CIVIL PROCEDURE OUTLINE
A. Purpose: It must be established that the defendant received adequate notice of the case against him; it’s only fair.
B. Constitutional Standard: Notice and a hearing are consistent with due process standards.
i. Each jurisdiction has a set of rules governing the correct method of service.
C. Types of Notice
i. Personal Service: in-hand service; still be the best and surest means
ii. Constructive Service
1.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)
a. there’s a need for lighter service requirements in this modern day and age with national transactions
iii. Substitute Service (different states)
1.Leaving papers a defendant’s dwelling house or usual place of abode
2.“Suitable age and discretion”
a. 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)
iv. Mail: traditionally not allowed, but has assumed greater importance over time
1.FRCP: Allows mail notification if the defendant waives personal service; it includes incentives (Note FRCP doesn’t explicitly allow mail)
a. (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
b. Also, if (D) refuses mail service, he must pay costs.
D. Requirements: method of notice (constructive) must be reasonably likely to reach
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.
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?
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.
1.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.
2.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
A. Form: signed by clerk, identifies the parties , and WHEN & WHERE (D) should appear
B. Issuance: If the summons is in proper form, the clerk will sign, seal, and issue it to the Plaintiff for service on the defenda
k, w/ 2nd copy sent to last know address.
B. Harry Grossman
C. Other Notes
i. Evictions Notices: Not always consistent w/ due process; depends on the circumstances (situations where there’s a risk of children taking them down. (Green, p. 191)
D. Etiquette of Service: Fraud
i. Case: Wyman v. Newhouse. Wyman (P) obtained jurisdiction by fraudulently inducing Newhouse (D) to come to Florida (saying her mother was ill) and then serving (D) with process.
ii. Issues: Is service invalid when procured through fraudulent means?
iii. Rule: Service of process procured through trickery renders personal jurisdiction invalid (Note: states normally/ must have statues against jurisdiction obtained fraudulently
1.Why is this different from Grossman’s tricky tactics?
a. Wyman crosses State lines, which matters significantly
i. It’s more acceptable to defraud people in their state, because it doesn’t enforce a right that the STATE wouldn’t have already had. In Wyman, the Florida court would not have had jurisdiction over (D). (find out he ever did anything in Florida)
2.Lack of Jurisdiction
Newhouse was not required to argue the merits in the original action in Florida: he was not a citizen. Also, a (D) may collaterally attack an default judgment in his home state when the rendering court had insufficient jurisdiction