Civil Procedure Class Notes
Back to Pennoyer v. Neff!
Be patient! Any clarity that will come from this case will come when we get to the end, not at the beginning.
We’re got two lawsuits: Mitchell v. Neff, and Neff v. Pennoyer.
Mitchell won the first judgment by default. Mitchell has Neff’s land sold and takes the money. Pennoyer bought the land.
Neff sues Pennoyer for his land. The issue is whether the original lawsuit is valid, and in turn whether the service of process by publication was valid.
Pennoyer seems to be the good guy that got screwed! He’s bitter until his death and makes denouncements about the Supreme Court until he fades into the obscurity of history.
It’s best not to dwell on the factual detail of what happens in the lower court. There were lots of complaints lodged against what happened in the first lawsuit. Neff alleged five different errors. But the court doesn’t rely on this when it constitutionalizes jurisdiction. In fact, it ignores those defects.
Could Pennoyer sue the state? The state has sovereign immunity. What about the sheriff? That government actor would be cloaked with immunity, too.
What about attachment and attachment before the lawsuit?
Issue: When does a state have appropriate jurisdiction over an out-of-state defendant?
When is constructive notice appropriate?
Some terms you need to know
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). E.g. a probate of an estate. When someone dies, there’s an estate and the probate of that estate tries to determine the rights of everyone in the world to the rights of that estate. Another example: admiralty (boat) law. In admiralty actions, you sue in the name of the boat (in the name of the thing). Also, eminent domain actions are in rem, where the government comes in and takes property against the rights of all others in the world.
In personam – This is also known as personal jurisdiction. This has to do with jurisdiction over a person and their personal rights and liabilities.
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. E.g. foreclosing a mortgage is quasi in rem…not determining the rights of the world in a piece of property, but rather disputes between two people: the lender and the borrower. There might be others who could have interests too. Another example: specific performance, making you live up to a bargain you made in a contract (c.f. the famous Stradivarius case).
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.
Right up to today, you’ll find court opinions that talk about in rem actions that are really quasi in rem. That’s the case in the opinion in Pennoyer.
When people say in rem, a lot of the time their really talking about quasi in rem.
Later on, most of this stuff collapses in our modern constitutional concepts. But…Pennoyer’s never been overruled by the Supreme Court.
“We will see the dead hand of Pennoyer reach up through the ground and bite us!”
Personal jurisdiction includes all this stuff (even though in rem is really a different thing). But sometimes people talk about personal jurisdiction and mean in personam only.
When is publication service okay according to Justice Field? In an in rem action. There’s nothing inherently wrong with constructive service by publication.
Why? Will the defendant have knowledge of the service?
Field says that it’s assumed you’re in possession of your property. This is a very 19th century mentality. Generally speaking, this is a pretext though. It’s probably a fluke if they ever see this notice.
Really, in rem can apply only if the property is attached first.
Field’s Vision of Power and Jurisdiction
It’s a little bit different than a 21st century view of these issues.
Field has a very black and white vision of the world. Field says that a state has power over people and property in that state. (Some say “territorial jurisdiction”.)
But…a state has no power over stuff outside its borders, neither people nor property. So things courts in my state do to people and property outside of the state aren’t valid until there was some mechanism by which the courts got power over them in the first place.
Jurisdiction under Pennoyer
The land must be attached before the first suit started, because that gets you the (quasi) in rem jurisdiction over it. If you don’t get the property attached, you don’t have power over it.
The alternative is to serve
Neff personally in
That’s all Pennoyer tells us!
Under these facts, there’s no
way Mitchell could have gotten jurisdiction except to trick Neff into coming
The mobility of the American population will lead to our modern “contacts” view of personal jurisdiction.
Neff didn’t appeal the Mitchell v. Neff lawsuit. Instead, he files Neff v. Pennoyer ten years later.
Collateral attack – means you start a second suit to challenge the judgment of the first suit.
Could Mitchell have personally served Neff in a different state? No…the process of a state can’t go into another state and order those people to appear. A state only has power over people and things within the state.
This is why you can use collateral attack. You can ignore the judgment in the first lawsuit if you haven’t been served. You live to fight another day.
But if you make an appearance, the court may decide it has jurisdiction over you. If you make a “special appearance”, they can’t “gotcha” you.
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.
The merits issue: if you take a default in the first case, you never have a chance to argue on the merits, i.e. whether or not that debt was really owed.
Personal Jurisdiction under Pennoyer
- Personal service in the state
- Attach the land at the start of the 1st suit
But there are exceptions. “Welcome to the world of the law.”
Field crafts a couple of exceptions, e.g. marriage.
Tomorrow, we’ll talk about the examples on p. 86-87.