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Civil Procedure Checklist

I. NOTICE

 FRCP 4(e) – Serving an Individual Within a Judicial District of the United States.
 FRCP 4(f) – procedures for serving individuals in foreign countries
 FRCP 4(j) – Service upon foreign governments
 FRCP 4(h)(2) – foreign corpations treated as foreign individuals
 FRCP 4(f)(1) – International Treaty governing international service of process
 FRCP 60 (b) (4) – Grounds from relief of final judgment

 Matthews test: Due process is determined by weighing:


(1) The private interest that will be affected by the official action
(2) The government’s asserted interest (public interest)
(3) Risk of erroneous deprivation (risk to erroneously taking away private interest vs. the
burden of providing more process)

 Notice

 Hamdi v. Rumsfeld
• Summary - A US born enemy combatant was held without counsel or
notice about any charges against him
• Rule / Holding – “A citizen detainee seeking to challenge his
classification as an enemy combatant must receive notice of the factual
basis for his classification, and a fair opportunity to rebut the
Government’s factual assertions before a neutral decision maker.”
• Policy Argument - When is it okay to deprive a citizen of his due
process rights?
 See Matthews Test
 Test can be used by the judge to render the decision he wants
because the factors are too subjective

 18 U.S.C. §4001(a)
• No citizen shall be imprisoned or otherwise detained by the United
States except pursuant to an Act of Congress
• Passed in response to the illegal detention of nearly 140,000
Americans of Japanese ancestry during World War II

 Mathews v. Eldridge
• Holding – No evidentiary hearing was necessary before the government
terminated Social Security disability payments
• TEST – The process due in any given instance is determined by
weighing the “private interest that will be affected by the official
action” against the Government’s asserted interest, “including the
function involved” and the burdens the Government would face in
providing greater process. The Matthew’s calculus then
contemplates a judicious balancing of these concerns, through an
analysis of “the risk of an erroneous deprivation” of private interest
if the process were reduced and the “probable value, if any, of
additional or substitute safeguards.”
• Policy Arguments
 Justice Scalia argues that the Matthew’s Test invites the Court
to prescribe what procedural protections it thinks appropriate and
adopt a “Mr. Fix-it Mentality” well beyond the competence and
authority of the judicial branch.
 Matthew’s test offers a realistic appraisal of the significance of
procedural costs to procedural rights

 Greene v. Lindsey
• Facts – Sherriff’s posted notice door frequently removed by children
• Holding/Rule – notice should be reasonably calculated under all
circumstances, to apprise interested parties of the pendency of the action
and to afford them an opportunity to present their objections.
• Policy Argument – Justice O’Connor dissented stating that there is an
absence of evidence regarding the speed and reliability of mail.

 Mullane v. Central Hanover Bank & Trust Company


• Facts – Trustee gave notice of a petition by publishing it in a local
newspaper
• Holding
 Statutory notice by publication was adequate only for those
whose whereabouts were unknown or whose rights were
conjectural when the action began.
 Those whose wheraabouts were reasonably ascertainable, were
entitled to notice by mail

 Jones v. Flowers
• Facts – notice given by certified mail for delinquent property taxes and
the tax sale was then published in a local Gazette.
• Holding – While actual notice is not necessary, when the government
learns that its chosen method of notice has failed, Mullane requires that
the government take additional steps.
• Policy Argument – The court observed that the commissioner could
have resenr a letter by regular mail or posted a notice at the house

 Rio Properties, Inc. v. Rio Int’l Interlink


• Defendant operated a website where the only means of communication
was email
• First federal appellate case to hold that a foreign defendant could be
served via email

 Snyder v. Alternative Energy


• Facts – Defendant’s physical whereabouts were unknown but were in
frequent contact with defendant’s over email and instant messaging
• Rule 5 (b) (2)(E)
• Holding –.The court allowed email service, but required paper copies to
be mailed to their last known address and to contact them at their last
known phone number
• Policy Argument – “the broad constitutional principle underlying
judicially devised alternative service unshackles the courts from
anachronistic methods of service and permits them entry into the
technological renaissance

 National Development Co. v. Triad Holdings Corp. & Adnan


Khashoggi
• Facts – Service made to defendant who had several properties worldwide
and claimed his home in Saudi Arabia as his primary home
• Holding – A person can have two or more dwelling houses or usual
place of abode, provided each contains sufficient indicia of permanance

 Capitol Life Ins. Co. v. Rosen


• Service at defendant’s brother’s house sufficient where defendant
frequently journeyed but kept a room and personal belongings at
brother’s house and paid rent therefor

 Blackhawk Heating & Plumbing Co v. Turner


• Service at house in Arizona deemed proper where evidence suggested
that defendant was living at the time in California but received actual
notice

 Shore v. Cornell-Dubilier Elec. Corp


• EXAMPLE OF NOT GOOD SERVICE
• Improper service was made to a house the defendant owned in
Massachusetts that was used by him only when conducting business
there.

 Prewitt Enterprises v. OPEC


• Facts - Defendant was served via registered mail with return service in
Austria.
• Holding – service upon international organizations is governed by Rule
4(h)

 Mid-Continent Wood Products v. Harris


• Facts – Mid-Continent was unable to locate Harris for six years because
they had the wrong address
• Holding – District court’s three part test does not comply with Rule 4
even thought Harris had actual knowledge, Mid-Continent made diligent
efforts to obtain technically proper service, and Harris’ conduct in
evading service
• Policy Argument –diligent efforts is not enough

 United States v. Mollenhauer Laboratories, Inc.


