CIVIL PROCEDURE
Introduction
The Adversary System
Due Process and the Right to be Heard
i. Due process sets up a “floor” – more procedural rights may be given, but not less.
1. The Fifth Amendment says that the federal government cannot impede due process.
2. The Fourteenth Amendment says that no state shall deprive a person of due process.
ii. Goldberg v. Kelly (1970) = The Court talked very specifically about due process. They said that the temporary deprivation of welfare benefits is enough of a deprivation to trigger due process requirements. They ruled that the NY procedure accorded to the plaintiffs here did not constitute due process. It isn’t clear that this case would be decided the same way today.
1. Requirements of due process outlined by the court in Goldberg
a. Opportunity to present oral testimony
b. Opportunity to confront and cross-examine witnesses
c. An impartial decision maker
d. A decision based on the law and evidence presented
Notice
i. Greene v. Lindsey (1982) = An eviction notice on the door is not enough according to due process. The Court said it is not enough to try to serve them in person once; the housing authority must also then send them notice by first class mail. “Notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” (22).
ii. Mullane = The Court held that service by publication was adequate only for those whose whereabouts was unknown or whose rights were conjectural when the action began; known beneficiaries, whose location was ascertainable, were entitled to notice by mail.
Counsel
i. Lassiter (1981) = How do we know what process is due? Balancing test: interests of claimant, interests of the government, and accuracy concerns. Holding: it is for the trial judge in each civil case to weigh these interests and decide whether or not counsel is required. Counsel is a right only where the litigant may lose her physical liberty if she loses the litigation.
Jurisdiction and Related Doctrines
Jurisdiction over Persons and Property
i. Personal jurisdiction
ii. In rem jurisdiction
iii. Quasi in rem jurisdiction
Personal Jurisdiction
i. Historical background
1. Pennoyer v. Neff = Mitchell sues Neff for attorney’s fees in OR. Neff is no longer in OR, so t
isdiction
1. General jurisdiction = “dispute-blind” jurisdiction
2. Specific jurisdiction = “dispute-specific” jurisdiction
3. Where a defendant has no contacts (or the contacts are only “casual” or “isolated”) with the forum, that forum cannot have jurisdiction unless the defendant consents to it.
4. A single act may give rise to specific jurisdiction.
5. If contacts are continuous and substantial, the defendant may be subject to general jurisdiction; that is, the defendant may be sued in the state for any claim, whether or not it is related to his activities in the state.
v. Personal jurisdiction based on minimum contacts – the minimum contacts test:
1. Whether jurisdiction is permissible depends on the quality and nature of the contacts with the forum state.
Jurisdiction established by minimum contacts is limited to claims arising under (or, perhaps, related to) the defendant’s contacts with the forum state. (Minimum contacts establish specific, rather than general, jurisdiction.)
