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Civil Procedure I
Temple University School of Law
Dunoff, Jeffrey L.

Professor Dunoff

Civil Procedure Outline Spring 2015

I. Introduction to Civil Procedure: The Values of Civil Procedure

Assignment 1: An Introduction to Civil Litigation:

What is procedure?

· Substantive law defines parties’ rights, obligations and duties outside of court.

· Procedural law governs the same inside the court. In other words, the procedural rules define or regulate the decision-making process within the court.

What are the goals/ends of Civil Procedure?

· Justice

· Speed

· Economy

· Standardization

· Transparency

· Consistency

· Fairness

· Equal Opportunity of Access

· Accuracy (more likely to produce the correct legal result)

· Easily Accessible/Well Documented

· Adaptability to Changing Times/Circumstances

Federal Rules of Civil Procedure:

· Govern all civil proceedings save for those set forth in Rule 81.

FRCP R. 1: These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy and inexpensive determination of every action and proceeding. (emphasis added).

Assignment 2: Due Process and the Right to be Heard

Due Process Clause of the Fifth and Fourteenth Amendments:

· 5th Amendment restrains the federal government from depriving US Citizens of life, liberty or property without the due process of law.

· 14th Amendment extends the 5th Amendment prohibition against such deprivations absent due process to the states themselves.

· At a minimum, they require that such deprivation should be preceded by

o Notice, and

o An adequate opportunity to be heard

§ A defendant has adequate opportunity to be heard when he is able to develop the facts and legal issues in the case and present his position to the court.

· Depending on the legal issues involved, this may only require an informal hearing, or it may require a full trial, or something inbetween.

The Opportunity to be Heard:

· The due process clause requires that parties have a “right to be heard” before the govt. effects a deprivation of their liberty or property.

· D must be informed of the action (must 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 a defense. (generally 20 days or more after service)

· Extended to “New Property” in the 60s and 70s – Property includes licenses, Social Security benefits, and govt. jobs.

o Recipient of govt funded public assistance is entitled under the Due Process Clause to “the opportunity for an evidentiary hearing prior to termination” of benefits. (Goldberg v. Kelly 1970)

o “termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.”

· Due Process Challenges for Provisional Remedies — temporary restraining orders, preliminary injunctions, pre-action attachments, and the like.

o At common law Provisional remedies represent important exceptions to the ordinary requirements associated with the constitutionally mandated opportunity to be heard and were justified by the need for expedition and summary action.

o The following cases examine the extent to which the Due Process Clause imposes limitations on the use of provisional remedies because they do not provide an adequate opportunity to be heard.

Several factors weigh in this line of cases:

· Who: whether a judge or a clerk is the decision maker

· What – whether the party seeking relief has a pre-existing interest in the property to be seized or encumbered

· When – whether the seizure is effected before notice and hearing, or is followed by an immediate post-seizure hearing

· Why – whether the seizure is to establish jurisdiction or for security purposes, and if for security purposes, whether exceptional circumstances such as destruction of an asset are presented.

· How – whether the applicant must show probable cause or meet a lesser burden; whether factual allegations must be sworn under oath on personal knowledge; whether dispute can be resolved by uncontested documentary evidence; and whether the creditor of debtor must post a security bond.

Snaidach v. Family Finance Corp. of Bay View (in notes): Prejudgment garnishment of the Wisconsin type is a taking in violation of the Due Process Clause.

· Wisconsin statute authorized the freezing of a debtor’s wages upon service of a summons by the creditor.

· Wage earner had no opportunity to be heard prior to the garnishment.

· Court reasoned this imposed a severe hardship on the debtor.

· Concurring opinion reasoned that, apart from special situations, due process is afforded only by the kinds of “notice” and “hearing” which are aimed at establishing the validity or at least the probable validity of the underlying claim before the debtor can be deprived of his property or its unrestricted use.

· This case preceded and was a basis for Fuentes

· Left open the questions of whether its holding would extend to situations other than those involving wages, which may involve a showing of less hardship on the part of the debtor, and exactly what kinds of “extraordinary situations” could justify seizure without a prior hearing.

Fuentes v. Shevin (in notes): Parties whose rights are to be affected are entitled to be heard, and in order that they may enjoy that right they must first be notified.

· Fuentes bought an oven and a stereo on a payment plan from Firestone which allowed for the replevin of all if she defaulted on the payments.

· She defaulted and they filed for replevin. Statute in Florida authorizing the same did not provide for any hearing or notice prior. It merely provided that the creditor must file the complaint and post bond. The Sheriff then took the property upon service of the complaint.

· Defendant could post a bond for double the value of the property and receive it from the sheriff, who was ordered to keep it for 3 days.

· “the constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decision making.”

· If the right to notice and a hearing is to serve its full purpose, then it must be granted at a time when the deprivation can still be prevented.

· Court also criticized the use of a clerk as opposed to a judge in the seeking of the writ, as no state official reviews the validity of the facts.

· The waiver Fuentes signed, court reasoned, did not constitute a waiver of her procedural due process rights. Waiver hear simply said they would take them back, did not say anything about the process by which that would be achieved.

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

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

o Special need for a very prompt action

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

· Though There are several remedies (Could have the hearing prior, could have it later as is provided and then allow her to sue for the damages suffered as a result of the loss, etc.), it’s easier and more efficient to just have the hearing at the outset.

