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Civil Procedure I
Temple University School of Law
Green, Craig

Craig Green – Civ Pro – Spring 2013

Civil Procedure Cases and Materials by Friedenthal, Miller, Sexton

Part I: Due Process

Assignment 1 – Beginnings and Notice

Due Process Clause requirements are constitutional in dimension.

· Due process clause defines several conditions that must exist before a court may render a valid judgment.

o Court must have jurisdiction over the parties and the issues before it

o The parties must have adequate notice of the commencement of the action and the issues involved in it

o Parties must have an adequate opportunity to present their side of the case to the court

· This is essential to the well-functioning of an adversarial system.

o Fairness & Efficiency important.

o Raise basic questions about the different values that due process is intended to serve.

Mullane v. Central Hanover Bank & Trust Co.

· Only notice given for a trust action was the NY minimum requirements, publication in a local newspaper for four straight weeks.

o Is notice by publication of a judicial settlement to unknown beneficiaries of a common trust reasonable notice under the due process requirements of the Fourteenth Amendment? YES

o Is notice by publication to all of the beneficiaries of a common trust whose residences are known reasonable notice under the due process requirements of the Fourteenth Amendment? NO, because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand.

o NY Banking law does not require notice to all persons whose whereabouts are known, which violates the due process clause of the 14th amendment. (it would be easy to send letters to people whose address is known)

· Rule – Notice must be “reasonably calculated under all the circumstances,” to inform interested parties of the action and give them an opportunity to object.

o Distinction between known and unknown beneficiaries

o For the known beneficiaries, the statutory notice is inadequate, not because it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand.

· At a minimum, the DPC requires that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. In two ways this proceeding does or may deprive beneficiaries of property.

o It may cut off their rights to have the trustee answer for negligent or illegal impairments of their interests.

o Their interests are also subject to diminution in the proceeding by allowance of fees and expenses to one who, in their names but without their knowledge, may conduct a fruitless or uncompensatory contest.



1. They are unclear by what is considered reasonably calculated. Justified by weighing risks of not reaching the person. Does not have to reach everyone. Reasonability is key.

2. McDonald v. Mabee – “To dispense with personal service, the substitute that is most likely to reach the defendant is the least that ought to be required if substantial justice is to be done”

4. Attaching the item is important, now its much easier to cut off service or reach someone with increases in communication. There should be easier ways to find people.

5. The court has held repeatedly that constructive notice does not satisfy Mullane’s due process mandate if the name and address of the defendant is known or available from public records.

o Mennonite Board of Missions v. Adams – notice by publication and posting did not provide a mortgagee of real property with adequate notice of a proceeding to sell the mortgaged property for nonpayment of taxes.

o Tulsa Professional Collections Services v. Pope – If Tulsa’s identity as a creditor was known or “reasonably ascertainable” by Pope, due process required the creditor be given notice by mail or such other means as is certain to ensure actual notice.

6. Greene v. Lindsey – Notice of eviction posted on the door did not satisfy due process because kids can remove them in apartment buildings.

o Notice via the mails is so far superior to posted notice that the difference is of constitutional dimension. — how this is ascertained is unclear (argument against it, saying that posting on a door at least gets it to the door).

o There is disagreement over whether posted notice on a door is better or as good as notice in the mail.

7. When is the government’s use of mail service sufficient to provide notice under the Due Process Clause?

a. Dusenbery v. US – Notice posted in paper, sent to mother’s house, and to federal prison via certified mail. This was sufficient. (additional steps would require heroic effort)

b. Jones v. Flowers – Certified mail sent, but returned unclaimed. Govt was required to have taken additional reasonable steps if practicable to do so.

i. Reasonable step would be to resend the notice regular mail.

ii. Certified mail may become less likely to notice because it cannot be left and can only be picked up if the person knows about it at certain times.

iii. Unreasonable to search public records to locate taxpayer’s new address.

iv. Dissent said that the Due process clause should not turn on the antics of tax evaders and scofflaws. Argued that sending a notice certified mail is sufficient constitutionally.

1. Underscored presumption that individuals owning property act in their own interest.

2. Criticized for addressing notice from an ex post vs. an ex ante perspective.

3. Because the rule turns on speculative, newly acquired information, it has no natural end point, and requires the state to achieve something close to actual notice even though Mullane does not ask for actual notice.

8. Dusenbery (person in jail, so govt. has knowledge of his exact address) can be extended to other instances involving govt. employees (military, federal employees) whose mail is controlled by the govt. Theoretically this kind of certified mail can’t be considered unclaimed, and then the Flowers standard can’t be applied, because that was the best method there was.

9. If personal service is impossible or impractical, what methods of service become reasonable?

o Dobkin v. Chapman – Ds in car accident did not get notice, despite the best Ps could do. Court found that it was D’s fault for failing to furnish a correct address to receive notifications.

o “Situations in which insistence on actual notice, or even on the high probability of actual notice, would be unfair to plaintiffs and harmful to the public interest.”

Part I: Due Process

Assignment 2: Notice & Mechanics of Service


· Notice of a suit is given by the service of process upon the defendant.

· Process consists of a copy of the P’s complaint, together with a summons directing the defendant to answer.

· Service of process is made by personal delivery of the summons and complaint to the D.

o Other methods of service have assumed greater importance since the advent of long-arm statutes.

