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Civil Procedure I
Temple University School of Law
Green, Craig

Civil Procedure – Green Spring 2015

What is civil procedure?
The “how” of a civil dispute (as opposed to the substance, the “what”)

Modern Civil Procedure: intended to be common sense, simplicity, flexibility of procedure, with the goal of providing a uniform set of rules for all substantive areas of law.

Good civil procedure system:
Ease of bringing claims
Giving notice- goes along with the idea of fairness
Efficiency- meritorious result for short and cheap
Justice- some analysis of whether the claim was any good
2 kinds of law:
Federal Law: listed in order of what comes first (everything federal beats anything state)
Common law (torts, contracts, property)
Common law

28 U.S. Code Sect. 2072: Rules Enabling Act
(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.

Due Process

I.        FCRP 4 (Reasonable Notice)
i.    Due Process – reasonable notice and opportunity for hearing at a meaningful time
ii.    Service à personal v. mail // actual v. construction
b.    Notice
i.    Mullane Balancing Test
1.    used to determine whether particular form of notice meets requirements of due process. (!! Mullane v. Central Hanover) à where notice by publication suffice
a.    !! Mullane v. Central Hanover Bank & Trust Co. (1950) notice by publication
i.    R: In order to satisfy due process, notice must be by means calculated to inform the desired parties, and where they reside outside the state and their names and addresses are available, notice by publication is insufficient.
ii.    F: NY statute allows corporate trustees to pool asserts of numerous small trusts administered by them. Beneficiaries were to be notified of accounting so they might object. Central Hanover Bank sent notice of common fund to all interested parties along with NY statute. Notice of accounting published in newspaper à D (Mullane) objected to notice by publication under violation of DPC and 14th Amendment.
iii.    H: (Jackson) purpose of notice requirement is inform parties rights are being affect à method chosen should be reasonably designed to accomplish this end. Newspaper notice not reasonable to provide out-of-state residents with desired information.
1.    Publication only a supplemental method for giving notice. Court will approve its use where alternative methods are not reasonably possible or practical.
2.    TEST: Is it reasonably calculated to reach those who could easily be informed by alternative methods?
2.    TODAY: reasonableness test survives only as general principle and overridden by more specific rule that publication notice will not be enough to any party with interest when contact information are reasonably ascertainable. (!! Mennonite Board v. Davis)
a.    !! Mennonite Board v. Davis (1983) Court limited actual or mailed notice to persons whose name and address are reasonably ascertainable. Does NOT EXPLAIN scope of diligent search P must undertake before resorting to constructive notice.
i.    H: 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.
b.    !! Green v. Lindsey (1982) posting eviction notice on door divided
i.    process servers aware that notices were removed by other individuals, and in these conditions door postings were not reliable means of acquainting interest parties of the fact that their rights are before courts
c.    !! Dusenberry v. United States (2002) adequacy of notice given to prisoner by the FBI prior to forfeiting property seized under the CSA.
i.    H: (applying mullane) government’s use of certified mail satisfied DPC and additional steps would require “heroic efforts” were prisoner claimed to never receiving mail after officer signed for letter
d.    !! Jones v. Flowers (2006) whether gov’ts sending of notice by mail satisfies DPC in case where homeowner fails to pay property taxes. gov’t used certified mail to notify taxpayer of impending sale of property, but made no further effort to contact taxpayer when letter was returned unclaimed.
i.    H: in these circmstances, gov’t was required to have taken “additional reasonable steps,” if it is practicable to do so to ensure taxpayer receives notice before forfeiture of property.
1.    maybe certified mail no good – because return simply means either the person not home to sign for letter or no longer resides there (making notice less likely)
e.    !! Covey v. Town of Somers (1956) – notice to someone with known disability
i.    H: notice by mail of a foreclosure proceeding for delinquent property taxes on real property, would not satisfy DPC when it was mailed to someone known to have been insane and committed to a hospital
f.     !! Dobkin v. Chapkin (1968) when personal service impossible/impracticable
i.    H: ordinary mail to D’s last known address and publication in a newspaper suffices when location of D unknown and service in manner attempted was best  could do, explaining that these were “situations which insistence on actual notice, or even on the high probability of actual notice would be both unfair to plaintiffs and harmful to the public interest.”
g.    Military Servicemembers
i.    Servicemembers Civil Relief Act postpones or suspends proceedings that may lead to eviction, mortgages foreclosure, the entry of a default judgment, or the sale of stored goods to pay for storage liens.

ii.    Waiver of Notice
1.    party may waive receiving notice in advance of litigation or after litigation commences.
a.    !! DH Overmyer v. Frick (1972)
i.    F: SC considered constitutionality of a note by which a debtor may empower the creditor or an attorney to confess judgment against it and waive any objections to jurisdiction, notice, and service of profess.
ii.    H: Cognovit note does not per se violate the DPC but must be assessed on a case-by-case basis with regard to factors like lack of consideration and inequality of bargaining power.
iii.    Constructive Notice
1.      Constructive notice is the legal fiction that signifies that a person or entit

ting from fraudulent service)
d.      Waiver:
i.      FRCP 4(d) Waiving Service
1.      action commences when P sends form entitled Notice of a Lawsuit and Request to Waive Service of a Summons by mail or other reliable means. Given 30 days which the request was sent to return the waiver, otherwise charged with costs associated with providing formal service (FRCP 4(d)(1)(g))
a.       Time to Respond: 30 days (60 days for foreign D)
b.      Incentives: D is free to refuse to grant the waiver, in which case P must serve summons by in-person methods.
i.      Additional Time: “carrot” D gets 60 days following request for waiver sent in to answer the complaint (compared to 21 days by Rule 12(a))
ii.      D may pay costs of service: “stick” if waiver refused without good cause court must impose on D the expenses incurred in making service and any motion to collect those service expenses (4(d)(2)).
c.       No Waiver of Personal Jurisdiction or Venue: a D who grants waiver of personal service will not be deemed to have waived any objection to venue or personal jurisdiction over him (FRCP 4(d)(5)). D can still make motion for dismissal on either of these counts under FRCP 12(b)(2) and (3)
2.      Time for Service: service must be made within 120 days after filing of complaint (FRCP 4(m)) à else court can dismiss action w/o prejudice.
ii.      problem with certified mail: signatures illegible or differs from name of D, or difficult to determine whether mail was returned or unclaimed, or misdeliver to wrong person.
iii.      First Class Mail à summons and complaint sent through ordinary mail together with form for acknowledging recipe and accepting of service – if form not returned P had to effect service through other means authorized by the Rules
1.      à D would pay for alternative means unless good cause shown for failing to return

IV.        Pre-Service Remedies
a.    Opportunity to Be Heard
i.    1960s à Court considered whether DPC always requires a hearing before deprivation of LLP or whether a hearing after the fact sometimes suffice.
ii.    Provisional Remedies: largely statutory – allow plaintiff to seize or encumber D’s assets during pending lawsuit and before final judgment has been entered.
1.    ex: writ of attachment (seizure of assets + liens), garnishment
iii.    Consideration: protect against arbitrary and mistaken deprivations of property, predicate for enjoyment of property, arrive at truth of matter through notice of the case against him and the opportunity to meet it, lack of equal bargaining power is unfair to poor people, system to retrieve goods doesn’t work, malicious.