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Civil Procedure I
Temple University School of Law
Green, Craig

Civil Procedure Outline

Spring 2012 – Prof. Green

I. Notice & Opportunity to Be Heard

A. Notice – was adequate notice given to the defendant? Was it reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to be heard?

The 5th Amendment prohibits the federal courts from exercising jurisdiction over a defendant who has not been given “reasonable notice” of the suit. Under Mullane, notice is reasonably calculated versus the alternative if, given all the circumstances, it conveys sufficient information to notify the party of the pendency of the action and afford them an opportunity to be heard.

Thus, the defendant need not actually receive notice in order for procedure attempting to provide notice is reasonably likely to inform him. MULLANE = MIN.

i. Adequate Information – does the notice convey sufficient information to notify the party of how and by when it should respond?

1. If not, notice may be inadequate

ii. Timeliness – does the notice allow reasonable time to appear?

1. If not, notice may be inadequate

iii. Method – is the method of giving notice the most reasonable means available?

1. If no, and better means available and reasonably practice, notice is inadequate

2. Yes. Superior method too expensive, time consuming or burdensome not necessary.

B. Opportunity to be heard – does the pre-deprivation hearing comport with the constitutional requirements of due process? Apply the three-pronged test of Doehr

Doehr: prejudgment attachment provision that fails to provide prior notice or pre-attachment hearing w/o showing some exigent circumstances violates due process.

Three-part test: weight factors against each other to determine if violated:

i. Degree of harm – very high for property owner like Doehr

ii. Risk of erroneous deprivation (typically the most important factor) – just good faith or more?

iii. Strength of interested party in seeking prejudgment remedy – evidence of imminent transfer of property?

Fuentes held that before an individual is deprived of life, liberty or property, he must be afforded a meaningful opportunity to be heard.

POLICY: important test for adversarial justice because notice is the only way to ensure that your interests are looked after; otherwise, default judgments

POLICY: due process and personal dignity / ability to participate in the judicial process; goes beyond $$$ of property

Mullane: notice of publication in a local newspaper of a judicial settlement when the addresses are known is unconstitutional as a violation of the due process clause.

· Constructive notice acceptable w/ regards to unknown parties whose whereabouts could not be ascertained by due diligence.

A. Service in Federal Court: must be carried out in the correct manner:

i. Personal (Rule 4(e)(2)(A)): serving him personally, hand-to-hand, Harry Grossman-style

ii. Substitute service:

1. Leave at dwelling (4(e)(2)(B)): handing the summons and complaint to a person of “suitable age and discretion” residing at D’s dwelling

2. Mail (4(d)(1)): can notify a defendant that an action has been commenced and request that the defendant waive service of a summons

3. Service Rules of Other State (4(e)(1)): can follow the service laws of the state where district court located or where service is made

B. Fraud or duress: judgment based on service of process procured in a fraudulent manner invalid

i. Inducement: distinguish b/t actions designed to induce a party into a jurisdiction and those that help facilitate service of a party already there

Wyman v. Newhouse: no jurisdiction b/c fraudulently procured by inducing party to cross state lines; getting the party to cross state lines is okay without fraudulent inducement.

C. Replevin statutes: creditors seeking pre-judgment remedies seeking to protect assets from being squandered by D; also they don’t have to litigate.

Fuentes: replevin law that fails to provide notice prior to the seizure of private property violates due process.

· Cannot deprive individual of property w/out prior notice or pre-deprivation hearing unless extraordinary situation like gov’t interest

II. Personal Jurisdiction

A. Rule 4(k)(1)(A)– federal ct. has the same personal jurisdiction capacity of a state court

i. Federal statutory provision: is there a federal statute w/ its own service provisions that would provide PJ? If so, it can be established under Rule 4(k)(1)(C)

ii. Rule 4(k)(1)(A) – requires you to determine whether the defendant could be subjected to the jurisdiction of a court of general jurisdiction in a state in which the district court is located.

B. Long-Arm Statute – does it authorize PJ under these facts? Long-Arm Statute permits court of a state to obtain jurisdiction over persons not physically present within the state at the time of service – in contrast with Pennoyer v. Neff, under which actual presence in the state was required in order to be sued

i. Type of LAS –

1. Constitutional limit: authorizes court to exercise PJ to the constitutional limit of due process.

2. Enumerated act: specifically articulates factual circumstances where the court can exercise PJ.

ii. Statutory Analysis – do the facts presented fall within one of these two?

C. Constitutional Analysis – does the courts assertion of jurisdiction satisfy the requirements of due process?

i. International Shoe Test – does the assertion of jurisdiction satisfy the standard of International Shoe? Minimum Contacts + Reasonableness

ii. Four-Position Matrix – determine which categorization is appropriate for the contacts serving as the basis for jurisdiction:

Nature of Contacts



Continuous & Systematic


General jurisdiction if contacts are “substantial”

Isolated & Sporadic

state, either directly or indirectly.

World Wide Volkswagen: OK state LAS violate due process by exercising PJ over a nonresident automobile retailer and its wholesale distributor in a products liability action, when D’s only connection w/ OK is the fact that an automobile sold in NY to NY residents was involved in a car accident in OK?

· Yes, court is putting a limit on personal jurisdiction; not enough to foresee that your product might be driven there

Two related but distinguishable functions of the minimum contacts test:

1. Protects defendants against burden of litigating in a distant and inconvenient forum

2. Ensures that states don’t reach beyond limits imposed upon them as coequal sovereigns in federal system

– Rejects foreseeability alone: court rejects “foreseeability alone” test b/c every seller of chattels would effectively appoint chattel his agent for service of process, need personal availment

Brennan dissent: focus of Int’l Shoe is fairness and reasonableness, not providing state w/ the “best contacts” for D.

iii. Knowledge of in-state sales enough: if the out-of-state manufacture makes or sells a product that it knows will be eventually sold in the forum state, this is probably enough to establish minimum contacts. However, if this is the only contact that exists, it may nonetheless be “unreasonable” to make D defend there, and thus violate due process.

Asahi Metal (plurality rejects stream of commerce): Int’l/foreign corp. A manufactures components for foreign corp. B, who sold products in CA.

· Although Asahi had minimum contacts w/ US, unreasonable/unfair and thus violation of due process (burden on foreign party, CA lack of interest)

· Brennan – the defendant merely must have been aware that its product would be marketed in the forum state in order to satisfy the purposeful availment requirement – if it can be reasonably that it would get to forum state, don’t need direct conduct towards forum state.

· O’Connor – the defendant must have intended for its product to be marketed in the forum state in order to have purposefully availed itself of the forum.

iv. Contractual relationship involving the state: the contract itself ties the parties’ business activities to the forum state, this is an important factor tending to show the existence of minimum contacts. Stream of payments coming into the state is likely to permit suit in that state.