I. DUE PROCESS
a. The Requirements of notice – service of process gets a lawsuit started, it magically transforms an ordinary person into a defendant in a lawsuit
1. Mullane (1950) – Bank trust case, notice must be “reasonably calculated” to appraise the parties of the action and give them a chance to respond. If you have the addresses of the individuals involved you need to mail notice to them, not just take out an add in the paper.
2. Types of service –
a. Personal Service – Hand to hand service, this is not always required
b. Constructive service – example: certified mail or a similar method to their home or place of work
3. Wyman v. Newhouse (1937) – former lovers, one tricks the other into coming into her jurisdiction to receive service of process. Court rules fraud affecting jurisdiction is equivalent to lack of jurisdiction. You can trick someone into accepting service (example yelling “fire” to get someone to come out of their house) but you cannot trick them into coming into a jurisdiction.
4. Federal Rules of Civ. Pro. 4 a-e
a. Form – signed by a clerk, identify the parties, seal of the court
b. Issuance – plaintiff presents the complaint to the clerk to sign and seal
c. Service with complaint
1. Summons with copy of complaint
2. Must be 18 years old
d. Waiver of service – (court prefer people to waive personal service)
1. If you waive service of summons you are not waiving objections to the venue or other objections
2. Defendant responsible for the cost to get service if the defendant does not respond to the service without a good reason (Stick)
3. If defendant waives service he gets extra time to respond (60 days instead of 20) – (carrot)
e. Service upon individuals within a judicial district of the U.S.
1. Consistent with the laws of the state
2. Copy to person, home, or abode
b. Pre-deprivation Remedies – who gets to hold the property while the judicial proceedings are underway?
1. Fuentes v. Shevin (1972) – dispute about a service polity for a stove, Fuentes stops paying off her balance, Firestone gets a writ of replevin ordering the sheriff to t
getting the credit to terms without due process (remember Walker-Thomas furniture)
5. Mitchell v. W.T. Grant (1974) – J. White (dissent in Fuentes) decides the sequestration of personal property is ok because there are more safeguards. The person who wants the replevin order must go before a judge and swear to an affidavit to get a replevin order. Perjury penalties if you are lying
6. N. Georgia Finishing v. Di-Chem (1975 ) – GA garnishment statute held unconstitutional. Under the statute no notice or hearing before garnishment occurred and a clerk, not a judge approved the garnishment.
7. Connecticut v. Doehr (1991) – no prejudgment attachment of real estate without prior notice or hearing. Three part test from Mathews v. Eldriged used
a. consideration of the private interest that will be affected
b. risk of error