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Civil Procedure I
Temple University School of Law
Green, Craig

Civil Procedure I – Spring 2013
Prof. Craig Green
Due Process Clause
(1)   Court must have jurisdiction over the parties & issues before it
(2)   Parties must have adequate notice of the commencement of the action and the issues involved in it
(3)   Parties must have an adequate opportunity to present their side of the case to the court

I.        NOTICE
A.    Service of process: Notice of a lawsuit upon the defendant, usually a copy of plaintiff’s complaint + summons directing the defendant to answer.  Why is notice so important??  We have an adversary justice system!  Without it, a judgment would favor the defendant.
1.      FRCP 4: Service to ensure that D has adequate notice of the legal action against him.  D must be served with a summons and a copy of the complaint
i.            4(c): must be served within the time allowed, by someone 18+ who is not a party to the suit
ii.            4(d): Waiver of Service by mail: Plaintiff mails summons & complaint along w/notice & request to waive service.  If P does not have a good reason for failing to return waiver within 30 days, they are required to pay cost of pursuing additional service and have a longer time (60 days) to respond to the complaint.
iii.            4(e): must serve within the jurisdiction of the suit.
a.      personal service (in person)
b.      substituted service: at defendant’s “usual abode” + serve someone of “suitable age & discretion who resides there”
c.       defendant’s agent
d.     4(e)(1) or any state law method serving process
2.      Constitutional Standard
i.            Mullane v. Central Hanover Bank & Trust (1950): Notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
a.      When whereabouts of interested party are not ascertainable, newspaper notification may be practical, but when names & addresses are available, there is no reason to resort to less reliable means of communication.  Though personal notification may not reach every beneficiary, reasonably certain to reach most of those interested in protecting the interests of others (class).
ii.            Wyman v. Newhouse (2nd Cir. 37): Plaintiff induced the defendant to enter her state in order to serve him.  Judgment procured fraudulently lacks jurisdiction and is null & void.  The court distinguishes between fraudulent actions designed to induce a party into a jurisdiction (crossing state lines) and actions calculated to facilitate service on a party already in the jurisdiction.  (Using trickery to serve notice upon someone voluntarily in the jurisdiction is permissible)
B.     Opportunity to be heard: Pre-depravation rule
1.      Due Process Clause requires parties have a “right to be heard” before the government effects a deprivation of their liberty or property.  Defendant must be informed of the action (receive notice) long enough in advance of the time when she is required to respond so as to allow her to obtain counsel and prepare.
2.      Fuentes v. Shevin (1972): Prejudgment replevin provisions are a deprivation of property w/o due process of law, denying the right to a prior opportunity to be heard before chattels are taken from their possessor. Due process requires notice of hearing & actual hearing before deprivation of property.  Defendants here know of complaint – someone comes to their door & seizes property.  BUT notice does not come prior to deprivation of property w/o right to be heard before “judgment”.
3.      Sniadach (WI, 69): WI’s prejudgment garnishment of wages procedure, with its obvious taking of property without notice and prior hearing, violates the fundamental principles of procedural due process. A prior hearing may be postponed where exceptional circumstances justify such a delay. 
4.      Mitchell v. W.T. Grant Co. (1974) LA allows sequestration if plaintiff submits sworn affidavit to a judge (not clerk or prothonotary) swearing ownership or right to possession of property, if it’s within the power of D to conseal/destroy property, and when nature of claim and amount clearly demonstrated by the facts verified by affidavit, and when creditor has filed bond to protect against event that sequestration is incorrect.  Claim must “clearly appear from specific facts”.  Because LA requires specific, narrow facts and documentary proof to obtain writ of sequestration, there is far less danger the seizure will be mistaken and therefore standards are constitutional.
5.      North Georgia Fishing, Inc. v. Di-Chem, Inc (1975) Di-Chem garnised NGF bank account—no affidavid, no equal property interest.  Garnishment is unconstitutional because employee did not have pre-deprivation process
6.      Connecticut v. Doehr: State statute authorizes prejudgment attachment of real estate without prior notice or hearing, without showing of extraordinary circumstances, and without requirement to post a bond. Suit didn’t involve Doehr’s real estate & P had no interest in Doehr’s property, but attachment was issued w/probably clause based on P’s complaint.  Fist fight, a very fact-specific event, cannot be decided reliably with only P’s version of the facts.  Doehr test: pre-depravation notice.  Must provide notice BEFORE action is taken.
7.      Matthew v. Eldridge established a pre-deprivation test: The court will weigh three factors against each other to determine whether due process was violated when D’s property was interfered with through a pre-judgment remedy:
i.            The degree of harm to D’s interest from the pre-judgment remedy (attachment to home not as devastating as seizure of property)
ii.            Risk of erroneous depravation
iii.            Plaintiff’s interest in obtaining “property” (no reason to believe DiGiovani would have fled)

