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

Due Process

Applies when a life, liberty, or property right is at stake

Opportunity to be heard

To tell whether Due Process was afforded we use the Mathews Test

Came from Mathews v. Eldridge
Balances private interests against government interests and evaluates the risk of erroneous deprivation of rights

I. Notice
A. What is Notice?
· Something reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action
o Came from Mullane v. Central Hanover Bank & Trust Co.
o Established in Rule 4 FRCP

B. What counts as Notice?
· Rule 4(e)(2) is the rule for notice on persons within a US Judicial District
· Greene v. Lindsey
o The sheriffs who served notice operated under a statute allowing posting of notice on doors of the dwelling house.
o Posting notice on an apartment door where such notice was known to be often stolen, did not count as notice . . . court suggested using certified mail
· National Development Co. v. Triad Holding Corp & Adnan Khashoggi
o Defined what counted as a dwelling house
o Said that a house had to have some sufficient indicia of permanence
o In that case, the Olympic Tower was recently renovated for Khashoggi’s personal liking
o You can have more than one dwelling house

Ruling (concerning Miss WV/law student)
· Email can be used under 4(f) to serve foreign individuals who have been difficult to serve.
· Used Pos-e which means Proof of Service Electronic
· Mid-Continent Wood Products v. Harris
o Said that actual notice was not good enough. As long as service was valid under Rule 4, you don’t even have to have actual notice.
o Said that Harris was not evading service, but that service was just faulty because it was being mailed and delivered to the house next door.
o “tried diligently” is not good enough à Rule 4 is only satisfied when notice is successful
o Courts will strictly adhere to the Rule 4 because we want uniform application of the Rules
· In this case, the district court made up its own test…. You can’t do that. What the Supreme Court says, goes..
· Wyman v. Newhouse
o If you want to sue someone in a state, you also have to serve them notice in that state as well. If not, then that court will not have personal jurisdiction.
o You can trick someone in their own jurisdiction into receiving notice if you’re going to sue them in their state.
o You cannot lure someone into another jurisdiction to serve them