Civil Procedure I Outline

Due Process Values(i.e. policy):

Equality
Fairness
Procedure determined by complexity, consequences, innacuracy of determination
Think about ex ante vs ex post hearings and the reasoning behind that
Importance of stare decisis
Balancing of time, accuracy and efficiency

N: procedure chooses certain values over others out of necessity

Sources of Authority:

Constitution
Judiciary (one supreme court and inferior courts established by congress, as enabled by article 3)

Hierarchy of Authority:
Supreme Court Constitution
Courts of appeal Statutes
District courts

Hamdi v. Rumsfeld- U.S. citizen held as an enemy combatant and not given due process rights used the:

Mathews Test- mathews v. eldridge weigh the individual’s interest against the government’s interest, cost and burden of efficient adjudication

Notice and an Opportunity to be Heard

The Due Process Clauses (found in the Fifth Amendment and the Fourteenth Amendment) of the United States Constitution deny effect to adjudications unless the parties to be bound were given prior notice and an opportunity to participate

Mullane v. Central Hannover Bank & Trust: A financial interest was sold or transferred or something, the bank published notice, knowing there were many unknown parties that would be affected, but failed to contact in the normal way people whose information was known. The Court ruled that constructive notice for unknown persons is constitutionally OK, but that constructive notice for known persons is unconstitutional. The case was reversed and remanded for further proceedings

-Does posting on door constitute notice?
Greene v. Lindsey- Court held this was violative of due process, because posting was unreasonable under the circumstances (door posting case)

FRCP 4
In federal actions, a plaintiff may serve process upon an individual, corporation or association by:

(1) delivering the summons and complaint to the individual personally;

(2) leaving the summons and complaint at the individual’s dwelling house or usual place of abode with a person of suitable age and discretion then residing therein;

(3) delivering the summons and complaint to an agent authorized by appointment or by law to receive service of process.

Waiver of Process:
FRCP 4 provides incentives for a defendant to agree to waive formal service and instead accept service by mail.
-Upon notice of the commencement of the action and a request for waiver of service from the plaintiff, a defendant who so agrees is granted an extended time within which to answer – 60 days instead of the 20 days granted when process is formally served.
– FRCP 4 imposes upon the defendant “a duty to avoid unnecessary costs of serving the summons,” and therefore, failure to accept process by mail subjects the defendant to liability for costs of service as well as attorney’s fees incurred in any motion to collect the costs of service.

National Development Co. v. Khashoggi- left at one of his usual place of abode with housekeeper, court decides that since he was physically present, that was sufficient
-There can indeed be more than one dwelling house or usual place of abode

Potential Procedural Defects:

Method, meaning service of process (e.g. posting)
Process itself (e.g. expired summons, unsigned complaint, etc. meaning the pieces of paper have a problem with them)
Power of court (jurisdiction?)

The Adversarial Legal System:

Lassiter v. Department of Social Services- Court found that due process does not require appointed counsel in parental termination hearings, but that the trial court should evaluate the appropriateness of appointing counsel on a case-by-case basis

Matthews test:

Private interest vs Government’s interest
Risk of error? Cost?

Lassiter v. Department of Social Services- no right to counsel per se, but judge should give counsel on a case by case basis

**(using mathews test, court decides when loss of personal liberty is not at stake, there is a rebuttable presumption that you are not constitutionally entitled to counsel)

Walters v. National Association of Radiation Survivors- veteran’s fund benefits case, no paid lawyers allowed, using mathews test, we see a high private interest, a not so high government interest, risk of error is relatively high, but the cost is huge (contingency fees, taxpayer dollars for the now complicated process, and the fact that if the system became more adversarial, everyone would need a lawyer)

Enter jurisdiction

Jurisdiction: legal power or authority

Capias ad respondendum (Latin: “that you take to hear the judgment”) is a writ issued by a court to bring the defendant, having failed to appear, to hear the judgment to be imposed

Quasi in rem jurisdiction- (they have your property, not you, so they can hold your property hostage in order to perfect a judgment against your property) A quasi in rem action is commonly used when jurisdiction over the defendant is unobtainable due to his/her absence from the state. Any judgment will affect only the property seized, as in personam jurisdiction is unobtainable.
??Pennoyer v. Neff- lawyer gets default judgment after publication of summons, Is given an order to seize OR property, though Neff is in CA, lawyer assigns property to Pennoyer, later Neff files in federal court seeking to evict Pennoyer, lack of personal jurisdiction. Supreme court rules that OR did not have power over Neff because he was not physically within the state
In rem jurisdiction: have jurisdiction over property because the property (or status, such as marital status) is the primary object of the action, rather than personal liabilities

Quasi in rem jurisdiction: the court may lack personal jurisdiction over the defendant, but it has jurisdiction over the defendant’s property. The property could be seized to obtain a claim against the defendant

Jurisdiction by consent: anyone can consent to give a court personal jurisdiction over them

n. Special appearance: where you show up for the sole purpose of contesting jurisdiction

Personal Jurisdiction
Rule 4(k) 1 (then check long arm statute, then check due process)
Territorial limits of effective service

Service of a summons of filing of a 4(e) waiver is sufficient to establish personal jurisdiction if:

The forum district’s state allows it; or
The defendant is a joined party (per rules 14 and 19) and is served within 100 miles from where the summons was issued; or
The defendant is subject to the federal interpleader jurisdiction (per 28 isc 1335); or
It is authorized by a U.S. statute