Select Page

Civil Procedure I
Temple University School of Law
Green, Craig

CIVIL PROCEDURE – SPRING 2008
GREEN
HOW DO YOU GET A LAWSUIT STARTED?
Summons: Letting them know
Opportunity to Be Heard: Hearing them out
Personal Jurisdiction: Where can you sue geographically
·        These all have to do with FORUM LAW with CONSTITUTIONAL LIMITS.
PART I: DUE PROCESS/14th AMENDMENT
NOTICE
CONSTITUTIONAL LIMIT: Mullane v. Central Hannover
·         There was an NY statute that said notice could be given through newspaper ads. 
·         The court said that this type of notice is not permitted by the Constitution. 
·         A fundamental requirement of due process is notice must be reasonable in the following ways
o   To apprise interested parties of the pendency of the action and afford them an opportunity to present their objections
o   Reasonably convey the required information
o   Reasonable time to make appearance.
·         Implicit: If you have a way to contact them (here they had addresses and phones), then you should. – Their whereabouts were known in this case.
·         Notice does not have to successfully reach everyone but it must be reasonably calculated under the circumstances to reach those who can be easily informed. 
SUMMONS
Forum Law: Each jurisdiction has a set of rules governing the correct methods of making service. Traditionally, process consists of a copy of the Ps complaint with a summons directing the D to answer. 
FRCP Rule 4 – Constitutional Limit (envelopes Mullane)
SECTION A: Contents and Amendments
SECTION B: Issuance – has to go through the court (clerk) in order to sign it and gets the court’s seal
SECTION C: Service – How to give it to the D – has to be over 18 years old, but a party cannot serve another party. Or you can get a Marshall or a Grossman type. 
SECTION E: Different ways to service an individual. You can do it hand-to-hand or leave it at their dwelling. 4(E)(1): You can follow state law, or do what the federal rule says. 
SECTION 4(D): The D can waive the right to service –
·         The P requests a waiver – sends waiver to the D. – The D has a “duty” to say that’s okay.
·         We have the waiver process to save money. 
·         If I don’t waive service, then the P has to serve me. BUT: then the D has to pay for the costs of service and any attorney’s fees necessary to fight the motion to pay for the service.
·         You can send it by mail or other reliable means (the waiver) – you have to have filed the complaint but the waiver does not have to be signed by the clerk. 
WHY WOULD ANYONE NOT WAIVE SERVICE?
·         People are hard to serve
·         Do you have to open your mail? 
·         A particular reason why you wouldn’t accept waiver if we’re getting close to the end of the limitations period – statute of limitations is running down and you know that you can hide out until it runs out all the way. 
“WITHOUT GOOD CAUSE”
·         You have a constitutional right to be served. 
Harry Grossman – You can use trickery
Personal Notice – The D actually gets notice
Constructive Notice – Doesn’t require that the D actually gets notice, but depends on if the P tried to contact D with information that he had.
U.S v. Brand Jewelers
·         NO Sewer service.
Wyman v. Newhouse
·         Case where wife has her lover come to FL from NY thinking that she was going to move forever and she serves him. You can use trickery to serve but you cannot cross state lines with trickery.
Gumperz v. Hoffman
·         You can serve someone across state lines as long as you did not use trickery or fraud to induce them to cross state lines.  
If there is no notice, then the D doesn’t appear and there is a Default Judgment in favor of the P which is undesirable in our adversary system of justice. 
SERVICE – Opportunity to be Heard – Due Process – Pre-depravation hearing
The D must have an opportunity to be heard before his property rights are violated.
Fuentes v. Shevin – Notice/opportunity to be heard before depravation of property
·         Replevin case where Firestone took Fuentes’ stove when she defaulted on payments. 
·         Notice of hearing and an actual hearing are needed before deprivation of property.
·         Notice is required by our adversarial system of justice because if no notice is provided then the court makes a decision based on what the P says only and does not hear from the D. AND malicious use of the system AND it is unfair to the poor (because they can’t afford to pay to keep their stuff).
·         Even where sales Ks say that they waive their rights, it doesn’t state the process by which this is going to take place.
Mitchell v. W.T Grant Co. – common property interest + error safeguards = replevin w/o hearing okay
·         Co. gets a lien on Ps personal property because he was delinquent in payment without a sequestration hearing.
·         The Court finds NO violation of due process because both the buyer and the seller had current real interest in the property – so they both have property rights here. 
·         Also, here there was a POST-sequestration hearing where the P could have collected up to attorney’s fees if the Co. acted in error.
North Georgia Finishing Co. v. Di-Chem, Inc.
·         Due process applies to corporations as well as to individuals. It is not always for the little guy. Bank accounts are property and cannot be attached without a hearing. 
CONNECTICUT v. DOHER – CONSTITUTIONAL TEST!!
Guy gets sued for battery and they put an attachment on his home. 
3 Part Matthews v. Eldridge Test
·         Constitutional Test: 
o   (1) Consideration of private interest being taken by the attachment
o   (2) examination of the risk of error versus other procedures
o   (3) private interest of the person who is requesting the attachment.
The court concludes that since they put an attachment on his house due to battery litigation with no hearing or notice this violates the 3 part test and is unconstitutional. 
This is a plurality opinion à the bond is necessary, but not sufficient to pass constitutional muster. 
WHICH COURT?
PERSONAL JURISDICTION #1 (PENNOYER THROUGH ASAHI)
Where can the P sue someone? 
START WITH RULE 4(K) when you are in federal court!
“In personam:” the court exercises its power to render a judgment for or against a person by virtue of his presence within the state’s territory or his citizenship there.   A court’s power to bring a person into its adjudicative process; jurisdiction over a defendant’s personal rights, rather than merely over property interests.
“In rem:” the court exercises its power to determine the status property located within its territory, and the determination of the court is binding with respect to all possible interest holders in that property. 
“Quasi-in-rem:” the court renders a judgment for or against a person but recovery is limited to the value of property that is within th

