Civil Procedure Class Notes 8/20/03


Concluding comments on Gordon v. Steele


This was just an introductory case that introduced subject matter jurisdiction and diversity jurisdiction and what sources judges draw upon to form their rulings.


As a matter of law, domicile means residency plus intent to remain.  We weighed factors on each side about whether Gordon intended to stay in Idaho.  What do these factors mean for us?


What about all the sexist stuff in the opinion?  The comments were “of their time”, certainly.  Was it offensive?  What about the context of Gordon’s religion?


Should a lawyer play upon a judge’s biases to help their client?


What might have been factual then might be different now.


These are questions of both strategy and legal ethics (a topic for another course).


Does it matter if Gordon’s parents were paying her rent?  The issue of residency and intent to remain for purposes of subject matter jurisdiction and diversity jurisdiction has nothing to do with residency for admission or fees at a university.  In other words, this isn’t the same matter as when you figure out if you’re paying resident or non-resident tuition.  Your parents’ support doesn’t matter in regard to intent to remain.


Why did the defendants bring this motion to dismiss?  There are several possibilities.  There may be a two-year statute of limitations, so the defendants wanted to drag things out.  The plaintiffs filed in federal court because they thought it would give them an advantage as far as the federal rules of evidence, so the defendants would like to not be subject to these rules.  If you can crank out all the ethical pre-trial motions, maybe you can out-wait the other side.


Coming up…Rule 12 motions


Pennoyer v. Neff


It’s an old case, it’s hard to read, it’s a classic case.  Many books begin with this as the first case.  It’s traditional!  It’s an historically important case.


We want to look at the historical roots so we can see where the modern concepts come from.  In fact, Pennoyer has not actually been overruled.  It’s not completely history.


We’re in Oregon.  How many lawsuits are involved in this case?  We have two of them.  That’s confusing.  Steve gives us some notes to help us try to sort it all out, but we’re not sure if he does a great job.


Who’s in the first lawsuit?  Mitchell is an attorney who is suing Neff for not paying legal fees.  Neff hired Mitchell to help him get a federal land grant.  We go to state court in Oregon and get Mitchell v. Neff.


The lawsuit is over the unpaid legal fees (payment of a debt).


Notice: how does Neff know he is getting sued?  They printed it in the paper.[1]


Mitchell wins by default because Neff doesn’t show up.  “Those are great!  You almost always win those.”


Ex parte - without the other side.


What happens next?  Mitchell’s won the lawsuit.  Now Neff buys a tract of land in Oregon after the lawsuit is over.  Mitchell has his judgment for a certain amount of money, but it’s worthless unless you can collect on the lawsuit.  You want to usually check before you file a lawsuit if you will actually be able to collect.


Neff didn’t have anything before, but now he does.  Mitchell wants to attach (seize) this land in order to satisfy his judgment.  Pennoyer buys the land at the sheriff’s sale.


Does it matter that Pennoyer…wait, what did he do?  There were shenanigans.  It doesn’t matter who bought the land at the sheriff’s sale.  (Mitchell was the only buyer at the auction and he paid exactly what he was owed.)


Mitchell is trying to use this new property to satisfy his judgment.  So Pennoyer gets the sheriff’s deed, and Mitchell gets the cash.


-         Can Mitchell attach the potential for future land?  No.  But Mitchell knows Neff is going to get the land because he helped him to get the land.  Neff was Mitchell’s client.  Didn’t Mitchell have contact information for Neff?

-         When you attach property, you sell it all, then give the excess money to the original owner.


Now…Neff’s back!  He says “get off my land, Pennoyer!  Look at this piece of paper!”  Pennoyer says, “No, it’s my land!  Look at my piece of paper!”


So Neff sues Pennoyer in federal court in Oregon.  This is now Neff v. Pennoyer.  Neff wants the land back!  This is the issue that goes to the Supreme Court.


Neff wins over Pennoyer in the second lawsuit.  Pennoyer appeals!  Now we’ve got Pennoyer v. Neff.


What was the basis of Neff’s lawsuit?  It’s that Neff never got notice of the first lawsuit, thus the first lawsuit isn’t valid, thus the judgment isn’t valid, and thus the land shouldn’t have been sold.


Pennoyer’s defense is that process was properly served.


What’s service of process?  The method by which you notify someone about a lawsuit.  Process is the papers themselves.  By FRCP Rule 12, you can get cases dismiss by invalid service of process or invalid process.  Sometimes you need to present a summons and a complaint, sometimes just the complaint, even sometimes just the summons.


Didn’t Oregon law only allow constructive service of process only when the non-resident owned property in Oregon?  Well, the lawsuit was decided by default, so it didn’t come up.  This doesn’t matter in the Supreme Court, either, because it becomes a constitutional deal.


Two ways to serve someone process: you can serve them personally, or you can serve them constructively.  Not everybody is so accessible.


You can be served process by certified mail.  You can also be served by publication, and that’s what happened in Pennoyer.


What if someone is evading service?  You can ask the judge to let you do an alternative form of service, like nailing something to their door.  (You have to follow the method of service prescribed by the court, though.)


Keep in mind that there were no Federal Rules of Civil Procedure in the 1800s.  The federal government would have used the state rules.  Today, Rule 4 would tell you exactly what to do.


Mitchell is kinda slimy.


Pennoyer gets screwed.


What’s the point of having a “special appearance”?  This is a fiction we allow so we can let you challenge whether or not a court has jurisdiction over you.  This is an alternative to “collateral attack”.


More on Pennoyer tomorrow.


Back to Class Notes

[1] Is service of process the same thing as a summons?  Maybe.  Depends on how process is defined in the jurisdiction that you’re in.