HOLDINGS
Barbara Glesner Fines
Civil Procedure
Summer 2013
While it may be very difficult to say what the correct holding of a case is, there are stronger and weaker
approaches to interpreting the holding of the court. Here are some examples of holdings from
Pennoyer v. Neff, 95 U.S. 714 (1878), that may help you evaluate and improve your own case
interpretation skills.
WHAT THE COURT CALLS A HOLDING may or may not actually be the holding in the sense of
accurately forecasting the facts and rationale that will ripen into the rule from the case. For example,
here is the holding as stated in the syllabus 1 of the Supreme Court’s opinion:
Except in cases affecting the personal status of the plaintiff, and in those wherein that
mode of service may be considered to have been assented to in advance, the substituted
service of process by publication allowed by the law of Oregon and by similar laws in
other States where actions are brought against nonresidents is effectual only where, in
connection with process against the person for commencing the action, property in the
State is brought under the control of the court and subjected to its disposition by process
adapted to that purpose, or where the judgment is sought as a means of reaching such
property or affecting some interest therein; in other words, where the action is in the
nature of a proceeding in rem. 2
This is really more about cases that weren’t before the court – status, consent, in-rem actions – than it is
about the attempt to use property and publication service as a means of obtaining an enforceable money
judgment. Thus, while it captures what the court would like the rule to become in a broad range of
cases, its value is limited as a statement of the precedential power of the case.
NARROW AND BROAD HOLDINGS
One variation in holdings is whether you read a case very narrowly – focusing on the specific
facts and outcome of the particular case and including as many facts as are arguably relevant to the
court’s ratio decidendi (rationale for the decision) – or broadly – characterizing facts very broadly and
interpreting fewer facts as critical to the outcome.
1
The following disclaimer now appears in Supreme Court opinions: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of
the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. United
States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 (1906).
2
Syllabus by the Court in Pennoyer v. Neff, 95 U.S. 714 (1878)
Here is an example of a very narrow holding in Pennoyer v. Neff
IF
a. A plaintiff brings an action for damages for breach of contract
b. against a non-resident individual (Neff)
c. service is by publication
d. but the non-resident’s land was not attached
e. even though the non-resident may have actually owned land in the state at the time of
the lawsuit
f. and the non-resident did not consent to the court’s exercise of jurisdiction
THEN the default judgment the plaintiff (Mitchell) might obtain in that action is void for lack
of personal jurisdiction and title acquired through execution of the judgment against
property within the state does not provide valid title to the subsequent purchaser of that
property (Pennoyer).
To broaden this holding, we might remove some of the facts that we are predicting are essential
to the case or broaden the characterization of the facts to include other situations. For example, how
important is it that this was an action for damages? What if it had been an action to divide property that
Mitchell co-owned with Neff? Was it important that Neff may have actually owned property in the
state at the time of the suit? Would attachment still have been necessary? How essential is it that this
case involves a separate suit to attack the validity of the first judgment? How essential is it that this
was land?
AFFIRMATIVE HOLDINGS FROM NEGATIVE RESULTS
When a court decides that the facts of a case do not permit the court to exercise personal jurisdiction,
all we know for sure is what doesn’t work – we can only guess, from the court’s reasoning, what would
work to acquire jurisdiction. Yet students want to move quickly from holding to rule and turn a
negative into a positive. Thus, we might find many holdings that look like this:
A court may enter a judgment against a non-resident only if the party 1) is personally
served with process while within the state, or 2) has property within the state, and that
property is attached before litigation begins (i.e. quasi in rem jurisdiction). 3
There’s nothing particularly wrong with trying to synthesize the positive rule out of the case, but the
problem is that which one always faces when using case-based reasoning: the conclusion is only a
prediction. So, for example, the Court in Pennoyer v. Neff said that a non-resident is subject to
jurisdiction is personally served while within the state, but subsequent courts could have merely
dismissed that statement as dicta because Neff was not in fact served while present in the state.
3
http://www.lawnix.com/cases/pennoyer-neff.html
WRONG HOLDINGS
In an effort to find broad principles of clarity where they do not exist, or as a result of cursory reading
of the cases, some students generate very poor holdings. Here are some examples of holdings to be
found on case briefing websites that are misleading at best.
