Civil Procedure Commons^™

Devising Procedures That Are Civil To Promote Justice That Is Civilized, Maurice Rosenberg

Michigan Law Review

In a democracy, process is king to a very large extent, and this is especially so in the judicial branch. Even though substantive laws command attention, procedural rules ensure respect. Why is this true? One powerful reason is that when people end up in court, their case typically is not a matter of right against wrong, but of right against right. Decent process makes the painful task of deciding which party will prevail bearable and helps make the decision itself acceptable.

To put my position plainly, I believe that the road to court-made justice is paved with good procedures. Later …

Wright & Miller: Federal Practice And Procedure, Civil Procedure, William H. Becker, W. Brown Morton Jr.

Michigan Law Review

A Review of Federal Practice and Procedure, Civil Procedure Vol. 4 & 5 by Charles Alan Wright and Arthur R. Miller

Observations On The Manual For Complex And Multidistrict Litigation, Michigan Law Review

Michigan Law Review

In recent years there has been increased pressure on the federal judicial system for improved efficiency in dealing with "the big case." Such cases typically involve either large numbers of plaintiffs, suing in many district courts on essentially the same facts, or many complex and interrelated issues which require the evaluation of large quantities of data. Because those cases require considerable amounts of judicial time which cannot lightly be spared from dealing with the mounting backlog of cases faced by virtually all courts, and because a great deal of potentially protracted litigation is certain to arise in the future, it …

Cound, Friedenthal & Miller: Civil Procedure, Cases And Materials, Arthur J. Lombard

Michigan Law Review

A Book Review of Civil Procedure, Cases and Materials by John J. Cound

Federal Rules Of Civil Procedure-Rule 19 And Indispensable Parties, Michigan Law Review

Michigan Law Review

The reformulation of compulsory joinder rules, urged by commentators for a decade, has been realized with the 1966 amendment to rule 19 of the Federal Rules of Civil Procedure. Prior to the amendment, courts consistently held that the absence from the lawsuit of persons who were "indispensable" deprived the court of power to adjudicate the action. The amendment to rule 19 is an effort to establish a methodology which requires a practical consideration of the factual situation at hand when determining the propriety of permitting a case to continue even though certain parties are not joined. A brief look at …

Federal Rule 44.1 And The "Fact" Approach To Determining Foreign Law: Death Knell For A Die-Hard Doctrine, Arthur R. Miller

Michigan Law Review

The objective of this article is to analyze Federal Rule of Civil Procedure 44.1, which was developed as part of the reforms of the last decade and became effective on July 1, 1966 and to assess its capacity to rationalize the process of determining foreign law in the federal courts. What follows is an excursion through the past doctrine and into the probable future treatment of foreign law in the federal courts, an exploration of the interrelationship between the new Rule and other phases of federal civil procedure, and an analysis of the prospect that the Rule's effectiveness may be …

Contempt-Injunctions-Federal Civil Contempt Decree Orders Deputy Sheriff To Resign From Office-Lance V. Plummer, Michigan Law Review

Michigan Law Review

During the summer of 1964, a federal district judge issued an injunction prohibiting various St. Augustine, Florida organizations and other persons with notice of the injunction from harassing or intimidating Negroes who were seeking motel or restaurant accommodations. Appellant Lance, an unpaid volunteer deputy sheriff, was not a member of any of the enjoined organizations, but he had actual notice of the order. Nonetheless, six days after the injunction was issued, he engaged in activities designed to intimidate a Negro citizen. In a subsequent civil contempt action arising from these activities, the federal district judge, asserting jurisdiction over him because …

Determination Of Federal Jurisdictional Amount In Suits On Unliquidated Claims, Michigan Law Review

Michigan Law Review

Hoping to keep federal court dockets free of petty claims and thereby to reduce the delay in bringing to trial controversies involving more substantial sums, Congress has given United States district courts jurisdiction of many civil actions arising under the Constitution, laws, or treaties of the United States and most disputes between parties of diverse citizenship only when the alleged right forming the basis of a claimant's cause of action can be valued at more than ten thousand dollars. The value of a particular claim is determined by reference to those portions of its proponent's pleading which tend to support …

Use Of Record Of Criminal Conviction In Subsequent Civil Action Arising From The Same Facts As The Prosecution, Michigan Law Review