• Liberal construction of the rules of service of process cannot be utilized
as a substitute for the plain legal requirements as to the manner in which
service of process may be had

 Bennett v. Circus U.S.A.


• A defendant’s knowledge of a lawsuit will not serve to sute deficiencies
in service

 Wyman v. Newhouse
• Facts – Plaintiff was lured to Florida through fraudulent means for the
sole purpose of service of process
• Holding
 A judgment procured fraudulently lacks jurisdiction and is null
and void
 A judgment recovered in a sister state, through the fraud of the
party procuring the appearance of another, is not binding on the
latter when an attempt is made to enforce such judgment in
another state

 Ticke v. Barton
• Service was fraudulently effected when the plaintiff lured the defendant
to town by calls about a football banquet honoring his son

 Sawyer v. LaFalamme
• An elusive defendant was not only served, but physically held to answer
the complaint after being invited and entreated to come to Vermont to
settle the case.

 Lamb v. Schmitt
• An attorney who came into the state to set aside a fraudulent conveyance
was served in a action to recover funds paid as fees in the main suit.
• Many courts have refused to apply the common law immunity-from-
process rule to litigants (who have other incentives for appearing) ot to
witnesses who appear voluntarily rather than under subpeona.
• Holding – Immunity is for the benefit of the trial court’s processes and is
not a right of the person against whom service is sought

 Prejudgment Remedy

 Sniadach v. Family Finance Corp


• Facts - Optometrist’s collection agency had a court garnish Sniadach’s
wages without giving her a chance to contest
• Holding – A prejudgment garnishment may as a practical matter drive a
wage-earning family to the wall
• Policy Argument – Other prejudgement seizure of property were opened
to attack due to the holding of Sniadach

 Mulane v. Central Hanover Trust


• HOLDING – The right to be heard has little reality or worth unless one
is informed that the matter is pending, and can choose for himself
whether to appear or default
• Mail provides an efficient and inexpensive means of communication

 Fuentes v. Shevin
• Facts – Sheriff carted off plaintiff’s stove and stereo because she fell
behind on payments
• Holding – Prejudgment replevin without notice and opportunity to be
heard violates due process
• Policy Argument -

 Mitchell v. W.T. Grant


• Facts – Pretrial repossession of plaintiff’s property was allowed
• Holding – Property seizure was okay because there was posting of a
bond and a quick post-seizure hearing
• Policy Argument – Repossession okay since there was more procedure
in that a judge issued the writ instead of a clerk

 North Georgia Finishing, Inc. v. Di-Chemm, Inc.


• Facts – Bank account was impounded by a writ of garnishment issued by
a court clerk without notice or opportunity for an early hearing and
without participation by a judicial officer
• Holding – Georgia’s prejudgement attachment statute was
unconstitutional

• Connecticut v. Doehr
• Facts – Lien was placed on Doehr’s house in connection with a tort
action
• Holding – Connecticut’s statute violated due process
• Policy Argument – Prior cases only dealt with physical seizure of
property. Now extended to real property.

 Shaumyan v. O’Neill
• Facts – Same statute used in Doehr was used by contractors when the
homeowners refused to pay for painting and repairs
• Holding - The court granted the contractors ex parte prejudgment
attachment of the home without either a prior hearing or a posting of a
bond
• Policy Argument – ex parte prejudgment attachment does not deprive
the owner of any possessory rights in his property. At most it impairs the
market value of the property during the brief interval between the ex
parte attachment and the hearing.

 State Action
 Flagg Bros., Inc. v. Brooks
• Holding – There was no state action in the sale of a debtor’s goods by a
warehouse that had the goods in its possession and that had a lien on the
goods for unpaid storage charges
• Policy Argument – In general, you may assume that when the
challenged actions are those of the “state” itself, then they satisfy state
action and thereby may implicate constitutional rights

 Hearing
 Lassiter
 Walter
II. Personal Jurisdiction
 Pennoyer
 In personam
• Burnham
 In rem
 Schaffer
 got rid of quasi in rem
 International Shoe
 Minimum contacts analysis
 Substantial, continous and systematic  general jdx
• WWVW
 Continuous and systematic  specific jdx
 Isolated and irrrecular  specific jdx
• One contact
 McGee
 BurgerKing
 Zippo
 No contacts  no jdx
 Longarm statute
• International Shoe
• Greyhound
 Constitutional analysis
• Keaton  fairness
• Jones  fairness
• Asahi – reasonableness
 Hanson v. Denkla
 Waiving rights
 Carnival Cruiselines
 Szukhent
III. Subject Matter Jurisdiction
 Complete Diversity
 Strawbridge v. Curtis
 Mass v. Perry
 Belleville v Cetnering
 Tanzimore
 > $75,000
 Federal Question
 28. U.S.C. §1331
 Franchise tax Board
• Necessary
• Substantial
 Mottley – well pleaded complaint
 Merrill Dow
• FDCA
• Express Private Right of Action
 By Statute
• Implied Private Right of Action
 Cort Factors
 Grable Factors
IV. Pleading
 Rule 8 – “Short and Plain”
 Conley
• Any set of facts
 Twombly
• Plausibility
 Iqbal
• Ignore “conclusory” statements
• Assume remaining allegations as true