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Civil Procedure II
University of Maine School of Law
Petruccelli, Gerald F.

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

Judicial power – Who has it? What courts have power to adjudicate disputes (i.e. jurisdiction)?
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.
Obtaining finality – The more that happens to a lawsuit in different courts, the harder it is to undo.
Costs – Every lawsuit has its costs, monetary or non-monetary.
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

Identify and apply “Black Letter” procedural rules – some rules is rules (c.f. FRCP Rule 8). Know them.
Determine the doctrinal and policy implications of the rules.
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.
Develop a critical perspective: how do we limit frivolous lawsuits?
Skill: be able to read cases critically for procedural issues. In this course, we’re concerned with procedure and not substance.

Personal jurisdiction

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 money back from Epstein. What must the jurisdictional issues be? North Carolina, the Supreme Court rules, must enforce the Maryland judgment, because personal jurisdiction was obtained over Balk when Harris entered Maryland.

We’re trying to figure out if debts are a personal obligation or in rem obligations. The Court says that the debt travels with the debtor, making the creditor subject to personal jurisdiction wherever the debtor goes. If one is a creditor, that sucks because if you lend people money, and then you’re subject to personal jurisdiction wherever that person goes, and thus you might get sued anywhere that debtor goes. I, the creditor, am in big trouble!

Hess v. Pawloski– An out-of-state defendant gets into an accident. In order for the person who got hit in Massachusetts to sue, they must serve the person that hit them personally in Massachusetts. So, Massachusetts passes a statute that says that when you drive on Massachusetts roads, you implicitly consent to Massachusetts jurisdiction. This case would be decided the same way today.

Minimum contacts

International Shoe Co. v. Washington – Shoe introduced our modern concept of personal jurisdiction, which involves “minimum contacts” and “traditional notions of substantive justice and fair play”. Shoe asks: Is it fair?
Under what conditions is a corporation subject to personal jurisdiction in a particular state? The Court interprets the due process clause and the Fourteenth Amendment to mean that if a company has “minimum contacts” in a state, they may be subject to being sued in that state.

What is the modern test? We have a brand new test for personal jurisdiction! It’s the minimum contacts test. If the defendant is out of state, yet has certain minimum contacts within a jurisdiction, we will determine whether that court has personal jurisdiction based on “traditional notions of fair play and substantial justice”.

Expanding Shoe to cover in rem

Shaffer v. Heitner – Shaffer seeks to make Shoe the standard for more or less all jurisdictional questions. In a quasi in rem action, specific jurisdiction depends on how closely related the defendant’s contact to the forum is to the claim itself. Does the Delaware court have jurisdiction over the defendants or their property or both? NEW RULE! The Shoe model should be applied to jurisdiction in rem as well as in personam. Shoe seems to deal with in personam jurisdiction rather than in rem jurisdiction. The present case is about in rem jurisdiction, therefore, on its face, Shoe doesn’t seem to apply to Shaffer.




Pennoyer + Harris = if 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

ween the parties. There’s one thing we know for sure from this case: Simply making a contract with an out-of-state defendant is not enough to create sufficient contacts.

For our purposes, we may think about specific jurisdiction as a two-part test: (1) Check for minimum contacts, then go on to (2) fair play and substantial justice. We’re two years before Asahi, which reasserts this threshold test. However, the Court also says “If it’s really, really fair to exercise jurisdiction, we can let it slide by with less contacts than we normally would.”

Rule 4(k)(2)

A federal court can generally hale a defendant if state courts in the state where the federal court is located also have personal jurisdiction over that defendant. In other words, the federal court’s jurisdictional reach is equal to that of a trial court (a court of general jurisdiction) in that state.

The thing that really interests Fairman is Rule 4(k)(2): If you’ve got minimum contacts and fair play, then you can summon or take a waiver of service from somebody who can’t be brought into any state’s trial court (court of general jurisdiction). There could be foreign defendants, let’s say businesses, that aren’t subject to the general jurisdiction of a specific state court. That means it lacks minimum contacts with any one state. However, maybe you have minimum aggregated contacts with the country overall. “This is a weird rule!” It posits an exception to our usual territorial concept of personal jurisdiction.

Personal jurisdiction on the internet

The “Zippo” test has been adopted by most courts of appeal. Zippo does to Internet cases what other cases have done to other industries. You might use “stream of commerce” for manufacturing; with Internet stuff, you use Zippo. Zippo proposes that there is a spectrum of websites from “passive” to “active”. Active websites sell things, while passive websites just show you stuff. There’s no personal jurisdiction if a site is passive. There is personal jurisdiction if the site is active. However, in reality, everything is intermediate and you must do a factual analysis as to the level of interactivity of the site and the jurisdictional consequences that follow.

General jurisdiction

General jurisdiction is usually easy! It’s hard to find hard cases on general jurisdiction. Specific jurisdiction is the easy route; general jurisdiction is the hard route. General jurisdiction requires continuous and systematic contacts. You must have more of a relationship with a forum to constitute general jurisdiction than to be subject to specific jurisdiction. Think of general jurisdiction as “super contacts”.

Washington Equipment Manufacturing Co. v. Concrete Placing Co. – The defendant corporation is based in Idaho. To do business in Washington, it had to obtain a certificate of authority and register an authorized agent. Did the defendant consent to general personal jurisdiction when it got the certificate and registered an agent? NEW RULE! In Washington, by statute, compliance with mandatory requirements in order to do business in Washington does not impose personal jurisdiction on a foreign corporation.

Helicopteros v. Hall – Is it consistent with the Due Process Clause of the Fourteenth Amendment for Texas to assert personal jurisdiction over Helicol? Blackmun looks at the contacts individually and determines that each one in isolation is not continuous and systematic, thus there is not general jurisdiction. Fairman suggests that Blackmun should have looked at the contacts in toto. Here’s the problem: you can look at the contacts apart or together, and depending on how you do it, you’ll get to a different result.

In this case, the