Civil Procedure Commons^™

Town Of Barnstable V. O’Connor, Taylor R. Thompson

Public Land & Resources Law Review

The United States Circuit Court of the First Circuit’s decision in Town of Barnstable v. O’Connor reignites a hotly debated offshore wind plant proposal. The First Circuit held that the Ex parte Young exception to the Eleventh Amendment applied because the complaint alleged an ongoing violation of federal law and the relief sought was prospective. The court did not discuss the merits of the claim, so the fight against the proposed wind plant powers on.

In Rem Jurisdiction; Due Process; Minimum Contacts; State Statutes; Shaffer V. Heitner, Richard S. Milligan

Akron Law Review

The decision of Shaffer v. Heitner marks a significant departure from established principles concerning in rem jurisdiction. No longer may a court take jurisdiction of a lawsuit merely by sequestering any property of the defendant that happens to be located in that state.

In Rem Jurisdiction; Attachment Of Insurance Debts; State Statutes; O'Connorv. Lee-Hy Paving Corp., Eloise Lubbinge Mackus

Akron Law Review

The United States Court of Appeals, Second Circuit, in O'Connor v. Lee-Hy Paving Corp., upheld New York's insurance attachment procedure which serves as a vehicle for gaining personal jurisdiction over out-of-state defendants in causes of action that arise outside of New York. The court thereby determined that New York federal courts, in applying the procedures, had not violated defendant's due process because the minimum contacts requirement of the recent United Stated Supreme Court case, Shaffer v. Heitner, had been met.

Quasi In Rem Jurisdication; Minimum Contacts; State Statutes; Intermeat, Inc. V. American Poultry, Inc., John D. Frisby Jr.

Akron Law Review

"The decision of Intermeat, Inc. v. American Poultry, Inc. is the first decision rendered by a federal appeals court based on the United States Supreme Court decision of Shaffer v. Heitner. The Shaffer Court handed down a landmark decision in 1977 that appeared at first light to aim the principles of quasi in rem jurisdiction in a new direction. From the date of the decision it appeared that a court could no longer take jurisdiction of a lawsuit based merely on the fact that property of the defendant was located in the state in which the suit was filed. However, …

17th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2015, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Local Rules Of Court, J. Patrick Browne

Akron Law Review

In the vast majority of cases, the Ohio Rules of Civil Procedure will be the primary source of authority governing the practice and procedure to be followed. But in some instances, the primary source of authority will be statutory, and the applicable sections of the Ohio Revised Code may or may not be supplemented by the Ohio Rules of Civil Procedure.

The Citizen's Relief Against Inactive Federal Officials: Case Studies In Mandamus, Actions "In The Nature Of Mandamus," And Mandatory Injuctions, Howard W. Brill

Akron Law Review

Historically, the citizen-plaintiff would have sought the common law writ of mandamus if he were able to scale, or avoid, the threshold barriers of standing and sovereign immunity. This article will examine briefly the history of the writ of mandamus, the requirements for issuance of the writ, and the defenses accepted by courts to deny its issuance. The article will focus specifically on the unique position of the writ in federal courts, including its abolition by the Federal Rules of Civil Procedure.

Failure Of Commencement, The Forgotten Defense - A Comment On Ohio Civil Rule 3(A), Virginia L. Scigliano

Akron Law Review

This article will provide an in depth analysis of Rule 3(A). The analysis is divided into four sections. The first section examines the historical development of Rule 3(A) and the problems that developed and exist today. Section two discusses the meanings and specific interpretations given to the language of the rule. The unstated prerequisites of existence and capacity are analyzed in section three. And, in section four, Rule 3(A)'s forgotten defense is discussed and a model is developed for using the defense of failure to commence.

Procedural Defenses Available To The New-Party Defendant: The Necessity Of Obtaining Leave To Amend And Relation Back, F. Thomas Vickers

Akron Law Review

The application of the Rules of Civil Procedure to these various situations has been the subject of much judicial attention. In this regard, two issues have provoked the greatest amount of controversy, to wit: (1) whether leave of court is required prior to amendment of the complaint to add a new-party defendant, and (2) when and under what circumstances may a new-party defendant be brought into a civil action after the statute of limitations applicable to the claim asserted against him has expired. It is upon these questions that this paper is primarily focused.

Refereeing The Referees: The Continuing Procedural Muddle In Cases Of General Reference Pursuant To Ohio Rule Of Civil Procedure 53, Richard P. Perna

Akron Law Review

The judicial reference device set out in Rule 53 of the Ohio Rules of Civil Procedure was touted in 1974 as a procedure capable of relieving the "problem of justice delayed" by "easing the increasing judicial burden" on a besieged judiciary." While judicial reference is certainly no panacea for the problem (if numbers alone are a valid indicator), it is difficult to refute claims that the reference device contributes to a more efficient and speedy administration of justice.

Local Number 93, International Association Of Firefighters V. City Of Cleveland: A Consent Decree Is Not An Adjudicated Order For Purposes Of Title Vii, Paul Leslie Jackson

Akron Law Review

This note will examine the decision of the United States Supreme Court in Local 93, International Association of Firefighters v. City of Cleveland, and explore its potential implications in future Title VII actions. The issue the Supreme Court had to decide was whether a consent decree is a form of court ordered relief for purposes of Title VII litigation.

