Mkm Notice

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Constitutional Requirements

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Due process requires that reasonable efforts to provide notice be made with regard to persons whose interests are to be determined.

Notice must inform defendant of the nature and place of the proceeding

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Constitutional Requirements- Method

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Service of notice is usually by personal delivery, first class mail, or publication (when the person cannot be located). If service by these methods is impossible, the court may authorize service via email.

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Service of Process

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The usual method of giving notice os service of a summons and complaint on the defendant, directing that he file and answer or suffer a default

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Methods of service

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Depending on the rules of the jurisdiction, service of process may be made by personal delivery, by mail (waiver of service), or by leaving it at the defendant's home or office.

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Immunity from service

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In some jurisdictions, rules immunize from service those person who are present in the state only to participate in a legal proceeding

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Timing of Notice- Prejudgment seizures

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At common law, defendant's property could be seized, even before defendant had notice of the action, to provide security for any judgment plaintiff might obtain

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Timing of Notice- Prejudgment seizures- State law requirements

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States have placed various limits in prejudgment seizures

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Timing of Notice- Prejudgment seizures- Procedural due process requirements for prejudgment seizure

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Supreme court decisions on prejudgment seizures without notice or advance hearing where the claimant's interest in the property does not antedate the suit seem to require proof of exigent circumstances and a factual setting where claims can reliably be evaluated on documentary proof.

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Constitutional Requirement

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Due process requires that reasonable efforts to provide notice be made with regard to persons whose interests are to be determined.

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Method

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The method of giving notice must have a reasonable prospect of giving actualnotice: “The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”

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Personal Delivery

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Personal delivery of the notice (ordinarily the summons and complaint) is the traditional method of giving notice.

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First class mail

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In Mullane, supra, the Court required mailed notice to those whose addresses were known, reasoning that “the mails today are recognized as an efficient and inexpensive means of communication.”

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Class actions

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In class actions brought under Federal Rule 23(b)(3) (common question suits), there must be mailed notice to all class members who can be identified with reasonable effort

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Posted notice

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Notice by posting on the defendant’s residence may not be sufficient

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Service via e-mail

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Under Federal Rule 4(f)(3), a court may authorize service via e-mail when service by more conventional means has been shown to be impossible.

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Effort to identify

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Reasonable efforts to identify and locate affected persons are required. As to named defendants, the identification issue should not be a problem, but in other instances, such as in rem actions, it can prove more difficult.

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class actions

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In class actions, the Court has accepted failure to identify significant numbers of class members.

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Contents

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The notice must intelligibly advise the defendant of the nature and place of the proceeding.

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Constructive notice

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In some instances where a person cannot be located after reasonable efforts, published or other constructive notice will suffice

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Effect of failure to receive

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If a constitutionally valid procedure is used, the judgment is binding even if some interested parties do not actually receive notice. Due process requires reasonable efforts to provide notice, but Supreme Court cases “have never re-
quired actual notice.”

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Duty to make further efforts if notice not received

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When the state learns that its initial efforts at giving notice failed even though they were reasonable, it must take reasonable additional steps to provide notice.

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Service of Process

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The usual method for giving notice is service of a summons and complaint on the defendant directing that the defendant file an answer to the complaint or suffer a default.

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Methods of service- Personal Delivery

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Process may be served on the person. In the case of a corporation, partnership, or unincorporated association, service may be made on an officer or managing agent, or on an agent authorized by law.

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Federal Rules

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1. At defendant’s home [§245]
A copy of the summons and complaint can be left at the
“usual place of abode” of the person to be served with a “person of suitable age and discretion” residing therein.
2. In accordance with state law [§246]
Service also may be made pursuant to the law of the state in
which the district court is located, or pursuant to the law of
the state in which service is effected.

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Waiver of Service

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A plaintiff may ask a defendant to waive formal service. This
is done by sending a request for waiver of service to the defendant by first class mail. Because a defendant has a duty to avoid unnecessary costs of service, a defendant located within the United States who fails to waive service without good cause can be liable for the costs of formal service. A defendant who waives service receives additional time to answer the complaint compared to one who is served in the usual manner.

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On defendant in foreign country

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A defendant served in another country may be served by an
internationally agreed means or, if there is not an agreed
means, as directed by the law of the place of service, includ-
ing, unless forbidden by the law of that country, personal de-
livery or any form of mail requiring a signed receipt, or as
directed by the court.

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Service in diversity cases

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In diversity cases, the service procedures of Federal Rule 4 are to be applied

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Immunity from service

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In some jurisdictions, there are rules that forbid service of process on a person who is in the state only to participate in a legal proceeding.

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Pre-judgment seizures

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At common law, a plaintiff could have a defendant’s property seized as a method of coercing the defendant to appear for trial. Over time, this seizure—variously called replevin, attachment, garnishment, sequestration—came to be used to provide security for any judgment the plaintiff might
obtain in the action. Very often, such prejudgment remedies were available before defendant was given notice of the action.

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Federal courts

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Federal courts must apply state law concerning the availability of pre-judgment remedies, unless a federal statute provides a prejudgment remedy

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Exigent circumstances

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The Court’s opinion suggests that proof of exigent circumstances may be constitutionally necessary to permit seizure without notice.