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Civil Procedure I
Temple University School of Law
Ramji-Nogales, Jaya

Civil Procedure Outline
What Constitutes a Fair Process?
Due Process
I. Was life, liberty, or property at stake?
I. If yes, invokes Due Process analysis via 5th Amendment – prevents government from depriving any individual of life, liberty, or property without due process of law (applied to the states through the 14th Amendment).

II. Was deprivation by the state?
I. If yes, invokes Due Process analysis via 5th Amendment – When the challenged actions are those of the “state” itself – then they satisfy state action and thereby may implicate constitutional rights.

III. Was Due Process violated?
I. Use Mathews Balancing Test – Balance:
1.Interest of the individual affected by the deprivation
i. If liberty interest, seen from perspective of someone who has been erroneously detained.
ii. Property interests that are of vital importance to the defendant, such as housing or wages, will warrant greater pre-deprivation protections given their connection with the defendant’s basic needs.
2.Interest of the Government in effecting the current process
i. Interest the government is trying to protect
ii. Interest in efficient adjudication
iii. Fiscal and administrative burdens
3.Risk of erroneous deprivation under the current procedure
i. Sufficient Notice?
ii. Opportunity to be heard?
iii. Access to a lawyer?
iv. Other considerations?
4.Value of additional or substitute safeguards
i. Probable value in protecting interest of the individual
ii. Fiscal and administrative burdens for the Government
II. Hamdi v. Rumsfeld – writ of habeas corpus –U.S. citizen’s procedural challenge of detainment by government as an enemy combatant. Court holds that notice and hearing is required, but tailors it to the Government’s interest in light of the high government interest in security and low value of additional safeguards compared to the burden they would impose.
1.Balancing of Factors:
i. Hamdi’s interest – liberty – fundamental interest
ii. Government’s interest – security, administrative burden of an ongoing military conflict, maintaining sensitive secrets of national defense, and ensuring that the enemy is contained – high interest
iii. Risk of erroneous deprivation – lack of access to counsel, lack of notice of charges, lack of opportunity to be heard before a neutral decision-maker in classification as enemy combatant, lack of disclosure of evidence, hearsay evidence used – unacceptably high risk
iv. Value of additional safeguards – criminal-like proceeding requiring the government to produce evidence and witnesses:
a. Probable value in protecting Hamdi’s interest – limited value
b. Burden imposed on Government – producing military officers engaged in battle as witnesses and discovery into military operations intruding on the sensitive secrets of national defense – high burden
i. For the interest of the individual:
a. Notice of the factual basis for classification and an opportunity to be heard are required.
b. Third party/neutral evaluator required.
ii. For the interest of the Government:
a. Hearsay admissible as evidence
b. Ex-post hearing
c. Presumption in favor of the government’s evidence
III. Goal of the Mathews Balancing Test
1.Protect dignity, accuracy and equality – offers flexibility and ability to promote justice where it’s due
2.Takes into account interests and costs to both sides
IV. Problems with Mathews Balancing Test
1.Subjective and difficult to predict – lack of certainty
2.Places a lot of power in the hands of the judge – manipulable
3.Scalia’s opinion – criticizes balancing test as being too subjective and lacks predictability – it is ends driven and not means driven. Says bright line rule should be followed – either suspend writ of habeas corpus to detain Hamdi or let him go.

IV. If federal district court, was Service of Process satisfied under FRCP 4? – Compliance with the methods provided for in this rule is deemed to be compliant with the constitutional standard for notice.
I. Was Summons or copy served to each defendant? – FRCP4(b)
II. If Notice was not delivered, was there a mail service waiver? FRCP 4(d).
1. Encouraged under FRCP – duty of defendant to avoid unnecessary expenses.
III. Content – Does the Summons contain the following? – FRCP 4(a)(1):
1.Name the court and the parties;
2.Be directed to the defendant;
3.State the name and address of the plaintiff’s attorney
4.State the time within which the defendant must appear and defend;
5.Notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;
6.Be signed by the clerk; and
7.Bear the court’s seal.
IV. Was Summons served with a copy of the Complaint? FRCP 4(c)(1)
V. Was the Summons served by someone who is at least 18 years of age and not a party?
FRCP 4(c)(2)
VI. Was the Summons served within the time limit of 120 days after Complaint was filed? If not, did the Plaintiff show good cause? FRCP 4(m)
VII. If serving an individual in the U.S., was Notice: FRCP 4(e)
1.Delivered in accordance with relevant state laws? OR
2.Delivered to the individual personally? OR
3.Left at individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there? OR
4.Delivered to an agent authorized to receive service of process?
VIII. If serving an individual in a Foreign Country, see FRCP 4(f).
IX. If serving a Minor or Incompetent Person, see FRCP 4(g).
X. If serving a Corporation, Partnership, or Association in the U.S., was Notice: FRCP 4(h)(1)
1.Delivered in accordance with relevant state laws? OR
2.Delivered to an officer, a managing or general agent? OR
3.Delivered to any other agent authorized to receive service of process and – if the agent is authorized by statute and the statute so requires – by also mailing a copy to the defendant?
XI. If serving a Corporation, Partnership, or Association in a Foreign Country, see FRCP 4(h)(2).
XII. If serving the United States and Its Agencies, Corporations, Officers, or Employees, see FRCP 4(i).
XIII. If serving a Foreign, State, or Local Government, see FRCP 4(j).

V. Was constitutionally sufficient Noticeg

f erroneous deprivation without a lawyer; and
4.Value of additional safeguards
i. How could a lawyer affect the outcome of the case?
a. Gather evidence (Research and find experts)
b. Interview and cross-examine witnesses
c. Affidavits to support defendant’s character
d. Make due process arguments
e. Object to hearsay
f. Develop theme and story of the case
g. Present defenses
h. Ensure that the state’s burden is met and supported by reliable evidence
i. Protect client against bias and impropriety
II. Lassiter v. Dept. of Social Services – Indigent mother contends that the State was required to provide her with counsel under Due Process Clause. Court held that where parental interests are at strongest, State’s interests are at weakest and the risk of error is at a peak – due process will require counsel on termination of parental rights – relating to parental right – fundamental right.
1.Balancing of interests:
i. Interest of Lassiter – relationship/custody of her child – high interest
ii. Government’s interest – economically adjudicate – avoid expense of providing counsel – low interest
iii. Risk of erroneous error – proceeding involved no allegations of neglect or abuse upon which could form the basis for criminal charges; no expert witnesses testified; there were no specially troublesome points of law – low risk
iv. Value of additional safeguards – the lack of complexity of her case combined with Lassiter’s apparent disinterest in her son and the wealth of evidence on the government’s side made for a strong case against her – therefore, a lawyer would not have changed the outcome of the case
2.Dissent: Contrary to the majority’s opinion, an attorney for Lassiter might have provided better defense and changed the outcome by challenging hearsay evidence and witness testimony, telling Lassiter’s story, and bringing up her lack of access to her child due to her detainment.
3.Note: Bad facts make bad law – the fact that Lassiter was charged with first-degree murder and was convicted of second-degree murder probably prejudiced the court – a lawyer may have been able to protect her by re-framing her story
4.MLB v. SLJ – the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the 14th Amendment.

VIII. Other Considerations:
I. Did the defendant have the opportunity to present relevant witnesses and evidence?
II. Was Plaintiff’s showing sufficient?