another matter; recovery can’t exceed asset [not good law accd to Shaffer & Rush] 2.       Expansion
v      Background to Hess
a.     SupCo would invent fictions to go against Pennoyer while acting faithful
i.         non-res motorist: impossible to get in personam or in rem
iv.            non-res business: in both of these so must invent fictions
v.            consent is what cts used to assert juris (actual or implied)
b.       Kane v. NJ: requires motorists to sign consent @ border to allow suits in NJ & if motorists won’t consent to PJ, state can exclude motorist
c.        Business/corp: state can exclude unless consent to PJ in advance (beginning of unraveling occurred under this)
d.       Flexner v. Farson: transaction of business DN imply consent to be bound b/c are nat. persons protected by privileges & immunities clause; states can’t exclude businesses in non-corp form (so businesses would just not inc); forced reevaluation of reqmt of corps (taking away PJ)
à Hess v. Pawloski: Π (PA res) crashed into Δ in MA, MA law says party can be served through registrar on party’s office if party has driven in MA (implied consent, not actual consent); Δ sued Π for damages & won, Π argues no juris b/c contradicts 14th Amendà law DN contradict 14th, state can require motorist to appoint official as an agent in order to use hwys (Kane v. NJ) and can declare party’s use of hwy as declaration
1.       Issues:
i.            Do we need to rethink Kane (state can exclude if no consent) in light of Flexner (can’t exclude if not corp bus)?
v      State can opt to keep you outà individuals can go in another state & operate (un-inc) bus w/o consent but can be reqd to give consent as motorist
v      Constitutional to use implied rather than actual consent?
v      Diff b/t formal & implied appt is not substantial
1.       actual written consent in advance (not req’d by const) choice
2.       svc on someone in state (reqd by const) no choice
2.       Hypo: what if driver sends state letter saying NO consent, how can ct find he did consent? SupCo will find PJ b/c not consent @ all, is conduct (see Int’l Shoe)
FAIRNESS MODEL: establishes conduct
à International Shoe v. Washington: Π DN have office in WA but employed workers who lived there, would set up displays/showrooms & show shoes to buyers who would order from St. Louis HQ; Δ sued Π in WA, Π argues not proper svc b/c violates 14th Amend à DN violate 14th to sue in WA b/c continuous relations of Π in WA (perm display rooms, employees w/I state, amt of merch shipped to buyers in state), not unrsbl or undue procedure; svc was OK to Π’s employee b/c employee establishes Π’s presence in WA; has min contacts
1.                   establishes min contacts test
i.      certain min contacts w/ rsbl method of notification meets reqmts; looking at activities over presence—fairness
a.       functions: (1) fairness: protects Δ against burdens of litigating in inconvenient forum; (2) sovereignty: ensures that states DN reach beyond limits imposed on them as co-equal sovereigns
How to determine PJ accd to Shoe
Systematic or continuous
Isolated (one incident)


Shoe—OK to assert PJ
Kane v. NJ; Hess; Gray v. Am Radiator
Maybe assert PJ, sometimes enough, sometimes not
Not related
Δ’s contact w/ forum state

Cause of action

ii.      vagueness
a.       Not as easy as Pennoyer’s checklist
b.       Now cases more likely to focus on “real” issues (stuff missing from Pennoyer)
c.        Further discussed under long-arm statutes
2.                   Modern centerpiece of law of PJ
i.      ct takes cases about consent & says were really about Δ’s contact w/ forum state
ii.      ct recharacterizes old cases based on Shoe’s new model
iii.      made presence no longer the exclusive reqmt but part of conduct w/ state
3.                   Reasoning OK to subject non-res Δ to PJ b/c Δ had benefits/protections of laws of state (buzzoid)
i.      Δ had option to use WA cts to enforce its rts
ii.      Everyone has right to use cts in all states to bring lawsuit but not all states can assert PJ over you
4.                   Laws that Shoe benefited from:
i.      tax structure laws (?)
ii.      crim system (no salesmen assaulted, etc) but then could you benefit anywhere you’ve been present & not been muggedàcould be sued anywhere

                                                                ii.      Quasi in rem “ownership”: same as above except not trying to bind the whole world just the parties involved
iii.      Quasi in rem “gimmick”: using presence of Δ’s prop in state as gimmick to bring suit in another matter; recovery can’t exceed asset (not limited to real estate) [not good law accd to Shaffer & Rush] b.       Over property
à Pennington v. 4th Natl Bank:
n       Three principles
1)       QIR juris may be based on presence in forum state of nonres Δ’s intangible prop/asset (key: prop of nonres Δ m/b present in forum state)
i.            Ex 1: IBM employee lives & works in NJ but IBM HQ is in NY; any earned salary is debt IBM owes employee—employee entitled to asset located in NY, a Π can attach that asset if wants to sue employee in NY
ii.            Ex 2: Iowa student takes loan from NY bank, bank can be sued in IA b/c bank has asset in IA
§         Can be used to gain juris over nonres creditor but can NOT be used to gain juris over nonres debtor (can’t sue student in NY)
iii.            Ex 3:Δ nonres of IA has savings acct here, is Δ’s prop & can serve as basis of juris
2)       QIR juris permitted even though nonres Δ’s rt to prop is disputed
i.            Ex 1: employee can be sued in NY by attaching IBM’s obligation even if IBM disputes says DN own anything
ii.            Ex 2: bank can still be sued in IA even if student says is wrong person & DN have loan
§         Recovery is limited to asset so DN want to attach asset that isn’t owed (if really mistaken student, waste of time)
3)       QIR juris permitted even if nonres Δ’s claim to prop is inchoate (not complete/solid/green tomato)
i.            Ex 1: employee has retirement plan for when he retires/diesà rt to plan is inchoate but can still attach it as asset
ii.            Ex 2: student DN have to pay bank for 5 yrs, bank’s rt inchoate but can still be sued in IA b/c have rt to asset
§         But recovery limited to asset (until tomato ripens) so why use this?
à NY Life v. Dunlevy: except for gimmick, claimant’s rt to fund (intangible) can’t be cut off w/o having first obtained in personam juris over claimant (DN hold true for land)
§         Parties: B&B: judgment creditoràgot judgment against Dunlevy in ct; Dunlevy: debtor/claimant; Ins co: “stakeholder”; Mr. Gould: Δ’s dad, adverse claimant
§         Case O: B&B v. Dunlevy: PA 1907; PJ over Δ in this case in PA b/c Δ lived there
§         Case 1: Ins co., garnishee interpleaded Dunlevy & Gould (real battle) to let ct decide so only would have to pay once; Gould showed up to argue, Dunlevy DN so they made up her side & she lost
§         Case 2: Dunlevy v. Gould & Ins co: Dunlevy wins, ins co req’d to pay twice b/c interpleader in Case 1 not binding on Dun b/c she wasn’t there
1.       PA ct in Case 1 DN have in personam juris