Mitchell v. W.T. Grant Co (in notes): Similar situation to Fuentes was not contrary to due process clause.

· Stands in slight contradiction to Fuentes. Similar situation with person defaulting on installment agreement with creditor seeking replevin

· However, here, judge oversaw issuance of writ rather than a clerk, defendant has immediate availability of a post-seizure hearing and court was concerned with the vendor’s interest in preventing waste of the property.

North Georgia Finishing, Inc. v. Di-Chem, Inc. (in notes): Garnishment statute violates due process where writ could be issued on basis of “conclusory” allegations without providing ∆ with an “early” hearing or “other safeguard against mistaken repossession.”

Goldberg v. Kelley (in notes): Public assistance benefits cannot be terminated without a prior hearing due to essential nature of benefits.

· Person receiving public assistance was cut off without notice or hearing.

· Court reasoned that due to their “brutal need” for such benefits, terminating them deprives them of the very means by which they live while they wait. This would create an injustice that cannot be tolerated by the court.

· Court ruled such recipients are “entitled to the opportunity for an evidentiary hearing prior to termination” of those benefits.

· Court also held the hearing had to be tailored to the “capacities and circumstances of those who are to be heard,” though not a full trial.

· Linked the “kind of hearing” that due process required with the importance of the plaintiff’s interest that was being withheld.

· Differences between Goldberg and Fuentes:

o Tangibility of the assets (Actual oven already within her home and benefit to receive monies not yet in the person’s possession).

o The strength of the interest each plaintiff holds in the property (Firestone presumably has a stronger claim to the oven than the government to the money).

o Difference in parties: Fuentes is between private parties rather than a private party and the government. Could be important distinction, as in Fuentes the government abdicated its power to a private party (lack of government oversight over government power). However, on the other hand, in both cases, it may not matter, as the party being deprived is concerned with the property, not the entity seeking to deprive them of it.

Matthews v. Eldridge (in notes): Due Process Clause does not require a hearing before the termination of Social Security disability benefits.

· Court reasoned that loss of such benefits did not present as strong a showing of hardship as the loss of public assistance benefits.

· Though court focused on “the degree of

nd heard.

· Court, as an arm of the State, can exercise power over an individual only when:

o Authorized by statute; and

o Said exercise is consistent with the Due Process Clause of the federal Constitution.

· Concepts of what constitutes due process for jurisdictional purposes has changed with times/increases in technology.

Types of Personal Jurisdiction:

General Jurisdiction – A defendant may have sufficient contact with the forum to warrant asserting jurisdiction over it for all matters.

Specific Jurisdiction – A defendant may have sufficient contact with the forum to warrant asserting jurisdiction over it for matters related to its activity with the forum without having sufficient contact with the forum to warrant general jurisdiction.

· Whether a corp. is subject to specific or general jurisdiction depends on the nature and number of contacts it has with the forum.

· Determining what constitutes sufficient business within the state, or what matters are related to activity within it, often are uncertain questions that may blur the distinction between general and specific jurisdiction.

· General personal jurisdiction requires deep roots and lots of contacts (example is my home)

State Long Arm Statutes:

Allows forum state’s court to reach out across state line and grab a defendant and have jurisdiction over him

If there is no long arm statute, then plaintiff must sue in their state (like Pennoyer)

It’s up to the states to determine which branches of law will be eligible for long arm statute

It’s not really a constitutional matter

Where can you sue relevant to where the defendant is? Example: If D is not in PA then you must look at PA’s long arm statute to determine if it allows to sue defendant in NJ

Basic pattern for personal jurisdiction patterns:

Where are you suing?

Where is the defendant?

Long arm statute?

LAS constitutional?

A. The Traditional Basis

Pennoyer v. Neff: Under the Due Process Clause, no person is subject to the jurisdiction of a court unless she voluntarily appears in the court, is found within the state, resides in the state, or has property in the state that the court has attached. (Traditional Rule)

· Mitchell sued Neff for failure to pay a legal bill. Neff owned property in Oregon he had obtained from the US under the Oregon Donation Act, and sometime later moved on to California.

· Mitchell could not effectuate service as Neff was not within the state; did so by publication according to an Oregon rule. After suffering a default judgment, Neff’s property was attached by Mitchell and sold at public auction.

· Mitchell then purchased the property at public auction for a measly $350, and turned and sold it to Pennoyer for a handsome sum.

· Neff came back to Oregon and sued Pennoyer for the property. Ended up at the supreme court.

· Supreme Court held that the original exercise of power was inappropriate, as the land was not attached at the outset of the litigation, meaning there was no jurisdictional predicate at the beginning of the proceedings.

· Court went farther to say that when exercising personal jurisdiction, as opposed to in rem or quasi in rem, there are three traditional bases for the same:

o Consent: The person can be subject to in personam jurisdiction if he appears in court. Consent may also be derived from a waiver, as found in forum selection clause, or where it is implied (see Hess v. Palowski).

o Residence: One is subject to in personam jurisdiction where he resides (or, more appropriately, where he is domiciled).

o Presence: The state court has in personam jurisdiction over a person found within the state. This seemingly has no qualifiers, meaning even presence in the state for 5 seconds, if served during that time, is legitimate.

· For corporations, there are four methods that developed over time out of Pennoyer:

o Incorporation: Traditionally, could be exercise jurisdiction in the state where the corporation was incorporated.

o Consent: as above.