Monday, December 05, 2005

Outline - Civil Procedure - I - Due Process

Civil Procedure (2005-2006)


  1. Consitution
    1. U.S. Constitution, Amendment V – “No person shall be … deprived of life, liberty, or property, without due process of law.”
    2. U.S. Constitution, Amendment XIV – “[N]or shall any State deprive any person of life, liberty, or property without due process of law.”
    3. California Constitution, Article I, Section 7 – “A person may not be deprived of life, liberty, or property without due process of law.”
  2. Mathews Test - Weigh:
    1. Private interest that will be affected by government action
    2. Risk of erroneous deprivation (including probable value if any of additional safeguards)
    3. Government interest that would be impaired by additional safeguards
  3. Notice
    1. Rule 3 - Action commences with filing of complaint.
    2. Rule 4 - Summons
      1. Service
        1. Summons with copy of complaint
        2. Disinterested party at least 18; at request of plaintiff, may direct service by US marshal
      2. Waiver of service
        1. Waiving service does not waive other objections
        2. Duty to avoid unnecessary costs; notice and request must be/include:
          1. Addressed directly to defendant, or an officer or agent of a corporation
          2. First-class mail
          3. Copy of complaint
          4. Consequences of compliance and failure to comply
          5. Date of request
          6. Allow 30/60 days to respond
          7. Extra copy for defendant
        3. Waiver extends response time to 60/90 days
      3. Defendants in the U.S.:
        1. Personally at individual’s “dwelling house or usual place of abode” with some person of suitable age and discretion living there, or
        2. By delivering copies of summons and complaint to authorized agent
    3. Mullane Test - 3 kinds of beneficiaries:
      1. Known beneficiaries – entitled to notice by mail
      2. Known beneficiaries that are hard to find – notice by publication sufficient
      3. Unknown beneficiaries (e.g., future generations)
    4. Cases
      1. Greene v. Lindsey - Posting alone not sufficient for actual notice; service by mail may complement.
      2. Khashoggi - Defendant who has multiple homes had notice when served at a home that has indicia of permanency.
      3. Mid-Continent - Knowledge of existence of suit does not obviate need for service and actual notice.
      4. Wyman v. Newhouse - Notice may not be served on someone induced to enter a jurisdiction through fraud.
  4. Opportunity to be Heard
    1. Tenured public employees - Loudermill majority recognized these rights:
      1. Oral or written notice of charges
      2. Explanation of employer’s evidence; and
      3. Some opportunity to be heard to respond to charges and evidence
    2. Gilbert exceptions to Loudermill - Tenured public employees do not have right to pre-termination notice and opportunity to be heard when:
      1. Risk of erroneous deprivation is low (e.g., 3rd party determination, such as by arrest)
      2. State interest is high (e.g., employee in position of high public trust)
      3. Private interest is outweighed by state interest (e.g., suspension vs. termination)
  5. Right to an Attorney
    1. Apply the Mathews test, except where physical liberty is at risk.
    2. Lassiter - In child welfare case, the interests of the state and the individual are the same, and the risk of error is low because the issue wasn’t that complicated.
    3. Walters - In non-adversarial proceedings such as VA benefits, no right to attorney.
  6. Injunctions
    1. Types
      1. Temporary restraining orders (TRO)
      2. Preliminary injunctions (PI)
      3. Final/permanent injunctions
    2. Substantive requirements [Sullivan – homeless shelters]
      1. Applicant likely to be successful on the merits
      2. Applicant will suffer irreparable harm without injunction
      3. Harm to enjoined party from injunction outweighed by harm to applicant in absence of injunction
      4. Public interest favors injunction
    3. Procedural requirements – Rule 65 [Microsoft]
      1. For PI
        1. must give notice
        2. can consolidate with trial, or use evidence from PI hearing at trial
      2. For TRO
        1. affidavit or verified complaint must clearly show immediate and irreparable injury will result to applicant before adverse party can receive notice
        2. applicant must certify in writing efforts to give notice, or why notice should not be required; expires after no more than 10 days unless extended
        3. adverse party may move for dissolution or modification on 2 days’ notice to applicant
      3. Security (court's discretion)
      4. Proposed order
        1. reasons for issuance
        2. specific terms
        3. reasonable detail without self-reference
        4. binding only on parties to the action, agents

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