Civ Pro Outline
I. RULE 1
· Policy;
· 3 elements: speedy, just, inexpensive (economy)
II. RULE 2
· One form of action (Civil Action)
III. RULE 3
· Commencement of Action
· commenced by filing a complaint with the court
IV. RULE 4
· Notice / Opportunity to be heard
i. D must have notice (must be proper)
1. If D is served properly, even if he doesn’t read the notice, it is good service
2. If D is not served properly, but he inadvertently reads the notice it is not good service.
ii. Comes from Service of Process (Rule 4)
· (d): waiver of summons
· (m): time limit for service of summons: important in the Rule 15 analysis
· Process consists of a (1) summons and (2) a copy of the complaint
i. Summons (Rule 4(a) and 4(b))
1. Official notice from the court
2. Includes a copy of the complaint
3. Must be within 120 days of filing of the complaint
ii. Service can be made by any non-party who is at least 18 yrs old (Rule 4(c))
iii. Individual’s are served via Rule 4(e):
1. Rule 4(e)(2) – 3 choices to serve
a. Personal Service
i. Can be done anywhere in the forum state.
b. Substituted Service
i. Must be at D’s usual abode or dwelling house.
ii. Must serve someone of suitable age or discretion who resides there. (no magic age)
c. Serve D’s agent
2. Rule 4(e)(1)
a. Can used the venue state’s method
iv. How do you serve a corporation?
1. Rule 4(h)
a. Must serve an officer or a managing agent
2. Rule 4(e)(1)
a. Can serve per the state’s method
v. Waiver of Service
1. 4(d): Allows D to return a waiver form, thereby waiting personal service
2. D picks up tab if they do not waive
vi. Where do you serve process?
1. Rule 4(k)(1)(a)
a. You can serve process throughout the forum state
b. You can serve out of state if the state court (in that state) could also do so
i. This right would come from state law.
2. Exceptions
a. Rule 4(k)(1)(b): we can serve outside the forum state, even if the state can’t, if it within 100 miles of court (“Bulge” rule).
i. Does not apply to the original D; only applies to joined parties
ii. There may be fed statutes that give a fed court the abili
y to secure an important gov’t or public interest
ii. Very prompt action is necessary, and
iii. A gov’t official initiated the seizure by applying the standards of a narrowly drawn statute.
iv. Private property: Doehr
1. Must have notice prior to prejudgment attachment
2. Must have prompt pre or post-deprivation hearing
3. Commercial property doesn’t have the same protections as a private residence.
v. Apply the Mathews Test to determine constitutional adequacy, consider:
1. Strength of D’s privacy interest: the harm to D’s interest. (e.g. refrigerator is more significant than a radio).
a. Example: replevin on real estate: degree of harm is high (bad credit, clouds title)
Risk of erroneous deprivation of that interest through the procedures utilized, as well as the probable value of additional procedural safeguards (this is why there is a bond requirement)
