Civil Pro Outline
Due Process of Law
A – Notice and the Opportunity to be Heard
1) The Process Due: Of Context and Subtext
– Hamdi v. Rumsfeld – Supreme Court
American citizen was picked up in Afghanistan while fighting for the enemy. He was detained and transported back to the US as an enemy combatant. The father filed a writ of habeas corpus to test the legality of the detention and claimed son was being kept in violation of 5th and 14th Amendments. Gov’t files a motion to dismiss and attaches the Mobbs declaration (hearsay) to support its contention. The question was if the gov’t had the right to detain a US citizen designated as an enemy combatant. The government acted within the statutory language of the Authorization for Use of Military Force but the court applied the Matthews Test to determine whether his due process could be curbed.
– The more process we have the more adversarial process we will have
– The Matthews Test (Matthews v. Eldridge)
This analysis dictates that the process due in any given instance is determined by weighing the private interest that will be affected by the official action against the government’s asserted interest, “including the function” involved and the burdens the government would face in providing greater process. The calculus contemplates a judicious balancing of thee concerns through and analysis of “the risk of an erroneous deprivation” of the private interest if the process were reduced and the “probable value, if any, of additional safeguards.” (1) private interest at stake (2) government interest (3) the risk that the procedures will lead to an erroneous decision.
2) Notice: The Constitutional Dimension
The Elusive Defendant – Hypo
Any person over 18 and not party to the complaint may serve process (Rule 4(c))\
Service of process was historically a government undertaking (marshals)
Amendments made this undertaking private
Furnished to defendant – Summons plus copy of the complaint
Rule 4 – Summons
(a) Form – signed by clerk, directed to defendant, state the time and place
(c) Service with complaint – summons served with copy of complaint, by any person not a party and over 18
(d) Waiver – asks defendant to waive service requirements which means that they relinquish their rights to formal server process, to avoid unnecessary costs,
(e) Service within US – pursuant to law of the states, delivering copy in person, or leaving copes thereof a the individuals dwelling house or usual place of abode with some person of suitable age and discr
Corp. and Adnan Khashoggi
Khashoggi was an international traveler and had many homes. Service was made against him at his home in New York City. He claims his real home is in Riyadh. Service was given to the housekeeper at his NYC home. The court found that under Rule 4(e) it could be reasonably calculated that this was his dwelling house or usual place of abode. The housekeeper was of suitable age and discretion. It is hard to determine a usual dwelling house. But he owned, renovated, and stayed at the home showing permanence. He lived there when the process was served.
– Mid-Continent Wood Products v. Harris
Harris purchased lumber for use and did not pay. Mid-Continent sued for breach and tried to affect service. The marshal delivered the service to the wrong door. Court tried to uphold defendant knew about service. Court found it unwise for a court to make its own rule of authorization. A liberal construction of the rules cannot be utilized as a substitute for the plain legal requirements of service.