Michigan Law Review

The overwhelming majority of courts considering the issue without the aid of pertinent legislation have held that a record of a prior criminal conviction may not be used against a convicted person in subsequent civil proceedings arising from the same facts as the criminal prosecution but to which the state is not a party. It is admissible neither as evidence of the facts underlying it, nor as the basis of an estoppel preventing the convicted party from relitigating those issues which must have been decided against him in the criminal trial for the judge or jury to have found him …

Service Of Process-Federal Rules Of Civil Procedure-Service Of Process In Italy On Alien Corporate Defendant Permitted In A Federal Antitrust Action-Hoffman Motors Corp. V. Alfa Romeo S.P.A.., Michigan Law Review

Michigan Law Review

Plaintiff, an American automobile distributor, brought suit in a federal court in the Southern District of New York against Alfa Romeo S.p.A., an Italian corporation, for violation of the Robinson- Patman and Auto Dealers' Acts. Service of process was made personally on defendant's general manager in Italy by an Italian attorney appointed for that purpose by the district court, and by registered mail as prescribed by the New York statute for extraterritorial service. Defendant moved to dismiss for lack of personal jurisdiction as to the Robinson-Patman claim on the ground that section 12 of the Clayton Act limits the territorial …

Conditioning Of Relief From Unenforceable Judgment Upon Showing Of Meritorious Defense To Claim Upon Which It Was Entered Can Deny Due Process Of Law--Armstrong V. Manzo, Michigan Law Review

Michigan Law Review

When petitioner and his wife were divorced in 1959 she received custody of their minor daughter, and he was ordered to contribute fifty dollars per month toward the child's support. The wife remarried and, two years after the divorce, joined in proceedings initiated by her new husband in a Texas court to adopt the child. The adoption petition alleged that, during the two-year period, petitioner had failed to support the child in a manner commensurate with his ability. Under Texas law, proof of such a charge against a natural father makes his consent to the adoption of his child unnecessary. …

Eleventh Amendment, Judicial Code, And Federal Rules Of Civil Procedure Restrict Ability Of United States To Implead A State In Connection With Suit Commenced By A Private Citizen--Parks V. United States, Michigan Law Review

Michigan Law Review

Suit was brought by an individual against the United States under the Federal Tort Claims Act to recover compensation for property damage alleged to have been caused by the Government's negligence in constructing and maintaining the physical components\ of a flood-control project in New York. Relying upon New York's promise to hold the United States harmless on any liability arising from damage of this nature, the Government impleaded the state. On a motion before the United States District Court for the Northern District of New York to dismiss the state as a third-party defendant, held, motion granted. The Federal …

James: Civil Procedure, Jon R. Waltz

Michigan Law Review

A Review of Civil Procedure by Fleming James, Jr.

The All Writs Statute And The Injunctive Power Of A Single Appellate Judge, Michigan Law Review

Michigan Law Review

Although section 1651 was enacted in its present form in 1948, the statutory language of subsection (a) can be traced back to the original Judiciary Act of 1789, in contrast to the terminology in subsection (b), the origins of which are obscure. It is clear, however, that both the alternative writ and the rule nisi are granted on motions ex parte and are in the nature of show-cause orders. These writs were at one time used in place of the modern summons or process and also served as a means of framing the issues to be contested before a court …

Prejudicial Reliance Upon A Trial Court's Ruling May Result In Suspension Of Federal Rules On Timeliness Of Appeals-Thompson V. Immigration & Naturalization Serv.; Wolfsohn V. Hankin, Michigan Law Review

Michigan Law Review

In Thompson v. Immigration & Naturalization Serv., twelve days after the federal district court had entered an order denying a petition for naturalization, petitioner announced his intention of making motions for a new trial and amended findings of fact. Although the motions must be filed within ten days of the entry of judgment, the judge assured petitioner they were made in ample time, and no objection was raised by the Government. Six months later the motions were denied. Within sixty days of this denial, but not within sixty days of the original judgment, petitioner filed a notice of appeal. …

Rosenberg: The Pretrial Conference And Effective Justice--A Controlled Test In Personal Injury Litigation, Edward H. Rabin

