Aspen Study Civil Procedure Flashcards
Which of the following procedural matters is or are concerned primarily with a defendant’s due process rights?
A. Personal Jurisdiction
B. Subject Matter Jurisdiction
C. Notice
D. Both A and C
D
The correct answer is D; both personal jurisdiction and notice are primarily concerned with a defendant’s due process rights. Personal jurisdiction deals with the ability of a court to render a judgment that will be binding on the parties. A court without personal jurisdiction lacks such authority and any attempted judgment would violate the defendant’s due process rights. It is also necessary that a defendant receive proper notice of a lawsuit in order to present a defense to the action. Therefore, due process requires, at a minimum, notice and an opportunity to be heard. Answer B is incorrect because subject matter jurisdiction has to do with the limits of the authority granted to a given court to hear certain types of disputes as opposed to the rights of the litigants. This authority is generally outlined in federal or state constitutions and then conferred on courts by the legislature.
Patricia, a New York citizen, was injured while on a guided tour during her vacation in Hawaii when a car lost control and collided with her Segway. Once home in New York, she filed a lawsuit in New York State court against the driver of the car (a citizen of Hawaii) alleging that the driver was negligent in his operation of the vehicle. Patricia hired a local process server to serve the summons and complaint on the driver at his home in Hawaii. If you represented the driver, which of the following motions to dismiss would most likely be successful?
A. Lack of personal jurisdiction
B. Lack of subject matter jurisdiction
C. Improper notice
D. All of the above
A
The correct answer is A. A court sitting in New York is unlikely to have personal jurisdiction over a citizen of Hawaii in a lawsuit involving a car accident that occurred in Hawaii. The driver was given actual notice of the lawsuit by being personally served with process in Hawaii, and the question contains no connections the driver has with New York. A motion to dismiss for lack of personal jurisdiction is likely to be successful. Because state courts are courts of general subject matter jurisdiction, the state court would certainly have the authority to hear a type of lawsuit involving a negligence claim, so answer B is incorrect. The defendant was personally served with process at his home, and this type of actual notice would meet constitutional requirements. Therefore, answer C is also incorrect. Since B and C are incorrect, answer D must also be incorrect.
While Peter was driving with his friend Tom to soccer practice, they were involved in a car accident with Denise. Tom filed a lawsuit against Denise, alleging that she was negligent in causing the car accident. In that lawsuit, the jury returned a verdict in favor of Denise finding that she was not negligent. Peter filed a separate lawsuit against Denise, but Denise argued that Peter’s complaint should be dismissed because she was already found not to be negligent in the Tom v. Denise lawsuit. Should the court dismiss Peter’s complaint?
A. Yes. It would violate Denise’s due process rights to subject her to another lawsuit.
B. No. Due process requires that Peter have an opportunity to be heard.
C. Maybe. It depends on how inefficient and costly it would be to re-litigate whether Denise was negligent.
D. Maybe. It depends on whether Peter’s injuries were similar to those suffered by Tom.
B
Answer B is correct. Peter was not a party to the Tom v. Denise lawsuit and therefore cannot be bound by the judgment rendered in that lawsuit. Peter has his own constitutional due process rights and is entitled an opportunity to be heard on his claim against Denise. This is true even though it may appear to create inefficiencies in the sense of litigating whether Denise was negligent, so answer C is incorrect. While the federal rules (and most state rules) of civil procedure are drafted to encourage litigants like Peter and Tom to sue together, they are not required to do so, thus answer A is incorrect. Due process does not protect against subsequent civil suits. Answer D is incorrect because Peter and Tom have independent interests in their respective claims. Whether their injuries were similar is irrelevant.
Short Answer
In the first year of law school students learn about both substantive law (Contracts, Property, and Torts) as well as procedural law, as in Civil Procedure. What is the difference between procedural law and substantive law?
Short Answer
Pamela filed a lawsuit against David alleging that David was texting while driving and therefore negligently caused a car accident in which the two were involved. During discovery, a videotape from a traffic camera was supplied by the police department that showed that in fact, David’s traffic light was green, Pamela’s traffic light was red, and further, that Pamela appeared to be looking at her phone at the time of the accident. If you represented David, what type of motion could you file to dispose of this lawsuit?
Unnoticed notice. In Mullane v. Central Hanover Bank & Trust Co., the Supreme Court held that
A. every person whose interests may be affected by a judicial proceeding is entitled to at least mail notice of the proceeding.
