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Civil Procedure I
Temple University School of Law
Hoffman, David A.

A.    DUE PROCESS: Notice & the Opportunity to Be Heard  

Opportunity to Be Heard:
·         Due Process requires an opportunity to be heard prior to the seizure of any property interests protected under the 14th Amendment.
o    Exception: Extraordinary circumstances (e.g. governmental or public interest reasons) may require postponing notice and hearing
o    Statutes allowing for attachment of sequestration w/o a prior adversarial hearing do not violate procedural due process, if procedural safeguards exist
o    Hamdi v. Rumsfeld – balancing the public interest (gov. security) vs. private interest (liberty) vs. 3rd interest (accuracy & error)
§  1. Ad hoc (special?) process is drawn up: (a) hearsay allowed, (b) presumption of guilt allowed
§  2. Hamdi (enemy combatant) gets actual notice and some limited opportunity to contest factual basis for that detention before a neutral decision maker b/c this is what our constitution demands
o    Matthews Test – balancing test for when a hearing is necessary before deprivation, and how complete the hearing must be Court are to balance:
§  1. The private interest
§  2. The public interest
§  3. The risk of erroneous deprivation of the interest b/c of the procedures used
Notice:
·         Mullane: To satisfy d/p, notice must be given by a means (1) reasonably calculated under the circumstances, (2) to apprise interested parties of the pendency of the action, (3) and afford them w/an opportunity to present their objections
o    Application of Mullane = very fact-specific and the balance is going to be different depending on the facts and larger systemic goals
o    5 ways to effectuate service via FRCP:
§  Personal Service – actual hand delivery [Burnham] §  Leaving copies of summons and complaint at dwelling or usual place of abode w/a person of suitable age
§  Substituted Service – to an authorized agent [NER v. Szukhent – appointing agent for service of process in k does not violate d/p] §  State Law methods under the provisions governing service on individuals in the courts of the state where the federal court sits
§  Waiver of service of process (D gets more time to respond 60 days instead of 21)
o    Personal Service of written notice – Classic form of notice (includes mailed service)
§  Exception: Service by mail may provide constitutionally adequate notice ordinarily, but service will be inadequate when the mail returns w/notice of non-delivery (Jones v. Flowers – Jones neglected to pay prop taxes and certified mail was not good enough b/c no one received it and was returned to commissioner; while DP does not require a prop owner receive actual notice, Mullane requires gov take additional steps – Commissioner could have resent the letter by regular mail or posted notice at the house)
§  Exception: Posting notice on property might be adequate under some circumstances, but it may be inadequate in an environment where it is known that the posting is likely to be removed (Greene v. Lindsey – whatever the efficacy of posting in many cases, it is clear that, in the circumstances of this case, merely posting notice on an apt door does not satisfy min standards of DP)
o    Notice by Publication sufficient where… alternative means of notice are not possible or practical or as a supplemental method of giving notice (e.g. in rem proceedings where property has been seized and the seizure provides notice as well)
·         Rule 4(d) – Action commences when P sends a form entitled “Notice of Lawsuit and Request for Waiver of Service of Summons” along with the Summons and Complaint by first-class mail or some other reliable means.
o    Positive Incentive for D’s to return waiver on time (30 days): They are allowed 60 days after returning the waiver to answer the complaint; otherwise they will be charged with the costs of providing formal service.
·         Rule 4(e)– Service Upon Individuals Alternative
i.         Federal courts can use the manner of service prescribed by the state law where the district court is located – enables Federal Courts to take advantage of state long-arm statutes or
ii.         By delivering a copy of the summons and complaint to the individual personally or leaving copies thereof at the individual’s home with a person of suitable age and discretion OR delivering summons and complaint to an agent authorized by appointment or by law
§  Best if P is confronting a statute of limitations deadline in a state where it continues to run until D is served b/c D may refuse to waive service
§  Service must be made by any person who is not a party and over 18 years old


