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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 any. 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) • • • • • • • • • • • • .if the process were reduced and the “probable value. Mullane requires that the government take additional steps. of additional or substitute safeguards. v. Matthew’s test offers a realistic appraisal of the significance of procedural costs to procedural rights Greene v.” • 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. 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. Policy Argument – Justice O’Connor dissented stating that there is an absence of evidence regarding the speed and reliability of mail. to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections. Those whose wheraabouts were reasonably ascertainable. Lindsey Facts – Sherriff’s posted notice door frequently removed by children Holding/Rule – notice should be reasonably calculated under all circumstances. Inc. were entitled to notice by mail Jones v. 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. 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. 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.
Cornell-Dubilier Elec. provided each contains sufficient indicia of permanance • Capitol Life Ins. 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. Triad Holdings Corp. 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. Co. Inc. 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.• • Holding –. and Harris’ conduct in evading service Policy Argument –diligent efforts is not enough United States v. Mid-Continent made diligent efforts to obtain technically proper service. Holding – service upon international organizations is governed by Rule 4(h) Mid-Continent Wood Products v. Mollenhauer Laboratories. & 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. v.The court allowed email service. OPEC Facts . 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. Prewitt Enterprises v.Defendant was served via registered mail with return service in Austria. • • • • • • • • . v.
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. LaFalamme An elusive defendant was not only served. Circus U. A defendant’s knowledge of a lawsuit will not serve to sute deficiencies in service Wyman v. Many courts have refused to apply the common law immunity-fromprocess rule to litigants (who have other incentives for appearing) ot to witnesses who appear voluntarily rather than under subpeona. 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. 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 .• 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.S. but physically held to answer the complaint after being invited and entreated to come to Vermont to settle the case. 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.A. Lamb 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. Central Hanover Trust . 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.
W. Di-Chemm. State Action • Flagg Bros. v. Shaumyan v. 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. and can choose for himself whether to appear or default Mail provides an efficient and inexpensive means of communication Fuentes v. At most it impairs the market value of the property during the brief interval between the ex parte attachment and the hearing. 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..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. 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.• • • • • • • • • • • • • • • • • HOLDING – The right to be heard has little reality or worth unless one is informed that the matter is pending. Inc. Now extended to real property. Inc. O’Neill Facts – Same statute used in Doehr was used by contractors when the homeowners refused to pay for painting and repairs Holding . 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. v.T. 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 . Inc.
you may assume that when the challenged actions are those of the “state” itself. Perry Belleville v Cetnering Tanzimore > $75.000 Federal Question 28. 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. U. Subject Matter Jurisdiction Complete Diversity Strawbridge v. Curtis Mass v. 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.C.• Policy Argument – In general.S. §1331 Franchise tax Board • Necessary . Denkla Waiving rights Carnival Cruiselines Szukhent III.
Pleading Rule 8 – “Short and Plain” Conley • Any set of facts Twombly • Plausibility Iqbal • Ignore “conclusory” statements • Assume remaining allegations as true .• • • • 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.
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