Civil Procedure (Jurisdiction)
I. Due Process
a. Applies when government takes life, liberty, and property
b. Two requirements:
ii. Opportunity to be herd
c. Hamdi – What if there is an executive reason not to grant due process?
i. Mathews Test – to determine if Due Process is necessary must weigh three factors: 1) interest of party seeking process 2) cost to the government to provide the procedure 3) and the risk or erroneous deprivation
II. Notice – is comprised of a summons and a complaint (known as “service of process”) and is governed by Rule 4 of Fed. Rules of Civil Procedure
a. Mullane – the notice requires a constitutionally minimum effort to give parties notice of pending legal action in a reasonably calculated manner under all the circumstances (the court in this case considered mail to be adequate)
i. Greene – Simply posting s notice on a door does not pass the Mullane standard because can fall off or get stolen – simple formality does not pass constitutional muster b/c must make an honest effort to give service
1. In person services is always preferred, but certified mail is accepted
2. other ways are accepted so long there is strong assurance of receipt
a. Some have accepted e-mail as an acceptable means to effect service of process to foreign defendants if there is proof of service electronic (PoS-E – “proof of service electronic)
b. Khashoggi – If cannot give notice in person, then can leave at one’s abode or dwelling, and a person can have more than one home so long there is a indicia or mark of permanence.
i. Actual notice of a pending suit is not enough; must have strict compliance with “service of process” standards because:
1. Mandated by 5th and 14th Amendments
2. There can be no ambiguity in “service of process” because must know actual complaint and must know the person received notice
3. A diligent effort to attempt service is not enough; there must be actual “service of process”
c. Mid-Continent – What is there is an elusive defendant?
i. A person may avoid being served but cannot evade or deny being served.
ii. A person incorporated in a state designates the Sec of State to receive notice on their behalf
d. Wyman – a state does not have jurisdiction over a person if they are not served
ed to keep the process informal, non-adversarial, and efficient (lawyers would slow down process)
IV. Due Process and Jurisdiction: The Limit of State Power Over Person and Property:
a. Pennoyer – A state must establish jurisdiction over a person before they adjudicate their legal duties and rights and a state cannot encroach on another state’s sovereignty
i. A state’s failure to establish jurisdiction violates 14th Amendment right to Due Process
ii. Under Pennoyer there were three ways to claim jurisdiction
1. In personam – the party is physically in the state and therefore the state can adjudicate any legal duty and responsibility of the party
2. In rem – the property is located in the state and the cause of action is related to the land – a state can adjudicate the dispute
3. quasi in rem – there is land in a state, and the state attaches it or seizes it to adjudicate disputes involving owner of the property not in the state and not related to the land