•
No personal jurisdiction can be had over defendants who are physically absent from the state or
have not consented to the court's jurisdiction.4
Well, as the statement of a rule from Pennoyer, this is simply not true, because we know that the
court suggested that some form of in rem jurisdiction could be exercised if property had been
attached at the beginning of the suit. Part of what makes this a bad holding is the imprecise use of
language. I suspect this student is confusing the terms “in personam jurisdiction” and “personal
jurisdiction” and is trying to say that in personam jurisdiction cannot be had over non-resident
defendants. This is at least closer to correct, especially when we see the author using the term
“physically absent” (because, of course, even nonresidents could be subject to in personam
jurisdiction if served while physically present in the state). The problem is that the student hasn’t
grasped the significance of the difference between being a resident (because that means citizenship)
and physical presence. Pennoyer was a case about acquiring jurisdiction over a non-resident not
just a physically absent defendant.
•
It is NOT legal for a State to enter judgment against a non-resident for an action in personam. 5
Well, well! This is certainly strongly stated isn’t it? As Aaron Burr was known to say "Law is
whatever is boldly asserted and plausibly maintained." But then, he also was tried for treason and
indicted for murdering Alexander Hamilton in a duel, so perhaps not the best role model for
lawyering. So while boldly stated, the holding isn’t plausibly maintained. First, to say that it is not
“legal” for a state to enter judgment implies that it is “illegal” – that is, that the state could be
subject to liability for entering judgment – which isn’t true. Second, we know that there are at least
two circumstances in which a court could enter a valid in-personam judgment against a non-resident
defendant: consent and service while personally present in the state.
•
The issue is whether judgment for money rendered in the State court of Oregon against Neff, then a
non-resident of the State, without service of process, or his appearance was without any validity,
and the authorization of a sale of the property was without due process of law? The holding was
Yes.6
Close but not quite. This holding (phrased as an issue and answer, which is fine) focuses on the
facts of the case and gets them mostly right. But the legal terms of art (the “phrase that pays”) are
not precisely used. The use of “service of process” is sloppy because, technically speaking,
publication is a form of service of process. Likewise, “appearance” is not the precise exception,
because most states permit a limited appearance, which permits a defendant to contest jurisdiction
4
http://en.wikipedia.org/wiki/Pennoyer_v._Neff
http://casebriefnation.blogspot.com/2012/10/pennoyer-v-neff-1877.html
6
http://www.4lawschool.com/civil/neff.shtml
5
without consenting. Finally, the source of law was not due process, as the 14th Amendment hadn’t
been passed at the time the initial judgment was entered. The court relied on principles of public
law as its primary authority – all the discussion of due process was merely dicta – important dicta,
but dicta nonetheless.
HOLDINGS ON ISSUES THAT WE AREN’T STUDYING
Remember that there can be multiple issues (and therefore multiple holdings) in any given opinion.
Focus on the holdings that are relevant to the subject under study. So for example, the textbook’s
edited version of the opinion includes some discussion of the use of service by publication on page 684
and one might craft a holding that addresses the issue of notice (which would be very relevant to our
study when we return to service of process issues again later). For example:
If a defendant is served through publication in an action that does not involve title to a particular piece
of property, unless that property is attached, publication service is insufficient to inform the defendant
of the cause of action.
However, while constitutionally sufficient notice is an important issue that we will study more
specifically later in Sec. I (pp. 825-830), it is not the issue we are focusing on right now – the
constitutional limits of a court’s assertion of personal jurisdiction.
None of this is to say that you shouldn’t be reading and paying attention to the other issues a case raises
-- notice, full faith and credit, 14th Amendment due process principles, etc. -- but that you should
understand what is core and what is periphery for purposes of your study.
Some nice efforts at holdings from around the class
Many of you made a fine start at characterizing the holding of the case. Here are some examples for
you to compare and critique:
•
If a non-resident has not been properly served, nor has property in question been attached, then any
judgment received prior to that will be void.
•
If a non-resident’s defendant’s property is not attached at the beginning of a lawsuit, and the
defendant is served by publication, then the court does not have jurisdiction to issue an in personam
judgment.
•
If a person is personally served with process while in the state or has property within the state and
that property is attached before litigation begins, then a court may enter a judgment against a
nonresident.
•
An individual cannot enforce a judgment against a non-resident’s property located in the state
unless that property was seized/attached at the time of complain filing, as the state does not have
personal jurisdiction over the non-resident and cannot enforce an injunction or require payment of
damages.