Civil Procedure: What is it?
Civil Procedure deals with procedure, not substance. Civil Procedure focuses on rules. Civil Procedure is the study of the principles surrounding the resolution of civil disputes by the courts and the various tools available to a lawyer who must bring or defend a lawsuit. FRCP Rule 1 – The rules are meant to ensure just, speedy, and inexpensive lawsuits. “Fair, fast, and cheap.”
Fairman says that it’s all a balancing test between efficiency and equity. We want to do things cheaply, yet fairly. There are elements of this balance either explicitly in the courts’ opinions or the statutes that courts apply or embedded in the decisions that have to be made.
The five themes
1. Judicial power – Who has it? What courts have power to adjudicate disputes (i.e. jurisdiction)?
2. Dispute parameters – How do we take big cases and winnow them down into what’s actually going to get tried, if they get tried? The tools of setting these parameters are all procedural.
3. Obtaining finality – The more that happens to a lawsuit in different courts, the harder it is to undo.
4. Costs – Every lawsuit has its costs, monetary or non-monetary.
5. Balance between equity and efficiency – cheap & quick and fair are at odds. We can have more of one or more of the other…we need to make tradeoffs.
The five pedagogical objectives
1. Identify and apply “Black Letter” procedural rules – some rules is rules (c.f. FRCP Rule 8). Know them.
2. Determine the doctrinal and policy implications of the rules.
3. Understand the theoretical implications of the rules. We want to find truth, if there is a truth. We let them sue now, and find truth later.
4. Develop a critical perspective: how do we limit frivolous lawsuits?
5. Skill: be able to read cases critically for procedural issues. In this course, we’re concerned with procedure and not substance.
Pennoyer v. Neff – When does a state have appropriate jurisdiction over an out-of-state defendant? Pennoyer asks: Is it there? Pennoyer introduces three basic concepts that are still important today: (1) Power – jurisdiction is power, and the power of states or other jurisdictions (federal courts) to make you do what you might otherwise not do; plus limits to that power imposed by the Constitution itself. (2) Consent – If you consent to jurisdiction, these black and white rules go out the window. (3) Notice – the “concealed” strand of Pennoyer. This will eventually become a constitutional requirement. At the time of Pennoyer, we have sort of a duality of notice. For in personam jurisdiction, you need personal service of process within the state. For in rem or quasi in rem actions, you can be served by publication.
In rem – an in rem is an action where the court is trying to decide the rights in a piece of property itself (in the thing). In personam – This is also known as personal jurisdiction. This has to do with jurisdiction over a person and their personal rights and liabilities. Conceptually, think of in rem as land. If you stop thinking about in rem as land, you’ll get in trouble.
Quasi in rem – determines the rights of a person in a thing. Not the rights of the world in a thing, but the rights of specific individuals in a thing. There are two kinds of quasi in rem: (1) True quasi in rem: trying to secure a preexisting claim in the property, or extinguish someone else’s. (2) Substitute for personal jurisdiction where you apply a defendant’s property to satisfy a claim that is unrelated to property.
Collateral attack – means you start a second suit to challenge the judgment of the first suit. In collateral attack, you wait for them to come and get your property, but then you argue: “They can’t have my property! The first lawsuit wasn’t valid because they didn’t have jurisdiction!” Why use collateral attack from a strategic standpoint? It’s cheaper than hiring an out-of-state lawyer to argue on your behalf. If that state tries to enforce the judgment, they’ll have to try to enforce it in your state.
Harris v. Balk – This case would be decided differently today. Epstein sues in Maryland to get Harris to pay him. Then Balk sues Harris in North Carolina. Harris’s defense is that he’s already paid his debt to Epstein, such that Balk should get his mon
f we attach the property at the start of the lawsuit, and the property is located within the jurisdiction of the forum, then the forum has in rem jurisdiction. Now, the Court says that Shoe rules everything and Harris v. Balk is explicitly overruled! However, the basic principles of Pennoyer are not overruled.
What’s the rationale? Jurisdiction “over a thing” is sort of a euphemism for jurisdiction “over the interests of a person in a thing”. Everything is owned by somebody, so whatever or wherever the property is, we’re really trying to get power over the person through their stuff.
Is the location of the stuff relevant anymore? The test of Shoe is “minimum contacts” such that the suit does not offend the notions of “fair play” and “substantial justice”. So the location of the stuff is relevant in so far as it is a contact. In rem gave property a special status; Shoe says that property is just another contact, nothing special. We’ll just add it into the mix. The Court says that it would be unusual for a state not to have jurisdiction in a controversy over some land in a state, because that land is what it’s all about and would constitute sufficient contacts.
After Shaffer, we will still see courts talking about in rem and quasi in rem. The law says that all assertions of jurisdiction must be made according to Shoe. Shoe, in turn, encompasses in personam, in rem, and quasi in rem. Under Shoe, you don’t need to attach property to satisfy Constitutional jurisdictional principles. State law might establish other requirements when you file a lawsuit over some property. In practice, you really should attach the property.
Specific jurisdiction is jurisdiction over a specific clai