Select Page

Civil Procedure I
Temple University School of Law
Ouziel, Lauren M.

Civil Procedure I

Lauren Ouziel

Spring 2016


When evaluating cases:

1 – Did D get proper NOTICE? – Waivable
2 – Decide what state court it could go to using PERSONAL JURISDICTION – Waivable
3 – Can you bring it up to federal court via SUBJECT MATTER JURISDICTION – NOT Waivable
4 – Which federal court do you use for that state via VENUE? – Waivable & Sua Sponte
5 – Should state or federal law apply via CHOICE OF LAWS?


Number of questions per topic, including policy question:

1 – Erie
1 – Venue
1 – Preclusion
Multiple – PJ
Multiple – SMJ

Incorporate policy where you can
Argue BOTH sides



The gov’t must notify the persons affected and afford them some chance to “tell the other side”
Gov’t deprivation of life, liberty or property
5th Amendment

“nor to be deprived of life, liberty, or property, without due process of the law”

14th Amendment

“nor shall any State deprive ANY person of life, liberty, or property without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws”

FRCP Rule 1

Scope: these rules govern procedure in all civil actions and proceedings in the US
Purpose: to secure just, speedy, & inexpensive determination in every action & proceeding

Substantive Harms = harms you automatically think about

Personal injury, emotional harm, monetary damages

Procedural Harms

Notice of charges, timing of hearing and notice, opportunity to be heard, right to confrontation, right to counsel, neutral decision maker, judicial review

Evaluating Due Process Claims

Matthews v. Eldridge – Balancing test to determine if DP has been given(comes out of Hamdi)

Due process requires notice and the right to be heard
Cons of test = lack of principled standards (these cases will recur time and time again), highly subjective and manipulable, focused on risk of error (but DP is also about individ. dignity, equality, and tradition)
Pros = realistic appraisal of significance of procedural costs to procedural rights, any C test must be flexible enough to apply to vast range of DP scenarios

Matthews Test in Action

Hamdi v. Rumsfeld – (citizen detainee challenging enemy combatant classification)

Facts: gov’t used Mobbs declaration as evidence to hold him. Filed for HC.

Test for when a hearing is necessary before deprivation, and how complete the hearing must be

Is a question of whether the procedures are enough to get a just result

When gov’t is depriving life, liberty, property you must weight

Private interest

What is the gov’t depriving you of?
Hamdi’s = personal freedom

Gov’t fxn and burden

Here, the gov’t argument is grounded in the C

Risk of erroneous deprivation of private interest
Probable value, if any, of additional/substitute safeguards

Safeguards supported by district courts are not going to help that much

O’Connor Opinion
Hamdi gets: (1) Notice of factual basis for classification, (2) fair opportunity to rebut gov’t, (3) neutral decision maker, (4) counsel
Gov’t gets: (1) hearsay evidence, (2) rebuttable presumption favoring gov’t evidence

NOTICE: Timing and Form

Generally: Notice must come BEFORE deprivation of rights. But if not, could be saved by: Judicial discretion in giving orders; Posting of bond for damages; Quick hearing
FRCP 4 – Summons/Serving

4(a)(1) Contents of Summons – include names of parties; time which D must appear and defend; be signed by the clerk
4(c) Service – with a COPY of the complaint; served by 18+ who is not a party;
4(d) Waivers- requests must include a copy of the complaint; be sent by first class mail or other reliable means; proof of service is not required
4(e) Method – (1) following state law for service or (2)(a) personal service, (b) leaving at individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there, or (c) to specifically authorized agent;
4(g) Minor/Incompetent – follow state law
4 (h) Serving a Corporation, Partnership, Assoc.- follow 4(e)(1) or deliver copy to officer, managing or general agent, or any other agent authorized
4(L) Proof of service – must be given in Ct. unless waived; proof by server’s affidavit;
4(m) Time Limit – 120 days after complaint filed, or dismissed, court can extend


Generally: Notice should be provided before gov’t deprives you of rights, but other procedural protections may suffice


Dependent on facts

Greene v. Lindsay

Determination of method/form of service is contextual and related to the facts
Facts: 3 tenants of apartments were evicted for not paying rent. D’s weren’t given proper notice- notice posted on their doors. Ds bring class action
KY Statute provided hierarchy of forms of notice: find defendant on property, leave copy of notice with family member 16+, post notice on property
Even if posting is usually acceptable, here it is NOT

Notices were often removed from homes/doors and Ps knew that
Mail might be better option

BUT: Does not mean posting is unconstitutional or mailing is constitutionally required
RULE: notice must be reasonably calculated in context to (1) let the parties know about the lawsuit and (2) give them a chance to present objections

Posting on their door was not sufficient here


Mullane v. Central Hanover Bank & Trust Co.

Facts: bank giving notice of foreclosure by publishing in paper
RULE: Notice must be reasonably calculated in context to (1) let parties know about the lawsuit and (2) g

able injury, loss, or damage will result BEFORE the adverse party can be heard
must certify it in writing

Walker v. City of Birmingham

Facts: Birmingham officials ask Ala. Circuit court for injunctive relief against 139 people and 2 organizations to stop protesting. Circuit court grants TRO to prohibit violating city ordinance- no protests without permits. 5/8 people were served with this injunction and then publically declared their intention to disobey- on Good Friday and Easter. Walker didn’t appeal the TRO, but did appeal the Contempt charge. Argued that this injunction was invalid because it violated their free speech, was vague, overbroad.

Challenged Injunction: Unconstitutional because vague, overbroad, prior restraint
Challenged Ordinance: On its face: Standard-less discretion, As applied: Arbitrary and discriminatory
Ct. validates the injunction: no effforts to dissolve injunction or obtain permits until after protests

SC Alabama affirmed

TRO was a procedural shield à Ds cant protect the unC of the ordinance
They didn’t actually need the TRO à could have just arrested them from marching without a permit BUT then the ordinance would have been challenged for being unC for violating 1st A right and 14th A right

But here, they can’t challenge it bc they wrote the ordinance into an injunction
With a TRO the only thing that can be challenged is whether the court had jurisdiction to give it = Collateral Bar Rule

Collateral Bar Rule – Unless transparently invalid, injunction must be obeyed until reversed on appeal. Can NOT challenge validity of injunction in contempt (collateral) proceedings

“Transparently” is unclear – Would seem injunction and statute were clearly discriminatory, but not enough to overturn

RULE 65: for TRO must show imminent injury, loss, damage: have to prove you don’t need notice
65(b)(4) Ds have 2 days to make motion to dissolve injunction à they waited 5 days
Order to Show Cause: need to come into court and show why I should dissolve the injunction à tell me why you violated the TRO and why that was valid
Court says Petitioners should have followed judicial procedure by petitioning courts to review the injunction before violating – they could have appealed the injunction or reapplied for a permit

They were flouting the authority of the court and going against a specific judge

Decision focused on petitioner’s respect for judicial system