1. Themes and Background
· English System
o Law Courts (Royal)- only damages could be given. Used a jury.
§ Compensatory Damages- compensate
§ Punitive- Punish the D for egregious behaivor
o Equity Courts (Chancery)- equity, injunctions, specific performance, rescission, and reformation, and restitution (not damages) No live testimony by witnesses. Only sworn statements by affidavits.
o Important Tenet- One cannot obtain an equitable remedy if the legal remedy is adequate.
· Modern Law
o 1938- Congress abolished the separate courts and created single type- civil action.
§ Delaware and Virginia still have 2 courts
o Judicial system’s desire for free exchange of information and evidence seems at odds with the adversary system.
o The goal of the process is to do justice, to achieve the just and fair resolution of the dispute.
2. Service
· Due Process Clause- 5th for state court, 14th for federal- due process of law.
Mullane v. Central Hanover Bank and Trust Co- scotus- Shows basics
o FACTS: NY statute allows banks acting as trustees to pool small trusts into one large account to take advantage of economic scale. The statute required the bank to make accounting statements to the court to determine if they invested properly and it could give fee to bank and extinguish beneficiaries right to sue the bank for negligence. Beneficiaries were entitled to appear at the hearing on the accounting. They must know about it though and statute allowed them to do so by publication.
o HOLDING: An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonable calculated, under all the circumstances, to apprise interest parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required info, and it must afford a reasonable time for those interested to make their appearance
§ Must do Best Notice practicable
§ In this case, 3 groups:
· 1 group of beneficiaries who could not be found even with due diligence- publication was constitutionally permissible
· 2nd group- whereabouts not known in ordinary course of business, but could be found upon investigation and expense- court still allows publication
· 3rd- places were known- court said must give individual notice, this time by mail was fine.
§ Due process does not require that the gov’t “must provide actual notice, rather, it requires that it must attempt to provide actual notice.”
Background
· Service= method of delivering process
· Process= copy of complaint & summons
o Summons= official doc from the court, signed by the clerk. Informs D that she has been sued, has a particular time to repond, and failure to make a timely response may lead to entry of default J. Usually a P gets blank summons, fills in the name, goes to the court to get it stamped with a case #, gets it signed, and gets the seal.
· Rule 4(m)- P has 120 days after Rule 3- complaint is filed. If not filed, usually dismissed w/o prejudice unless have good reason.
· Rule 4(c)(2)- Service may be by anyone who is not a party and who is 18 years old.
o Rule 4(l)- Proof of service- civilian process server must make proof of service by affidavit. Even w/o this, case doesn’t get thrown own. It is just strong evidence that it was served properly.
Methods of Service of Process on Human D
· Rule 4(e)(2)- 3 methods- 1) personal service 2) substituted service 3) service on agent
o Exceptions- Rule 4(e)(1) allows incorporation of state law methods and 4(d) allows waivers
o There is no hierarchy to the 3 basic methods.
o Personal Service- can be given anywhere within the forum state
o Substituted Service-
§ 4(e)(2)- “at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.”
· Nothing says D must actually receive it.
§ What is dwelling house or usual place of abode?
· Usually where they presently live, or have multiple homes (ie. Not abandoned)
· Jaffe & Asher v. Van Brunt-billionaire had 12 houses worldwide. His NY apt was deemed an appropriate place even though he only lived there one month of the year. Also, he was in the apt was it was served.
o Greene v. Lindsey (SCOTUS 1982)-
§ SCOTUS- Brennan, held that service by posting did not satisfy minimal standards of due process where notices posted on apartment doors in the area where the tenants lived were “not infrequently” removed by children or other tenants, where the posting resulted in a failure to provide actual notice to the tenant in a significant number of instances, and where posting occurred after only one effort was made to personally serve the tenant. Violated due process
§ Reasonably calculated is good enough. Mail would have been better. Must consider the circumstances. Important part: they knew this didn’t work.
