CIVIL PROCEDURE OUTLINE
I.A. Purpose: It must be established that the defendant received adequate notice of the case against him; it’s only fair.
I.B. Constitutional Standard: Notice and a hearing are consistent with due process standards.
I.B.i. Each jurisdiction has a set of rules governing the correct method of service.
I.C. Types of Notice
I.C.i. Personal Service: in-hand service; still be the best and surest means
I.C.ii. Constructive Service
I.C.ii.i. was developed to notify defendants who could not be located within a state; long-arm statutes have been developed to notify defendants. (Example of constructive notice: mail, newspapers like in Mullane)
I.C.ii.i.i. there’s a need for lighter service requirements in this modern day and age with national transactions
I.C.iii. Substitute Service (different states)
I.C.iii.i. Leaving papers a defendant’s dwelling house or usual place of abode
I.C.iii.ii. “Suitable age and discretion”
I.C.iii.ii.i. leaving statues an individual’s dwelling house with some of suitable age and discretion who resides there may be sufficient (Federal Rule 4(e) (2)
I.C.iv. Mail: traditionally not allowed, but has assumed greater importance over time
I.C.iv.i. FRCP: Allows mail notification if the defendant waives personal service; it includes incentives (Note FRCP doesn’t explicitly allow mail)
I.C.iv.i.i. (D) gets 30 days to return the waiver, and after sending (D) gets 60 days to answer, compared with 20 days after personal service was delivered
I.C.iv.i.ii. Also, if (D) refuses mail service, he must pay costs.
I.D. Requirements: method of notice (constructive) must be reasonably likely to reach
I.D.i. Case: Mullane v. Central Hanover Bank (USSC) p. 183. (P) Central Hanover Bank petitioned for a judicial settlement of a trust and provided notice by publishing their intentions in a local newspaper; which was all that was required by statute. An out of state beneficiary did not receive notice.
I.D.ii. Issue: Where the names and address of parties are know, does notice by publication comply with due process? What’s the test for proper notice?
I.D.iii. Rule: When legal proceedings affect the life, liberty, or property interests of a person, that person must be provided with notice reasonably calculated under the circumstances to provide them with notice and an opportunity to present their objections. Actual notice isn’t required; it only needs to be reasonably calculated.
I.D.iii.i.i.Application: when the names and addresses of the parties are know, mail notification is a more “reasonably calculated” means of reaching parties instead of publication. Notice by publication even if required by a statutory provision, is not always justifiable and consistent with the 14th Amendment if the beneficiary would be denied his constitutional right.
I.D.iii.i.ii. However, notification need not have 100% chance of reaching each party, when it reaches a great number, since these beneficiaries of the same fund would act in the best interest of all (in this case, reasonable risks of not reaching are justifiable)
Notice & Mechanisms of Service – Summons & Personal Service
II. Federal Rules of Civil Procedure – Rule 4 Summons
II.A. Form: signed by clerk, identifies the parties , and WHEN & WHERE (D) should appear
II.B. Issuance: If the summons is in proper form, the clerk will sign, seal, and issue it to the Plaintiff for service on the defendant
II.C. Service with Complaint; by whom Made: made with a copy of the complaint and summons to a person 18 and up.
II.D. Waiver of Service
II.D.i. Each party (corporation, etch) has a duty to avoid unnecessary costs
II.D.ii. (P) can notify (D) of the commencement of the action, and request (D) waive service of a summons; failing to comply or respond will result in the court imposing cost of personal service on (D)…excuses: medical, didn’t receive, out of country, etc.
II.D.iii. An action starts when (P) sends a form (Form 1A) Notice of a Lawsuit and Request for Waiver of (personal) Service of Summons
II.D.iv. Domestic defendants have 30 days from the day that the waiver was sent to return the waiver, if returned later, (D) must bear the cost of formal service. If the waiver is returned within a timely fashion (30 days), (D) has 60 days after sending to answer the complaint, which is an incentive to sign the waiver.
II.D.iv.i. Note: Rule 4 in general sets forth specific means of making personal service on, among others, individuals, corporations, partnerships and other associations subject to suit.
II.E. Service Upon Individuals w/in a US Judicial Dist. (Other Ways to serve)
II.E.i. Service can be made on anyone in any jurisdiction. Dist. In the U.S; must be made with a copy of the complaint and the summons etc.; could be at (1) defendants dwelling or workplace, (2) with a person of suitable age and discretion who resides there (Doesn’t say 18). (3) OR to an agent authorize by appointment or law. (Like in Hess)
III. Notice and Mechanisms of Service (continued)
III.A.i. Sewer Service: US v. Brand Jewelers, Jewelers obtained false judgments by filing false affidavits of service, but not actually service (D)s p. 200. Constituted as a “widespread unconstitutional deprivation of property” b/c without Due process.
III.A.i.i. To avoid this: Delivery of Summons to a person other than the (D) was not allowed but NOW is in some states, it is. Like in NY: service can be left w/ person of suitable age and discretion at home or work, w/ 2nd copy sent to
hich allows the repossession of property before the opportunity to be heard, conflict with Due Process
V.A.v.iii. Rule: Notice and the opportunity to be heard must be provided prior to seizure of any protected property interest.
V.A.v.iii.i. Unless there are extraordinary circumstances such as: public interest/ policy, government official, special need for prompt action. The notice and a hearing must be granted at a time when the deprivation can still be prevented. No later hearing or damage award can undue the fact that an arbitrary taking of property occurred.
V.A.v.iii.ii. Replevin Laws: allowed creditors to regain ownership of property before hearing. In this case, statute was too broad and allowed to high a probability that a mistaken seizure could occur; The debtor had no notice prior, and allowed no opportunity to challenge the writ. Only after the property was seized could he have the opportunity for a hearing
V.A.v.iii.iii. Did Fuentes waive her constitutional right? Waiver of a constitutional right must be extremely clear. It says the property can be taken, but not in a manner that would result in the violation of a [waived] constitutional right.
V.A.vi. Allowing deprivation prior to a Hearing
V.A.vi.i. Case: Mitchell v. Grant Co. (1974) p. 229. W.T. Grant Co. (P) who sold goods to Mitchell (D) on credit (contract), obtained a writ of sequestration of the goods without providing Mitchell (D) a prior opportunity to be heard
V.A.vi.ii. Issue: Is sequestration of property, without providing an opportunity to be heard, acceptable provided that certain safeguards are met?
V.A.vi.iii. Rule: Statutes allowing for sequestration without a prior hearing do no violate Due Process, if certain procedural safeguards exist that minimize mistaken deprivation of property
V.A.vi.iii.i. Application: The Louisiana statute requires that where “one claims the ownership or right to possession of property, or mortgage, lien, or privilege if it is within the power of the (D) or debtor to (1) conceal, (2) dispose of, (3) waste the property, (4) waste the revenues from it, (4) remove the property from the premises
The writ will only be issued when : There’s a verified petition or affidavit of the facts (