Notice, Service, Right to be Heard and Pleading

Question 1

what is the constitutional standard for Rule 4?

Answer 1

due process does not always require actual notice, under modern practices “constructive notice” can still be sufficient in certain situations.

Question 2

what did Dioguardi bring to the table (pleading)?

Answer 2

burden of pleading determines who is required to introduce the issue into litigation (typically, not always) the one who has the burden of proof of issue at trial)

Question 3

Rule 4

Answer 3

summons

Question 4

what does Iqbal hold? (pleading)

Answer 4

that Twombly applies to all cases (trans substantive)

Question 5

what does the court say in Iqbal?

Answer 5

1) disregard conclusory statements

2) do non conclusory statements plausibly suggest an entitlement to relief?

Question 6

what did Swiekiewicz bring to the table (pleading)?

Answer 6

complaint should give D “fair notice of the basis” for their claim

Question 7

what is the two step inquiry for the constitutional approach of rule 4?

Answer 7

1) whether D is subject to PJ in any of 50 states

2) whether D’s contacts with nation satisfy Due process

Question 8

what is the 3 part test from Goldberg (right to be heard)?

Answer 8

1) private interest that is affected by action
2) risk of an erroneous deprivation and the probable value of risk of wrongfully depriving someone
3) weighing of gov’t interest including the fiscal implications of additional service

Question 9

what does the court say in Erickson (a month after Twombly)?

Answer 9

1) specific facts are not necessary

2) the statement need only give D fair notice of what the claim and the ground of which it rests are

Question 10

what did Dusenberry bring to the table (notice)?

Answer 10

due process doesn’t require heroic efforts, you don’t have to give a better notice just b/c it is unavailable

Question 11

what did Mullane bring to the table (notice)

Answer 11

1) no PJ over out of state beneficiaries

2) accuracy of notice

Question 12

if the burden of proof of issue is on the defendant, what must the complaint allege? (Dioguardi) (pleading)

Answer 12

must raise the issue as an affirmative defense (otherwise, barred from proving the defense at trial)

Question 13

what did Greene bring to the table (notice)?

Answer 13

need constructive notice under the 14th Amendment

Question 14

what did Mitchell bring to the table (right to be heard)?

Answer 14

sequestration statute is constitutional (the risk of wrongful deprivation was minimized by vendor’s interest in preventing waste of the property)

Question 15

if the burden of proof on issue is on the Plaintiff, what must the complaint allege? (Diogruardi) (pleading)

Answer 15

the issue (otherwise complaint is vulnerable to dismissal for failure to state claim)

Question 16

what does Twombly overturn?

Answer 16

Conley’s “no set of facts” rule. Pleadings need to be “plausible,” not just “conceivable.”

Question 17

what did Jones bring to the table (notice)?

Answer 17

1) if there was a desire to give notice, and proof that notice wasn’t received, more would be done.
2) MUST take reasonable steps to notify D but no heroic efforts are needed

Question 18

what is the Conley’s factual impossibility standard from Conley (pleading)?

Answer 18

a complaint should not be dismissed UNLESS “it appears beyond the doubt that plaintiff can prove no set of facts in support of his claim which would entitle him relief”

Question 19

when is preheating of deprivations of property (right to be heard) allowed and what does it depend on?

Answer 19

1) P MUST give an affidavit of claim
2) affidavit must allege specific facts showing that P is entitled to the company
3) there must be nan order from the JUDGE
4) P usually must post a bond to cover the D’s cost if D wins
5) at some point D gets a hearing on the merits
6) D may get property back pending litigation if he posts bond

Question 20

what did Goldberg bring to the table (right to be heard)?

Answer 20

where the stakes are so high (people’s existence) there needs to be some process before deprivation

Question 21

what did Fuentes bring to the table? (right to be heard)

Answer 21

Replevin provision is unconstitutional (a temporary, non-final deprivation of property is nonetheless a deprivation in terms of the 14th amendment)

Question 22

what did Twombly bring to the table? (pleading)

Answer 22

requires only a short and plain statement of claim showing that the pleader is entitled to relief in order to give D fair notice of what the claim is and the ground upon which it rests (rule 8)