· 1982 the SC proposed but congress rejected service by certified mail because of the many speed bumps the method has.

· 1983 Congress chose a system of service by mail similar to California’s

o Cal.Code Civ.Pro § 415.30

o Summons could be sent by ordinary mail with an acknowledgment form. If the form is not returned, P had to effect service through some other means authorized by the rules.

o In order to encourage Ds to return the acknowledgment form, they have to pay P’s cost of making personal service unless they could show good cause for failing to return the form.

· 1993 Revised again because reliance on D’s return of the acknowledgment form was futile. Rule 4 sets fourth specific means of making service

o Service by mail was replaced by Rule 4(d), which strongly encourages waiver of formal service.

o P sends D a “Notice of lawsuit and request to waiver service of a summons” by mail or “reliable” means.

o D has 30 days to return the waiver otherwise they will be charged with costs of providing formal service.

o D’s incentive allowing them 60 days to answer the complaint if the waiver is returned in a timely fashion.

Sewer Service:

Process-server simply disposes of the papers and makes a false affidavit of service. This was rampant in the 70s (US v. Brand Jewelers).

· The burden of finding the person to deliver the summons led to sewer service

· In the 70s NY changed the requirements, allowing to leave a copy of the summons with a person of suitable age and discretion at the place where the defendant actually works, dwells, or abides. AND mailing a second copy to the D’s last known address.

· 1973 – additional step of requiring process-servers to make more detailed statements relating to how the process was served

· 1991 – mandated that a copy of the summons be filed with the return of service

Wyman v. Newhouse

· P lied to D in order to get him to come to Florida, when he arrived, he was served. Is fraudulently induced service effective? NO.

· Service of process made by fraudulently inducing the defendant to enter the jurisdiction so that he may be served is ineffective.

o Appellant’s lured Appellee to FL with fraud.

o A judgment procured fraudulently lacks jurisdiction and is null and void.

· A fraud affecting jurisdiction is equivalent to a lack of jurisdiction.

· Defendant can attack the judgment through an equitable defense in a suit to enforce the judgment in another state.

o The jurisdictional question can be collaterally attacked when the original judgment entered against Defendant was by a court that did not have personal jurisdiction over the Defendant.

o “A judgment recovered in a sister state, through the fraud of the party procuring the appearance of another, is not binding on the latter when an attempts made to enforce such judgment in another state.”

· This case illustrates how personal jurisdiction procured through the fraud of the pla

to the right of procedural due process has already occurred.

· Despite the objects not belonging to the Ds, it is clear that they were deprived of possessory interests in those chattels that were within the protection of the 14th amendment.

· Regarding waiving the due process rights: The contracts provided that the items may be repossessed, but nothing on how and using what process, and absolutely nothing about a waiver of a hearing. Rather the waiver provisions are no more than a statement of the seller’s right to repossession upon occurrence of certain events.

· There are “extraordinary situations” that justify postponing notice and opportunity for a hearing. These situations must be truly unusual.

1. Seizure directly necessary to secure an important govt. or general public interest.

2. Special need for a very prompt action

3. State has kept strict control over its monopoly of legitimate force (governmental official responsible for determining that it was necessary and justified)

· Dissent (3 judges) – One should pay attention to the seller’s interest, while also looking at those of the buyer. Here, the buyer’s risk of harm is not as large as the majority concludes.

o Would not ignore the creditor’s interest in preventing further use and deterioration of the property in which he has substantial interest. If there is a default, it would seem not only f air, but essential, that the creditor be allowed to repossess.

· Likelihood of a mistaken claim of default is not sufficiently real or recurring to justify a broad constitutional requirement that a creditor do more than the typical state law requires and permits him to do.

· Default is not in the creditor’s best interest.

· The creditor has a property interest as deserving of protection as that of the debtor.

o Policy Argument / Unintended Consequences Argument

· Majority opinion is ideological thinking which can be averted by putting the terms clearly in the agreement.

· Argues that this can hurt the availability of credit or increase the expense of securing it.


1. Sniadach v. Family Finance Corp.

o The Fuentes case is an application of this case which struck down a Wisconsin prejudgment wage garnishment procedure as violating due process guarantees.

o Court held that: A prejudgment garnishment is a taking which may impose tremendous hardship on wage earners with families to support.

2. The dissent’s argument makes sense, but it would most likely not stand up to the unconscionable contract challenge (unequal bargaining position, against public policy to allow people in need to contract away their constitutional rights).

Mitchell v. W.T. Grant Co.

· Trial Court ordered sequestration of personal property on the application of a creditor who had made an installment sale of the goods to petitioner and whose affidavit asserted delinquency and prayed for sequestration to enforce a vendor’s lien under state law.

o Whether a sequestration statute authorizing pre-judgment seizure of property violates the Due Process Clause? NO.

o Prejudgment-seizure is proper when a judge reviews the complaint that has specific facts alleging possession, a bond is posted, and a hearing is afforded to the party.

· Louisiana Law provides for sequestration where “one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon… If it is within the power of the D to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.”

· Typically pre-judgment procedures, here sequestration, are found to violate due process. However, this statute affords parties the requirements necessary for those rights not to be violated.

o Here it is a judge that reviews the complaint that must provide specific facts for seizure, and the defendant is awarded a hearing to dispute the complaint.

o Also the writ states the plaintiff will pay for any fines damages and attorney’s fees if a wrongful writ is made.