Civil Procedure (2005-2006)
I. DUE PROCESS
- Consitution
- U.S. Constitution, Amendment V – “No person shall be … deprived of life, liberty, or property, without due process of law.”
- U.S. Constitution, Amendment XIV – “[N]or shall any State deprive any person of life, liberty, or property without due process of law.”
- California Constitution, Article I, Section 7 – “A person may not be deprived of life, liberty, or property without due process of law.”
- Mathews Test - Weigh:
- Private interest that will be affected by government action
- Risk of erroneous deprivation (including probable value if any of additional safeguards)
- Government interest that would be impaired by additional safeguards
- Notice
- Rule 3 - Action commences with filing of complaint.
- Rule 4 - Summons
- Service
- Summons with copy of complaint
- Disinterested party at least 18; at request of plaintiff, may direct service by US marshal
- Waiver of service
- Waiving service does not waive other objections
- Duty to avoid unnecessary costs; notice and request must be/include:
- Addressed directly to defendant, or an officer or agent of a corporation
- First-class mail
- Copy of complaint
- Consequences of compliance and failure to comply
- Date of request
- Allow 30/60 days to respond
- Extra copy for defendant
- Waiver extends response time to 60/90 days
- Defendants in the U.S.:
- Personally at individual’s “dwelling house or usual place of abode” with some person of suitable age and discretion living there, or
- By delivering copies of summons and complaint to authorized agent
- Service
- Mullane Test - 3 kinds of beneficiaries:
- Known beneficiaries – entitled to notice by mail
- Known beneficiaries that are hard to find – notice by publication sufficient
- Unknown beneficiaries (e.g., future generations)
- Cases
- Greene v. Lindsey - Posting alone not sufficient for actual notice; service by mail may complement.
- Khashoggi - Defendant who has multiple homes had notice when served at a home that has indicia of permanency.
- Mid-Continent - Knowledge of existence of suit does not obviate need for service and actual notice.
- Wyman v. Newhouse - Notice may not be served on someone induced to enter a jurisdiction through fraud.
- Opportunity to be Heard
- Tenured public employees - Loudermill majority recognized these rights:
- Oral or written notice of charges
- Explanation of employer’s evidence; and
- Some opportunity to be heard to respond to charges and evidence
- Gilbert exceptions to Loudermill - Tenured public employees do not have right to pre-termination notice and opportunity to be heard when:
- Risk of erroneous deprivation is low (e.g., 3rd party determination, such as by arrest)
- State interest is high (e.g., employee in position of high public trust)
- Private interest is outweighed by state interest (e.g., suspension vs. termination)
- Tenured public employees - Loudermill majority recognized these rights:
- Right to an Attorney
- Apply the Mathews test, except where physical liberty is at risk.
- 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.
- Walters - In non-adversarial proceedings such as VA benefits, no right to attorney.
- Injunctions
- Types
- Temporary restraining orders (TRO)
- Preliminary injunctions (PI)
- Final/permanent injunctions
- Substantive requirements [Sullivan – homeless shelters]
- Applicant likely to be successful on the merits
- Applicant will suffer irreparable harm without injunction
- Harm to enjoined party from injunction outweighed by harm to applicant in absence of injunction
- Public interest favors injunction
- Procedural requirements – Rule 65 [Microsoft]
- For PI
- must give notice
- can consolidate with trial, or use evidence from PI hearing at trial
- For TRO
- affidavit or verified complaint must clearly show immediate and irreparable injury will result to applicant before adverse party can receive notice
- 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
- adverse party may move for dissolution or modification on 2 days’ notice to applicant
- Security (court's discretion)
- Proposed order
- reasons for issuance
- specific terms
- reasonable detail without self-reference
- binding only on parties to the action, agents
- For PI
- Types
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