Batson V. Kentucky: Can The 'New' Peremptory Challenge Survive The Resurrection Of Strauder V. West Virginia?, Brian Wilson

Akron Law Review

It cannot be denied that our jury selection process has lent itself to invidious racial discrimination in the selection of jurors who ultimately decide the black defendant's guilt or innocence. This practice manifested itself in a line of decisions, beginning with Strauder v. West Virginia. The Strauder Court held that excluding qualified venirepersons on the basis of race violated the fourteenth amendment. However, the Supreme Court's refusal in Swain v. Alabama to subject petit jury peremptory challenges to constitutional scrutiny spawned much criticism from courts and commentators. As a result, the Court in Batson v. Kentucky decided to re-examine …

The Recent Amendment To Ohio Revised Code Section 2317.48, Kim M. Aumiller

Akron Law Review

Revised Code § 2317.48 was designed to enable a plaintiff to obtain information necessary to the drafting of a complaint. This discovery statute is one of the few statutes which was not repealed with the enactment of the Ohio Rules of Civil Procedure in 1970.

What one will not find, however, is the precise procedure to be followed in utilizing this discovery action. The procedural statutes which existed in the Revised Code were repealed upon enactment of the Civil Rules. Since then it has been difficult to know which procedural rules apply to Revised Code § 2317.48. Before the enactment …

Due Process As Consumer Protection: State Remedies For Distant Forum Abuse, Alan K. Chen

Akron Law Review

This article takes the position that distant forum abuse is a practice which should be and can be halted by the employment of state consumer protection statutes. The article first lays out a history of distant forum abuse and its role as a tool for debt collection harassment. Next, it examines legal developments in this area at both the federal and state levels, and explains the need for a more wide-reaching remedy in most jurisdictions. The third section briefly addresses important aspects of procedural waivers under contract law which must be taken into account by policy-makers when fashioning new remedies …

Ohio Jury Interrogatories: Civil Rule 49(B), Joyce J. George, Michael A. Partlow

Akron Law Review

Ohio's Civ. R. 49(B) permits parties to submit interrogatories to the jury in order to test the jury's thinking in rendering a verdict. Unlike traditional jury interrogatories, the rule limits interrogatories to subject matter normally associated with the special verdict. For centuries the use of the special verdict has plagued the legal community with confusion. The practitioner, the jury and the trial judge have each had difficulty in a variety of ways when the special verdict is involved.

Developing Standards For The Imposition Of Sanctions Under Rule 11 Of The Federal Rules Of Civil Procedure, Adam H. Bloomenstein

Akron Law Review

This article will argue that the standard for imposing sanctions under Rule 11 should focus on the nature of the conduct alleged to violate the rule. Sanctions under the rule can be triggered by different types of conduct. Certain types of conduct should be scrutinized more closely, requiring the imposition of sanctions more frequently. Factors such as whether a party subject to Rule 11 sanctions is acting pro se or through counsel should also impact on a decision to assess sanctions under Rule 11. Each type of conduct should be evaluated under an independent set of standards. Part I will …

Forum Shopping For Stale Claims: Statutes Of Limitations And Conflict Of Laws, Sam Walker

Akron Law Review

This article, however, has a modest goal. It will not argue for rationality or for a new interests analysis, as some scholars have done, or for consistency or for the adoption of one or the other of the proposed solutions. It will review the interstate and international aspects of statutes of limitations and examine the unique role of statute "havens" focusing not on criticism, but prediction. The most recent decisions by the United States, New Hampshire and Mississippi Supreme Courts indicate that discussion of what will, or what could, happen may be more valuable than discussion of what should happen …

Don’T Forget About The Jury: Advice For Civil Litigators And Criminal Prosecutors On Differences In State And Federal Courts In New York, Ariel Atlas

Cornell Law Library Prize for Exemplary Student Research Papers

In civil cases, forum selection has become an integral part of litigation strategy. Plaintiffs have the initial choice of where to file a complaint, and thus where to begin a lawsuit. Defendants have the power to remove cases, under circumstances prescribed by statute, from state court to federal court. Many factors enter into the decision of where to file a complaint or whether to remove a case including convenience, applicable law, and suspected biases. But what about the jury? Should a plaintiff consider characteristics of the jury when deciding where to file a complaint or a defendant in a civil …

Procuring Trial Testimony From Corporate Officers And Employees: Alternative Methods And Suggestions For Reform, Richard J. Oparil

Akron Law Review

This article discusses the situation under the current Federal Rules of Civil Procedure, including some alternative methods of obtaining testimony at trial. The article then discusses various ways the problem could be solved through rule changes to help ensure live trial testimony by corporate officials.

Ohio Appellate Practice Before And After Polikoff: Are Things Really All That Much Clearer?, Michael L. Buenger

Akron Law Review

Perhaps no topic in Ohio appellate practice is more confusing than determining what constitutes a final, appealable order in a special proceeding. ... The ability of a litigant to obtain immediate review of a trial court order may hinge on an appellate court resolving the difficult question of whether the proceeding from which the order emanated constituted a special proceeding under Ohio law.

The Supreme Court of Ohio, recognizing the difficulty in determining finality in a special proceeding has, like the appellate courts, struggled to articulate clearer guidelines and a more precise standard for resolving the question. The supreme court's …