Dickerson - 1L CivPro

2 components of Due Process

1. notice

2. the opportunity to be heard

General questions for Due Process

1. Is life, liberty or property at stake?

   (note: wages and government benefits have been determined to be property)

2. Is the deprivation due to a state action?

If yes to both… apply the Matthews balancing test for overall process

Matthews Test balancing factors

• The private interest at stake

• The (a) risk of erroneous deprivation through the current or proposed rules compared to (b) the value of additional safeguards (Hand formula)

• The government’s interest, including function involved and fiscal and administrative burdens

Purpose of Matthews test

the amount of process that is appropriate must be weighed against the cost – all process has a cost

When is oral hearing not necessarily required for due process to be met?

when notice is given and an opportunity to be heard via written response and evidence submission

(Mattews – termination of Social Security disability benefits) (compare Goldberg v. Kelly – termination of means-tested welfare payments required hearing)

Service of Process

delivery of initial court documents

Besides giving notice, why else is Service of Process required?

(also, why is “actual knowledge” of the suit not enough?)

personal jurisdiction attaches only when the plaintiff is successful in serving the defendant (Mid-Continent Wood)

Rule 4 and case law do not allow for “actual knowledge” to be substituted in for proper service (Mid-Continent Wood – where service went to wrong house, but defendant knew about suit)

What is the Rule 4(m) time limit for service?

within 90 days from filing

What is the consequence is a plaintiff fails to serve a defendant in time?

court must

• dismiss the suit without prejudice

  - or -

• order service within a specified time frame 

(note: if plaintiff shows good cause, court must extend deadline)

(note: jurisdictions will vary as to whether the statute of limitations continues to run during service time, which becomes relevant if the case gets dismissed and must be refiled)

Under Rule 4(a)(1), what are the required contents for proper service of process?

1. name the court and the parties;

2. be directed to the defendant;

3. state the name and address of the plaintiff's attorney or—if unrepresented—of the plaintiff;

4. state the time within which the defendant must appear and defend;

5. notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

6. be signed by the clerk; and

7. bear the court's seal

What enclosures must be in regular service of process?

(i.e. when not seeking waiver)

a copy of the complaint and summons

Qualifications to Act as a Server of Process — Rule 4(c)(2)

• server must be at least 18 years of age (Benny v. Pipes = prison guards who were served by an inmate threw the summons in the trash and had a default judgment against them.)

• server cannot be a party to the action

What can a plaintiff do if they don’t have someone to serve the complaint? Rule 4(c)(3)

request the court order service by marshal or other person that is “specially appointed” by the court

Approved methods of personal service listed in Rule 4(e)(2)

• any method approved by state law to use in an action brought in the state where … 

  • the district court is located or 

  • where service is made

• delivering to the individual personally

• leaving a copy at the individual's dwelling or usual place of abode – must be left

  • with someone of suitable age and discretion 

  • who resides there

• delivering to an agent authorized by appointment or by law to receive service of process

“dwelling house or usual place of abode”

(in service of process)

if a defendant has multiple homes, any of those homes that have “sufficient indicia of permanence.”

What are the plaintiff’s responsibilities when requesting a waiver of service?

• must meet summons content requirements

• must meet enclosure requirements

• must be sent via first class mail or other reliable means

What must be enclosed in a request for waiver of service?

• 2 copies of waiver form (provided in Rules)

• prepaid means of returning the waiver

• form (provided in Rules) explaining the consequences of waiving and not waiving service

What means of service are generally considered “reliable means”?

• Mail at home or work address (of either defendant or agent) – Rule 5(b)(2)(c)

• Fax or E-mail to home or work number/address (of either defendant or agent)

• Court’s electronic filing system (Rule 5(b)(3))

What means of service are generally considered “unreliable”?

• Posting

• Publication

Example of “iffy” means of service that may be approved if traditional means don’t work?

Messaging on social media/through website

Factors for Electronic Service

• whether the defendant has an online presence

• whether the wrongdoing was done electronically/online 

• whether the electronic nature of the transaction makes it difficult for the defendant to be physically located

What are the defendant’s obligations when granting a waiver of service?

must sign the waiver form and return it to the plaintiff within a reasonable time 

What is a “reasonable time” for returning a waiver of service?

no less than 30 days (60 days if defendant is outside U.S.)

What is the consequence for defendant if he refuses to waive personal service without good cause?

• must pay the cost of personal service 

• must pay any reasonable fees (incl. atty fees) for a motion to collect costs of personal service

What are the incentives for plaintiff and defendant to seek/grant a waiver of service?

• plaintiff = does not have to file proof of service

• defendant = gets 60 days to respond (90 if out of U.S.)

4 Ways to Challenge Service of Process

1. method of service

2. insufficient contents in the notice

3. personal jurisdiction (whether the court has power over the defendant or defendant’s property)

4. impropriety or immunity from service

Immunity-from-Process Rule

a common law rule stating that witnesses in cases can’t be served when they are in the jurisdiction only as a subpoenaed witness and need incentive to appear

What is Federal Rule 4?

rules for the summons

Benefits of Adversarial System

• ensures both parties have the opportunity to present their case and counter-arguments

• helps to uphold the rule of law because accurate application of law requires specialized knowledge

• at least an appearance of impartiality with the adversarial system

How does an adversarial system strike economic balance with rule of law?

• effective enforcement of substantive law requires we not be too fastidious about costly adversary procedures

  BUT

• fair opportunity for adversary competition requires we not be excessively demanding about the absolute accuracy and consistent application of substantive principles.

How do rule of law and adversarial systems compare in focus?

• rule of law = society and the agreed upon rules we have

• adversarial system = individual’s procedural rights

2 Duties of an Attorney within an Adversarial System

• to the law

• to the client

Rule of Law

the impersonal application of generally accepted principles to disputes (i.e. all people are equal in the eyes of the law)

American Rule

each party in a suit pays its own fees 

Exceptions to the American Rule

• statutory exceptions (e.g. 42 U.S.C. § 1988 – civil rights cases)

• contracts often include a “loser pays all” clause

What limit is there on a losing party paying attorney fees?

fees must be reasonable

“Reasonableness” Factors — Atty Fees — ABA Model Rule 1.5(a)

• the time and labor required, considering

  • novelty and difficulty of the issues

  • skill requisite to perform legal service properly 

• likelihood (known by the client) that acceptance of the particular employment will preclude other employment by the lawyer

• fee customarily charged in the locality for similar work

• amount involved and the results obtained

• time limitations imposed by the client or circumstances

• nature and length of prof. relationship with the client

• experience, reputation, and ability of the lawyer(s)

• whether the fee is fixed or contingent

What are some reasons that courts seem to “protect” defendants at the beginning of a lawsuit?

• D has a right to be heard (requires notice)

• D’s are unwilling parties (allows convenience of court)

• D’ atty fees usually require a retainer (vs. plaintiff contingency)