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Civil Procedure II
West Virginia University School of Law
Cummings, Andre Douglas Pond

I.       Due Process of Law
A.   Notice and the Opportunity to Be Heard
Tackling a Service of Process Question
Serving Process
1. Process consists of a summons and a copy of the complaint (Rule 4)
2. Process can be made by any non-party who is at least age 18 (Rule 4(c)(2))
3. Rule 4(e)(2) – three choices for serving processes (1) personal service (Harris), (2) substituted service (dwelling house or usual place of abode; serve someone of suitable age and discretion who resides there) (Khashoggi), (3) service on an agent (Szukhent), or (4) Rule 4(e)(1) – use any method allowed by state law (either the state where the court sits or the state where the service is effected)
4. Waiver of Service – Rule 4(d); not service of process by mail; it is waiver by mail
5. What are the geographic limits on serving process – Rule 4(k)(1)(a): can serve process throughout the state in which the federal court sits; can serve process out of state only if a state court could serve process outside of the state
Constitutional Standard for Notice
1. Mullane: notice reasonably calculated under all the circumstances to apprize interested parties of the pendency of the action and afford them an opportunity to present their objections
2. Rule 4 meets the constitutional standard
Opportunity to be Heard
See out Notes (Mathews Test, etc)
1.                 The Process Due – of Context and Subtext
a)                Cleveland Board v. Loudermill, 470 U.S. 532
Holding: When an Ohio civil servant is provided right of property in continued employment that can only be terminated by cause, that employee must be provided due process in termination through a (1) notice, (2) pretermination “opportunity to respond,” and (3) the post–termination “administrative procedures” as set out by Ohio Statute § 124.34.
Root Requirement of Due Process: Mullane v. Central Hanover Bank & Trust Co. established that deprivation of a property right must “be preceded by [1] notice and [2] opportunity for hearing appropriate to the nature of the case” (numbering added).
Pretermination hearing requires, in general, “something less” than a full evidentiary hearing prior to adverse administrative action, an initial check against mistaken decisions[1] b)                Note – The Matthews Test
Mathews v. Eldridge, 424 U.S. 319 – determination of the necessity for a pre-deprivation hearing should weigh the competing interests of:
Private interest
Governmental interest
Avoidance of administrative burden
Ability to efficiently terminate the problem
Risk of erroneous deprivation
2.                 Notice – The Constitutional Dimension
a)                Greene v. Lindsey, 456 U.S. 444
Holding: Kentucky deprived the tenants of due process of law by failing to provide them with “adequate notice” before eviction. If 1) conditions do not allow for “reasonable notice” and 2) no other “feasible and customary substitutes exist,” but 3) a method of notice is found that 3a) can “enhance” the reliability of the ineffective means of service, and 3b) that additional method that is “efficient and inexpensive,” the state must use the additional method to attempt to serve notice
Holding: 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
Dicta: Posted service accompanied by mail service is cons

ord them an opportunity to present their objections”
3.                 Notice – Const. Requirements Ritualized – Rule 4
a)                National Development Co. v. Triad Holding Corp and Adnan Khashoggi, 930 F.2d 253
Holding: the judgment is affirmed because the apartment was a “dwelling house or usual place of abode” in which he was actually living at the time of service because a person can be determined to have multiple “dwelling house(s) or usual place(s) of abode.”
Dicta: “Actual notice” is not sufficient to cure a void service
Fed. R. Civ. P. Rule 4(e) (2) (was 4(d) (1)): summons may be affected by delivering a copy of the summons and of the complaint to the individual personally or leaving copies at the individual’s “dwelling house or usual place of abode” with some personal of suitable age and discretion
Person serving process must be (1) of suitable age and (2) not a party to the suit
[1]Marshall: When an employee is terminated for cause, the court should establish the rule that an evidentiary hearing with confrontation of witnesses should be provided for if there are disputes with regards to the facts surrounding the dismissal.
Brennan: In cases unlike the one before the Court, Brennan feels that the right to evidentiary hearings should be afforded. 
Rehnquist: Ohio’s providing tenure to civil servants in their employment does not constitute a property right in employment; therefore the Fourteenth Amendment does not apply.