B. every person whose name and address could be ascertained through reasonable investigation must be given individual notice of the proceeding.
C. any person whose interests might be affected by the proceeding must be given notice by in-hand service of process.
D. due to the large number of persons whose interests might be affected by the proceedings, notice by publication was sufficient on the facts of the case.
E. None of the above is true.
E
A takes the position that everyone who might be affected by the settlement of the accounts must receive individual notice. If that were true, it would be impossible to settle the accounts of the trust. Even some beneficiaries with a current right to income may be impossible to find; if due process required individual notice to them it couldn’t be done. Other people have contingent interests: They might get income in the future, for example, as the heir of a current beneficiary. The bank may not know who these contingent beneficiaries are, though it might be able, with research, to find some of them. Justice Jackson viewed due process as a flexible concept that involves a balance of the importance of the right involved, the risk of an erroneous decision, the cost of providing individual notice, and the likelihood that the absentee’s interest would be protected by other parties. He rejected the view that everyone with some interest in the action must be individually notified for it to proceed.
B would impose a lesser burden: to notify the persons whose interests could be ascertained with reasonable investigation. This could be done, but it would be costly, involving legal review of 113 trusts and factual research on the whereabouts of all identified beneficiaries. This would more effectively reach affected persons, but the cost of doing so would likely impose such a severe burden on the plan as to “dissipate its advantages.” 339 U.S. at 318. Under the circumstances—including the presence of the guardian appointed to represent the interests of beneficiaries and the actual notice to many of them—the Court held that due process did not require that. Consequently, a beneficiary might never learn of the proceeding, have her right to object to the accounts foreclosed by it, and have no constitutional complaint.
C is also a loser. Mullane held that notice by mail is sufficiently likely to actually inform a person of the proceeding to be constitutionally sufficient under most circumstances. In fact, Mullane did not hold that anyone had to be notified of the suit by personal service of process—that is, by in-hand delivery of the papers. And D fails as well. The Court required at least mail notice of the action to those beneficiaries whose names and addresses were known to the bank, since they could easily and inexpensively be informed of the action. So E is right. None of the prior statements is quite true.
Mailing it in. LeCompte brings suit against Wilkins for battery in state court. His counsel looks up the state’s Civil Procedure Rule for service of process and finds that the rule authorizes service of process by first class mail. He serves the complaint and summons on Wilkins by mailing them, first class, to Wilkins at his home address. If Wilkins raises the objection that service of process was improper, the court will likely
A. reject the argument, because LeCompte used a form of service that was authorized by the state’s service of process rules.
B. uphold his objection, because service by first class mail is not constitutionally proper.
C. uphold his objection if LeCompte could have arranged for in-hand service on Wilkins.
D. reject the argument, because service of process by first class mail is constitutionally sufficient.
D
A is a great wrong answer, and it is important to recognize why it is wrong. As a lawyer, it is always comforting to argue that you followed the rules, and LeCompte has followed the rule here, which authorized service by mail. But states can’t write any rules they want: Their rules for service of process must meet constitutional standards. After all, the bank followed the state service statute in Mullane, but the Supreme Court held that, as to some beneficiaries, its method of service was inadequate. So it is never a complete answer that the rule authorizes the method used.
B reflects the position that service of process by first class mail is constitutionally insufficient under Mullane. In almost all cases, however, service by first class mail will be upheld under Mullane, which described the mails as “an efficient and inexpensive means of communication.” 339 U.S. at 319. Indeed, Mullane required notice by mail to persons with interests in the trusts whose addresses were within the bank’s files. Mail service will almost certainly be upheld. And, if it is constitutionally sufficient, and authorized (as it is here) by the state service rule, it will be upheld, even if LeCompte could have done something even better, such as in-hand service. So C also fails. Choose D.
Dim prospects for partnership. In which of the following service of process situations is the boss likely to roll her eyes and say, “What did we hire this kid for?”
A. Neophyte drafts a complaint against Gates for breach of a contract to design software for the plaintiff. She serves the complaint by delivering it herself to Gates at his office.
B. Neophyte drafts a complaint against Gates for breach of a contract to design software for the plaintiff. She prints out a form summons from the office files containing the information called for in Rule 4(a)(1)(A) to (E) and serves both documents on Gates by a method authorized by Rule 4(e).
C. Neophyte drafts a complaint against Jobs and Gates for breach of a contract to design software for the plaintiff. She files the complaint, has the clerk sign and seal the summons, and serves the documents on Gates by a method authorized by Rule 4(e).