§ Court did not completely rule down this method. Woudn’t use this method of service for this type of housing, but uncertain as to other circumstances. Mail would be better says SC
§ Dissent (O’Connor)- Also, sending notice by mail also has flaws, such as loss, disdelivery, delay, or theft. Hard for projects. By using posting notice it atleast gives assurance that notice has gotten as far as tenant’s door.
o Mullane v. Central Hanover Bank and Trust Co. (1950)- “Statutory notice by publication was adequate only for those beneficiaries whose whereabouts were unknown or whose rights were conjectural when the action began. Known beneficiaries, whose whereabouts were reasonably ascertainable, were entitled to notice by mail.” Notice “REASONABLY CALCULATED” to apprise interested parties–in a wide range of notice settings.
o National Development Co. v. Triad Holding Corp & Adnan Khashoggi (2nd 1991)- appellant was served with the summons and complaint at his New York apartment (he was there). Appellant claimed he was a resident of Saudi Arabia, where he maintained a large compound. He had 12 houses around the world. The notice was served to a maid who was a “person of suitable age and discretion then residing.” This was the best means, “reasonably calculated) from Mullane, to serve notice. He even put this address down in a bail application. Issue was: Is this second home in NY a “dwelling house or usual place of abode.” YES. He owned, furnished, and spent a considerable amount of time there. He was also there when it was served
o Mid-Continent Wood Products v. Harris (7th Cir. 19
0(b)- Allegations must be set forth in numbered paragraphs “each of which shall be limited as far as practicable to a statement of a single set of circumstances”
· Rule 10(c)- allows incorporation by reference to other paragraphs.
· Rule 10(a)- caption with= title of action, file #, designation of the pleading, & case #
· Rule 11(a)- parties are not required to plead under oath.
· Fuentes v. Tucker (Cali 1947)- Evidence which is not pertinent to the issues raised by the pleadings is immaterial, and it is error to allow the introduction of such evidence.
Complaint
· Rule 8(a)- 3 Requirements- Short and Plain: 1) Statement of subject matter jurisdiction 2) Statement of the claim 3) demand for judgment
o Without all 3, it usually will be dismissed without prejudice (or with leave to amend)
o This applies to ANY CLAIM- also counter, cross, 3rd party
· Rule 8(a)(3)- Demand for Judgment- “demand for judgment for the relief the pleader seeks”
o Do not need to plead specific amount of damages (unless diversity of citizenship), but will often do so.
o Rule 54(c)- P is entitled to recover whatever amount and whatever type of relief shown appropriate at trial, regardless of what she asked for in the demand.
§ Exception: If default judgment, P cannot recover more than she sought in her demand
· Rule 8(a)(2)- Statement of the Claim- “short and plain statement of the claim showing that the pleader is entitled to relief”
o Can be attacked for 2 reasons
o 1) Legally Sufficient- if dismissed, usually w/o prejudice. Court only looks at the complaint on its face, not the evidence.
§ Contrast w/ SJ where they can look at evidence. SCOTUS- issue is not whether a plaintiff will ultimately prevail, but whether she is entitled to offer evidence to support her claims.
§ Question: Does the law recognize a right to recover on the facts P has alleged?
· Trial court is not free to change the law
§ They can appeal if P loses bc it is a final judgment. P then could attempt to convince the court of appeal to change the law.
§ Sua Sponte- court may dismiss on its own OR
§ Rule 12(b)(6)
o 2) Factual Sufficiency
§ Code pleading- courts would impose standard of “statement of the facts constituting a cause of action,” but would make them plead “ultimate facts.” If too general, court would dismiss bc the court claimed they pled “conclusions of law.” If too specific, they were pleading “evidentiary facts” and the court would dismiss.
§ Rule 8(a)(2)- should an plain statement of the claim showing that the pleader is entitled to relief. This was an attempt to liberalize the pleading.