was a resident in CA. Then he died and they refused to pay. His beneficiary (McGee) sued in CA court and won. She tried to get it enforced in Texas and the court refused.  
·         Court ruled that there was no due process violation because there were sufficient contacts and adequate notice – The Nationalization of Commerce.
·         Reasons why there was a substantial connection with that state: (1) the K was delivered in Ca (2) the premiums were mailed from there and (3) the insured was a resident of CA at death. 
·         The insurance company had sufficient notice.
GRAY AND MCGEE ARE THE MOST LIBERAL APPLICATION OF PERSONAL JURISDICTION.
WORLD-WIDE VOLKSWAGEN CORP. v. WOODSON (U.S. 1980)
·         Bought Audi in NY got in accident in OK and were injured. WWV only did business in NY, NJ, CT. 
·         General Rule: A state court may exercise PJ over a nonresident D only so long as “minimum contacts” exist between the D and the forum state (International Shoe).
o   2 FUNCTIONS: 
§ (1) It protects the D against the burdens of litigating in a distant or inconvenient forum, and
§ (2) it acts to ensure that the states through their courts do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.
·         The focus in this case is on purposeful availment. The Court found that there were insufficient contacts in OK because: (1) They carry on no activity at all in OK (2) They don’t sell or perform services there (3) They avail no privileges of OK laws (4)They don’t solicit business there through advertising (5) they don’t sell cars there either.
·         Foreseeability of suit is required, not just foreseeability of an accident – the courts tell us what is foreseeable.
·         The court remains faithful to federalism. They also abandon Pennoyer, but they interpret minimum contacts reasonably. 
Insurance Corp. Of Ireland V. Compagine Des Bauxites De Guinee (U.S. 1982)
·         PJ is a cross section of individual rights (because they can waive it) and state sovereignty.   PJ is individual liberty preserved by due process.
Keeton v. Hustler Magazine, INC., (U.S. 1984) – Ps minimum contacts don’t matter
·         Keeton (P), a NY resident, brought suit against Hustler Magazine (D), an OH corp., in a court in NH. Hustler argues that the Ps contacts in NH are insufficient and that it is unfair that she brought suit in the only state that she could.
·         D had plenty of contacts in the state of NH because they sold thousands of magazines there per month. Whether or not the P has sufficient contacts in the forum state is irrelevant.
Note #6 General v. Specific Jurisdiction
Related contacts are weighed more heavily in favor of jurisdiction than unrelated