Michigan Law Review

A Review of The Pretrial Conference and Effective Justice--A Controlled Test in Personal Injury Litigation by Maurice Rosenberg

Revitalization Of The International Judicial Assistance Procedures Of The United States: Service Of Documents And Takings Of Testimony, Richard F. Gerber

Michigan Law Review

This comment will examine two aspects of such judicial assistance-service. of documents and taking of testimony-and it will analyze each from the viewpoint of assistance obtained abroad in aid of American litigation as well as assistance rendered within the United States in aid of foreign litigation. It will attempt to survey some of the problems involved in securing performance of these acts, indicate the changes in current practice which are likely to result from the revisions of the Federal Rules of Civil Procedure and the proposed amendments to the Judicial Code, and, last, suggest some additional measures which might promote …

Federal Civil Procedure-Existence Of Federal Cause Of Action For Abuse Of Federal Process, Laurence D. Connor

Michigan Law Review

Petitioner was served with a subpoena ordering him to appear before the House Committee on Un-American Activities. He subsequently brought an action in federal district court asking for damages and injunctive relief and praying that the subpoena be declared void and of no effect. He alleged it had been signed in blank by the Committee chairman and that respondent, an investigator for the Committee without delegated subpoena power, had filled in petitioner's name without authorization and caused it to be served on him at his place of employment. Petitioner also alleged that respondent intended to subject him to public shame …

The Work Product Doctrine In The State Courts, John S. Holbrook Jr.

Michigan Law Review

When the modem Federal Rules of Civil Procedure were adopted in 1938, considerable doubt and controversy arose concerning the broad provisions for deposition and discovery. That controversy can be fairly described as a conflict both of emotion and of basic philosophy. Many lawyers engaged in the daily maneuvering of the adversary process naturally tended to defend a system which put a high premium on their individual abilities. Others were able to stand back and look at the trial practice of the day with some concern for basic incongruities. Too often, they felt, the obtaining of truth in fair trials was …

Civil Procedure- Venue-Effect Of Contract Provision Fixing Venue As To Future Litigation, Robert C. Bonges

Michigan Law Review

Defendants, residents of Harris County, Texas, executed in Harris County a conditional sale contract to purchase a food freezer from plaintiff's assignor. One of the contract provisions was that any suit on the contract was to be tried in Travis County, Texas. Plaintiff subsequently brought an action on the contract in Travis County, and defendants, contrary to their agreement, requested the trial court to transfer the action to a court of proper jurisdiction in Harris County, which was the proper county for suit under the applicable venue statute. In response, plaintiff argued that, since the contract created an obligation performable …

Antitrust Civil Process Act-Requirements For A Civil Investigative Demand, Mary Mandana Long

Michigan Law Review

Petitioner sought an order from the United States District Court for the District of Minnesota modifying or setting aside a Civil Investigative Demand served upon it by the Antitrust Division of the Department of Justice. The demand was issued pursuant to the Antitrust Civil Process Act, which provides a compulsory pre-complaint procedure through which the Department of Justice may obtain documentary information upon which it can make a determination of whether there has occurred a violation of the antitrust laws. Section 1312(b) of the act requires that the demand state the nature of the conduct constituting the alleged violation, recite …

Federal Civil Procedure-Venue-Effect Of 1948 Judicial Code Definition Of Corporate Residence On Venue Under The Jones Act, Mary Mandana Long

Michigan Law Review

Plaintiff seaman, having been injured while serving on a vessel owned and operated by the defendant corporations, brought a civil action in federal district court alleging claims for negligence under the Jones Act, for unseaworthiness, and for maintenance and cure. The venue provision of the Jones Act requires that actions under it be brought in the district in which the defendant employer resides or in which his principal office is located. Plaintiff filed his complaint in the Western District of Pennsylvania although defendants were incorporated and maintained their principal offices in Louisiana. Defendants' motions to dismiss on the ground of …

Civil Procedure-Judgements-Mutuauty As Requirement For Assertion Of Collateral Estoppel Against Claimant Who Was Claimee In Prior Action, William E. Wickens