II.     PERSONAL JURISDICTION: in what states can P sue D?
A.    3 types of jurisdiction
1.      in personam: jurisdiction over a person; court exercises its power to render a judgment for or against a person by virtue of his presence within the state’s territory or citizenship there.
i.            General jurisdiction: defendant can be sued for activity that occurred outside the state, requires deep roots & connections.  Contacts are so systematic & continuous that you can sue someone for something they’ve done somewhere else.  Suit can always be brought where defendant’s residence/domicile is no matter where the action happened
ii.            Specific jurisdiction: defendant can be sued for activity that occurred within the territory. Does not require extensive contact/connections. Ability to bring suit for minimum contacts with that state.
2.      In rem: jurisdiction over a thing; court exercises power to determine status of property located within its territory & decision is binding with respect to all interest holders in that property.
3.      Quasi-in-rem: jurisdiction over a thing; court can render judgment for or against a person but recovery is limited to the value of property within the jurisdiction.
B.     Consent
1.      Pennoyer v. Neff: no longer applicable law.  Established that personal jurisdiction is determined always and only by serving someone while they are in that territory, to an authorized agent, OR by consent. It violates due process to serve someone in another state.
2.      Kane v. New Je

t occurred in NJ, manufactured in Englde, where McIntyre is incorporated & operates. D directed marketing & sales efforts at the U.S., but not N.J. specifically.  Distributor sold J. McIntyre’s machines in the U.S.  J. McIntyre officials attended trade shows in several States, but not NJ. No more than 4 machines ended up in NJ.  Had no office, paid no taxes, owned no property in N.J.  Didn’t advertise or send employees to N.J. To purposefully avail, D must target the forum state “seeking to serve” in their market.
F.      “Notions of fair play & substantial justice”
1.      Asahi Metal Industry Co. v. Superior Ct (1987): CA long arm statute permits jurisdiction as far as the Constitution allows. Tire explosion in CA caused by defective tire, tube & sealant. Taiwan corporation that manufactured the tube suing Japanese corporation that manufactured tube’s valve.  Unreasonable & unfair to exercise personal jurisdiction by CA over suit between 2 foreign corporations.  3 factor test:
i.            Burden on defendant – severe
ii.            Interest of the forum state – slight. Transaction took place in Taiwan
iii.            Interest of the plaintiff – slight, foreign company
G.    General personal jurisdiction
1.      Helicopteros: Helicopter owned by Columbian corporation crashed in Peru, TX citizens died.  Must have “continuous systematic contacts with the forum” for general jurisdiction.
2.      Goodyear Dunlop Tires Operations S.A. v. Brown (2011): bus accident in Paris kills boys from NC, caused by cars manufactured in Turkey, a foreign subsidiary of Goodyear. No specific jurisdiction b/c accident occurred in France and manufacturing/sales took place abroad. NO general jurisdiction company is not registered in NC; no business, employees or bank accounts in NC; solicits no business in NC; type of tire involved never distributed to NC.
H.    Theme: Due process supports jurisdiction where both parties can most conveniently settle their dispute. Place of injury usually provide most convenient forum for trial (Travelers Health Assn v. Commonwealth of VA)

2 kinds of jurisdictions:
personal jurisdiction: where a suit can be brought. A court's power to bring a person into its adjudicative process
general personal jurisdiction: arising when a person's continuous and systematic contacts with a forum state enable the forum state's courts to adjudicate a claim against the person, even when the claim is not related to the person's contacts with the forum state.
specific personal jurisdiction: Jurisdiction based on a person's minimum contacts with the forum state when the claim arises out of or is related to those contacts.
subject matter jurisdiction: what issue can be heard by a court.  When someone files a case in a court, does that court have the authority to hear this kind of case? 
general subject matter jurisdiction: state courts can hear any kind of case.
Limited subject matter jurisdiction: federal courts can only hear certain cases