B.     REMEDIES
·         FCRP 65(a) – Preliminary Injunction
·         Walker v. City of Birmingham – Petitioners are held in contempt for violating a temporary injunction issued by the court
o    Notice to the adverse party must be given before a preliminary injunction may be issued
§  1. Collateral Bar Rule: you must first follow the injunction before challenging the validity of the law
§  2. The message of the court: the law is majestic and it has to be complied w/even if it’s wrong
§  3. PPOV: judges are very insecure about their power – they believe some people going to jail is a small price to pay for the rule of law (public interests outweigh the private interests)
·         Lassiter v. Dept of Social Services – indigent mother who neglected her child argued her right to counsel under the DPC of the 14th amendment
o    Social worker testified à breathing difficulties, malnutrition, sever infection gone untreated; neither Ms. L or her mother made any contact w/the dept of social services; grandmother told SW that she cannot take care of child; checked w/people in the community
o    Abby Lassiter cross-examined social worker who firmly reiterated her earlier testimony
o    AL à seen her son more than 5-6 times and would like to keep him since children know their family
o    AL’s mother à denied saying she can’t take care of him; denied filing complaint against her daughter
o    Court terminated AL’s parental rights and AL appealed arguing that b/c she was indigent, the DPC of the 14th A entitled her to the assistance of counsel, and the trial court had therefore erred in not requiring the State to provide counsel for her
o    NC Court of Appeal à “while this State action does invade a protected area of individual privacy, the invasion is not so serious (really?) or unreasonable as to compel us to hold that appointment of counsel for indigent parents is constitutionally mandated”
o    SC of NC denied and appealed to SCOTUS
§  “Significantly, as a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel.”
§  Case of Matthews v. Elridge propounds 3 elements to be evaluated in deciding what DP requires, viz., the private interest at stake, the gov’s interest at stake, and the risk that the procedures used will lead to erroneous decisions
§  “the parent’s desire for and right to the companionship, care, custody, and management of his or her children is an important interest that undeniable warrants deference and absent a powerful countervailing interest, protection”
§  “A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status, is, therefore a commanding one.”
§  State’s interest à avoid both the expense of appointed counsel and the cost of the lengthened proceedings his presence may cause
§  Parent’s interest à to keep their fundamental right to keep and parent their children
§  “Expert medical and psychiatric testimony, which few parents are equipped to understand and fewer still to confute, is sometimes presented. The parents are likely to be people w/little education, who have had uncommon di

ems to be that both decisions will trigger a sea-change in lower court practice – one deeply unfavorable to the Ps but we won’t know the real effects of these decisions for many years to come
§  If you are P counsel framing a complaint, you would want to give facts that are plausible and non conclusory w/respect to every element of the COA that you are asserting in the complaint
§  What does plausible and non conclusory mean? This is really difficult to know
§  What both Iqbal & Twombly say is that judges are supposed to use their intuition and experience to figure out if the claim is going to be plausible
·                                             Some have said that it might lend itself to judges dismissing cases that he/she does not like
·                                             Might lead to more screening of the cases based on the judges dispositions
§  Is the rule 12(e) motion for definite statement obsolete by these cases?
·                                             There is definitely a tension between Twombly & motion for more definite statement

·         Answers, Motions, and Affirmative Defenses
o    Answer – Rule 8(b) provides for the D’s answer to the complaint. Per Rule 12(a), the D generally has 20 days to respond to the complaint, either through an answer or a pre-answer motion.  There are three types of responses to the complaint that can be contained w/in an answer: (1) Denials (2) Defenses (3) Counterclaims



o             Cases:
§  Fuentes v. Tucker – P’s two minor sons were killed by drunk driver in car accident and P was permitted to introduce evidence to prove that D was intoxicated after D admitted that fact in his amended answer (on day of trial)
·         If you are the D, you can control evidence strategically (which is what the D did here)
§  Zielinski v. Philadelphia Piers – Under PA law, when an improper and ineffective answer has been filed and the time allowed to amend the answer has passed, a party will be estopped from denying the allegation and any improper allegations will be deemed as true  
·         The fact that proper D knew does not matter b/c they were never served w/a proper complaint
·         You need to make sure that you serve the right D
§  Gomez v. Toledo– A P is not required to anticipate in his complaint a defense that a D might raise in order to state a claim for relief; Notice to the adverse party must be given before a preliminary injunction may be issued
§  Ingraham v. United States – Ps sued D for medical malpractice. The jury returned verdicts in favor of Ps and D moved for a reduction of damages based on a state’s statutory damage cap in medical malpractice actions. The District Court held that D waived the right to raise that argument because it should have been brought up in the answer to the complaint
·         Under Rule 8(c) of the FRCP, affirmative defenses listed in the rule or “any other matter constituting an avoidance or affirmative defense” that are not raised in the answer are waived. The major consideration behind the rule is preventing unfair surprise