Notice Generally: Even if the court has authority to judge the dispute between the parties or over the property before it, the court may not proceed unless D received adequate notice of the case against him.
1) Does service and summons satisfy the forum law? (Rule 4)
1. Personal hand to hand Service
2. Substitute Service: this is some form of service other than directly handing papers to the D.
a. Leave at Dwelling: most common substitute service provision, it allows the process papers to be left at D’s dwelling within the state if D is not at home. Usually also requires them handed to an adult who is reasonably likely to give them to D.
i. FRCP 4(e)(2) allows papers to be left with a person of “suitable age and discretion residing in the dwelling place in question.”
b. Mail: some states and the fed system allow service by ordinary first class mail. However usually this method is only allowable if D returns an acknowledgment or waiver form to P’s lawyer. If D does not return the form, some other method must be used.
i. FRCP 4(e)(1).
3. Service on Out-of-Staters: where D is not present in the forum state he must be served out of state. But this only applies if the state’s long arm statue covers the type of case and D in question.
a. Mail Notice: many states say that registered or certified mail is ok.
b. Public Official: service can be made sometimes by serving a state official plus mailing to D.
c. Newspaper Publication: If D’s identity or residence is unknown, some states allow service by newspaper publication. But this may only be used where D truly cannot be found by reasonable effort. (Mullane)
a. Corporate officer: many states say that if the corporation wishes to be incorporated in a state they must designate a corporate official to receive process for suits against the company. Service on this designated official is adequate notice.
b. Federal Rule: allows service on any person associated with the corporation who is of sufficiently high placement.
i. FRCP 4(h)(1) provides that service on a corporation may be made by giving the papers to “an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.”
2) Does service and summons satisfy the constitutional minimum for due process (mullane)?
5. Constitutional Due Process: fourteenth amendment prohibits the exercise of jurisdiction over a D who has not been given reasonable notice of the suit.
a. What matters is the appropriateness of the notice prescribed by statue and employed, not whether D actually got the notice.
6. Reasonableness Test: In order for D to have received adequate notice, it is not necessary that he actually have learned of the suit. Rather, the procedures used to alert him must have been reasonably likely to inform him, even if they actually failed to do so. (Mullane)
a. Personal Service will always suffice as adequate notice.
Wyman v. Newhouse, where Woman (whose husband had died) and married man were involved in an affair. She sent him various telegrams from Florida (he lives in NY) telling him that her mother was dying in Ireland and that she wanted him to come to Florida to see him once more before she left. When he came to FL, her attorney served him with process for a suit of $500K, which he ignored and returned to NY. She got a default judgment against him in FL because he didn’t show up. She wants to go to NY and get the NY court to enforce the judgment she got against him in FL. Holding: A judgment procured fraudulently lacks jurisdiction and is null and void. A fraud affecting jurisdiction is equivalent to a lack of jurisdiction.
EXCEPTION: Gumperz v. Hofmann Holding: Where process is served by trickery, but the party is already in the jurisdiction of his own free will, there is a duty on the part of the party to accept the service.
Service/ Opportunity to be Heard: D must not only be notified of the suit, but must also be given an opportunity to be heard. Before his property can be taken, he must be given a chance to defend his claim whenever t
an opportunity to participate in this process & might influence her willingness to accept the force of this legal system
o makes the rest of us feel like our legal system is more legitimate too
Sniadach v. Family Finance Corp. strikes down WI prejudgment wage garnishment procedure as violative of due process guarantees
Holding: A prejudgment garnishment is a taking which may impose tremendous hardship on wage earners with families to support – an opportunity to be heard must be afforded
Mitchell v. WT Grant Co. where Petitioner had his property (vendor’s lien) sequestered by order of LA state trial judge under the following statutory requirements:
Sequestration may be had where:
– Specific facts for allegation must be included
– Verified affidavit required (as opposed to a complaint)
o this is more serious than a complaint; the penalty if you are not telling the truth here is PERJURY
– The creditor has filed a sufficient bond to protect the vendee against all damages in the event the sequestration has been shown to be improvident
– Debtor may immediately seek dissolution of the writ, which must be ordered unless the creditor proves the grounds upon which the writ was issued
Petitioner alleges violation of 14th Amendment rights
Holding: Where the facts relevant to obtaining a writ of sequestration are narrowly tailored (as in LA), these standards do not violate Due Process requirements.
Why is this not like Fuentes?
– In Fuentes, we must allege that something was “wrongfully detained”
o Here, everything is very simple & documentary
– have you protected a lien? Was it filed?
– less danger that a mistake will be made, less usefulness in allowing a hearing to be had then in Fuentes