Michigan Law Review

Plaintiff corporations, the sole shareholder of which was their president, sued defendant insurers to recover for the alleged theft of the corporations' furs. In an earlier criminal action, the president (conceded by the corporations to be their mere alter ego for purposes of res judicata) had been convicted of attempted grand theft, conspiracy to commit grand theft, and the filing of fraudulent insurance claims for loss of the same furs; it was there determined that the president had staged the theft of the furs. In plaintiffs' civil action, the superior court rejected defendants' plea of collateral estoppel as to the …

The New Michigan Pre-Trial Procedural Rules-Models For Other States?, Robert Meisenholder

Michigan Law Review

The new Michigan procedural laws are embodied in a revised set of statutes and court rules which became effective January 1, 1963, after a long period of study by a Joint Committee on Michigan Procedural Revision. They abolish an anachronistic distinction between procedures in law and equity, abrogate a scattered, disorganized set of rules and statutes, and create a unified, coherent procedural system.

Federal Jurisdiction-Three-Judge Courts-The Recent Evolution In Jurisdiction And Appellate Review, Peter W. Williamson S.Ed.

Michigan Law Review

This comment seeks to analyze each decision against its historical background. No more than a proforma attempt will be made to integrate one decision with the others, for sufficient material is not yet available to predict with any accuracy the Court's ultimate achievements in this important area of federal civil procedure.

Federal Civil Procedure-Federal Rule 16-Definition Of Issues By The Pre-Trial Judge, F. Bruce Kulp Jr.

Michigan Law Review

Plaintiff instituted a civil antitrust suit against defendant in 1956. After numerous pre-trial conferences, the parties reached agreement as to the definition of only some of the issues. On other issues, however, the parties tendered different versions and were unable to reach an agreement. In a progress memorandum, the court issued a pre-trial order adopting defendant's version of the issues and rejecting the version proposed by plaintiff. The court reasoned that, under Federal Rule 16, it has the authority to adopt the formulation of issues proposed by one of the parties even though the other party is not in complete …

Federal Jurisdiction-Federal Civil Procedure-Right To Jury Trial Of Seaman's Claim For Maintenance And Cure Where Joined With Claim Under Jones Act, Edwin A. Howe Jr.

Michigan Law Review

Plaintiff seaman, having been injured while in the employ of defendant shipowner, filed an action in federal district court. Plaintiff invoked the court's federal-question jurisdiction alone, under section 1331 of the federal Judicial Code. He alleged claims for negligence under the Jones Act, for unseaworthiness, and for maintenance and cure, and demanded jury trial of all three counts. The trial court sustained the demand as to the first two counts, but ordered that the claim for maintenance and cure be tried to the judge alone, sitting as a court of admiralty. On appeal from the order denying jury trial …

Civil Procedure-Trial Practice-Introduction Of Inadmissible Evidence To Cure Improper Argument By Counsel, Arthur M. Sherwood

Michigan Law Review

In a suit to recover damages for wrongful death arising out of an automobile accident, plaintiff's counsel offered in evidence the official report of a police officer, which included the officer's opinion that defendant's parked car had contributed to the collision. Defendant's objection to this evidence was sustained on the grounds that the report was hearsay and that it set forth a conclusion which only the jury could draw. Defendant's counsel, during his summation, asserted that no police officer had said that defendant's car had in any way caused the accident. The court, sua sponte, admitted into evidence the officer's …

Federal Civil Procedure-Federal Rule 12(E): Motion For More Definite Statement- History, Operation And Efficacy, Stefan F. Tucker S.Ed.

Michigan Law Review

The purpose of this comment is to trace the history of the motion for more definite statement as provided for in the Federal Rules, analyze the reasons for granting or denying the motion, and propose an answer to the question of whether Rule 12(e) is necessary, or superfluous, as part of modern federal pleading procedure.

Civil Procedure-Trial Practice-Special Verdict Question That Can Be Decisive Only If Answered Negatively, Samuel J. Mckim Iii

Michigan Law Review

Plaintiff was severely burned by the explosion of a can of "liquid bug killer" allegedly sold to him by defendant. Four issues of fact were raised: whether defendant sold the can in question to plaintiff, the former's negligence, the latter's contributory negligence, and the amount of the damages. The trial judge submitted to the jury, over the objections of both parties, only the first issue, in the form of a single question of fact. The jury, having served three days past the end of its term and one hour past the normal time for adjournment, was instructed that a finding …