D. Neophyte drafts a complaint against Gates for breach of a contract to design software for the plaintiff. She delivers two copies of the complaint and two summonses to be signed and sealed by the clerk and then served by the clerk on Gates.
E. All of these methods are insufficient.
E
E is right, because none of these efforts complies with the requirements of Rule 4(a)-(c). In A, Neophyte served the complaint herself, which is authorized by Rule 4(c)(2) (any person 18 or over who isn’t a party). But she did not serve a summons with the complaint, as required by Rule 4(c)(1). In B, she drafted a proper summons, but did not have it signed and sealed by the clerk, as required by Rule 4(a)(1)(F) and (G). The summons is a document issued by the court, the official document by which the court formally commands the defendant to appear and defend the suit. It’s not “official” without the signature and seal of the court.
In C, Neophyte followed Rule 4 to the letter in serving Gates, but didn’t serve Jobs at all. Surely, Jobs has just as much right to notice of the action as Gates. Mullane certainly stands for that proposition, doesn’t it? Rule 4 does not flatly say that a summons and complaint must be served on each defendant, but Rule 4(b) does say that a summons must be issued “for each defendant to be served.” Thus, service is inadequate in C for failure to serve process on the second defendant.
D is also improper, because it is not the clerk’s job to serve the papers on the defendant. This is the plaintiff’s job under Rule 4(c)(1), which states that “the plaintiff is responsible for having the summons and complaint served.” While, technically, service represents the command of the court to appear and defend, the plaintiff’s lawyer carries the laboring oar in making sure that the defendant gets the proper papers.
Is the “notice and opportunity to be heard” requirement for valid jurisdiction a constitutional issue?
Yes; notice and opportunity to be heard concerns a defendant’s constitutional right to due process.
To be constitutionally adequate, what must notice contain?
It must give the person reasonably adequate information of her rights, e.g., the right to dispute a bill.
There’s one supremely important case on the issue of constitutionally valid notice. What is it?
Mullane v. Central Hanover Bank, 339 U.S. 306 (1950).
It established the principle that to satisfy constitutional due process considerations, notice must be “reasonably calculated, under the circumstances, to give the person actual notice.”
MENTAL PICTURE: Imagine a giant, flat calculator, shocking pink, nailed to a tree. The letters “MULLANE” appear on the keyboard instead of the usual numbers and symbols. Imagine people stop and stare, studying the calculator. Calculator = calculated; people noticing = notice.
Under what circumstances will “notice by publication” be sufficient to satisfy constitutional due process requirements?
In general, it’s not. Notice by publication, e.g., in a newspaper, is presumptively invalid. The only time it may be permissible is if a person cannot be found after “reasonable diligence” is employed to find her. Then publication becomes the only reasonable means for notice and, as a result, permissible. Before notice by publication is constitutionally sufficient, however, it must be shown that the defendant’s name and address are not known.
What is “constructive service”/“constructive notice”?
Constructive service is a collection of methods of notifying defendants other than through personal service. Examples of this are found in FRCP 4(e). Constructive service provides the defendant with constructive notice.
Cinderella files a tort claim in state court against Wicked Stepmother for intentional infliction of emotional distress. What would be the surest possible means of serving process on Wicked Stepmother so as to satisfy constitutional due process requirements?
Personal delivery of process. Although substituted process, e.g., to the person’s dwelling or by mail, or other means are acceptable, depending on the state, personal delivery always satisfies constitutional notice requirements.
FEDERAL COURT: Under FRCP 4(d), service of process is more lenient—it may be made by first class mail if accompanied by a “request for waiver of service,” a notice of the litigation, and a copy of the complaint. If the defendant agrees to waive service of the summons, service is complete. If the defendant doesn’t return the waiver, other means of service must be used. However, the defendant will be charged the costs of personal service unless she can show good reason why she shouldn’t be fined.
Batman, a resident of New York, is driving through Arkansas in his Batmobile when he runs into a car driven by Alfred Pennyworth, an Arkansas resident. Pennyworth files a tort claim against Batman in Arkansas state court. The non-resident motorist statute calls for registered mail service of papers to the out-of-state defendant and service on the Arkansas State Director of Motor Vehicles. Will this be constitutionally sufficient?
Yes. This is the type of notice most non-resident motorist statutes require. It’s constitutional since it meets the Mullane standard—it’s “reasonably calculated, under the circumstances, to give the defendant actual notice.”
