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9 Cards in this Set
- Front
- Back
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Procedural Due Process
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guarantees parties the basic right to notice of a court’s intention to adjudicate a dispute between the parties (or over property before it) and an opportunity to be heard before the court begins adjudication (improper notice violates 14th Amend)
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Service of Process
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service of the initial notice to D of the filing of a lawsuit against him
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General Requirements
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1. Notice must be reasonably calculated to reach D (actual notice is not required)
2. If you can locate D and know his address then personal service required (typically the standard for in personam) 3. If after due diligence (good faith/best efforts) you can’t locate D then service by publication okay 4. Requires delivery of both a summons (command to appear in court) and a copy of the complaint 5. Can be made by anyone 18+ that isn’t a party to the dispute 6. Service on D must be made within 120 days after the filing of the complaint (4m) 7. Service of process may be made only within the boundaries of the state in which the District Court sits or anywhere else that the long-arm statute of that state permits |
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Service on Individuals (Competent individuals)
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1. Personal service- Hand deliver summons & complaint to D personally
If D tries to evade service, papers can be left near them as long as D knows what they are 2. Dwelling- Summons/complaint can be left at D’s dwelling house or usual place of abode with some person of suitable age/discretion then residing there Court’s have quashed service to parents’ homes and to hotels and other temporary places 3. Waiver of service by D- No in-person service needed if D agrees P may mail (certified or 1st class) two copies of summons & compliant and request a returned waiver of service process by D: P has a duty to minimize costs If D doesn’t return waiver within “reasonable” time (~30 days) then D is liable for all service costs Return of waiver has the same effect as actual service of process A D who grants waiver can still make a motion for dismissal based on personal jurisdiction or venue 4. Appointed Agent- Service can be made on someone appointed as an agent for acceptance Parties can agree in a form lease contract to appoint agent in another state 5. Compliance w/ state law- Even if service is not done in accordance with above provisions, service of process is sufficient if it complies with the law of the state in which the district ct is sitting or the state in which the service is effected |
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Service on Infants and Incompetents
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Not okay unless permitted by law of state in which district ct sits
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Corporations & Unincorporated Assoc.
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Made by obtaining a waiver of service; by service in accordance with state law; or by delivery of a summons/complaint to an officer, managing or general agent, or to any other agent authorized by appt. or by law to receive service of process
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Service on Governmental Ds
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Delivering or mailing to U.S. Attorney for district in which action is brought (or assistant/clerk) – Sending copy to U.S. Attorney General
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In rem and quasi in rem proceedings
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Actions relating to title:
Require personal service on absent D if practical—wherever found—and also on person(s) in possession of the property, if any If not practical then notice by publication sufficient (not less than 1/wk for 6 consecutive weeks) 3 Step Process (if all s can’t be located): 1. Must exercise due diligence to determine all persons who might have an interest in the property 2. If after DD you determine names/addresses of parties; reasonably calculated notice (serve personally if practical—taking into account costs considerations) 3. If you can’t determine names/addresses of parties after DD; notice by publication is sufficient |
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Notice to Absent Class-Action P
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1. Rule: Forum state may exercise jurisdiction over the claim of an absent class action P—even though P may not possess minimum contacts with the forum state that would support in personam jurisdiction
2. Notice Requirements: a. P must receive notice an opportunity to participate b. Notice must be reasonably calculated to reach absent class-action Ps c. Notice should describe the action and P’s rights d. Absent P has option to remove himself (opt-out) e. Name P in the class-action must adequately represent absent |
