notice and opportunity to be heard Flashcards
how do we figure out if notice was correct given the circumstances of the case ?
what questions should we ask?
Balance the interest of both P and D
What’s being deprived?
What are the practicalities and challenges and the expenses of notifying people in a different way?
Is the affordable/doable/practical notice method that we’ve chosen is the one ACTUALLY likely to be received
does due process require that we use the best possible method of notifying a person?
no, we just have to use a method that’s reasonably calculated to actually reach the intended recipient, and that we have to act in the shoes of a person who would want that receive the notice
does actual recipt of the notice impact whehtehr the method is consitional via dp?
no, The focus is on the ACTIONS of the notice giver, so that’s what we look at – we don’t look at the recipients ‘accidental’ receipt of notice
key takeaway from mullane
Facts- the common trust fund case; the only notification given to the beneficiaries of the application was by publication in a local newspaper
Some of the beneficiaries are not in NY! It’s a neff situation all over again
Issue: was the notice requirement via ny law enough to afford due process to the P?
Holding: no it was incompatible with the due process clause
notice must be reasonably calculated to apprise interested parties of the action and afford them an opportunity to present their objections! – IF I WERE THAT PERSON AND I ACTUALLY WANTED THE PERSON TO BE NOTIFIED, WHAT METHOD WOULD I USE?
Any reasonably prudent trustee who ACTUALLY wanted notice to be received by people whose addresses he already had would just put it in the mail
what is the due process analysis in mullane (the trust fund case)
Look at the text of due process clause
Liberty or property can be taken with the clause – what’s being deprived here? – the right to file action against the trustee! Once the accounts are settled the beneficiaries loose to the right to sue, SO THAT IS WHY NOTICE WAS SO IMPORTANT IN THIS CASE
what is service of process
refers to the initial notice to the defendant of the filing of a lawsuit against him
includes a copy of the complaint and a summons issued by the court
what are the rule 4e options for serving defendants
1 – following state law for service in the state where the district court is located or where serice is made
- personal service of process on the d by a non party
- non party leaves process at the defendnats dwelling or ususal place of abode with someone of suitable age and discretion who resides there
- non party delviers process to an agent authorized to recive service of process
greene v lindsay – the eviction notice case with the bad kids – keytakeaway/what question do we need to ask?
Facts- the ps were served with an eviction notice via a physical posting on the door, but they claim they never saw the posting and did not learn of the eviction proceedings until they were served with the writs of possession
Issue: did the KY statue as applied to tenants in a public housing project, fail to afford those tenants the notice of proceedings initiated against them required by the due process clause of the 14th amendment
holding – yes!
Would a person who ACTUALLY wanted the resident to receive notice of eviction continue to tack the notice on the door KNOWING that kids would be likely to rip the notice down?
No!
Under the rule of Mullnae, it doesn’t have to be the BEST mode, but it needs to be something reasonable for the circumstances – IE WE GO OFF THE SPECFIC FACTS OF THE CASE
what if we know for a fact that notice has not been recived? – see jones v flowers
When a state is attempting to serve a citizen with process, it must take reasonable steps to serve the notice if service by mail is ineffective.
what if the individual whose property is taken nevr actually recives otherwise proper notice
Dusenberry – FBI follows applicable service state, which required them to serve notice of forfeiture action via publication for three weeks; didnt get a reply from d, and they dispsed of the car
D challgend on the grounds that dp was violated because he did not recive ACTUAL notice and it would not have been hard for the government to have given him actual notice
Adequate notice under the Due Process Clause requires the government to make a reasonably calculated effort to apprise interested parties of a pending forfeiture of property.
what are notice requirements
what is the federal notice requirement
addtional protections for parties on top of the constiutonal requirements for notice via dp
fed = rule four AND the constituion
Kolker v Hurwitz key takeaway
In September 2009, Kolker brought suit alleging multiple causes of action against the Hurwitzes for the intrusion. Through the use of a process server, Kolker left the summons and complaint with the security guard at the entrance of the Hurwitzes’ apartment complex. The Hurwitzes sought to dismiss the complaint, arguing that Kolker had failed to render proper service of process
Is service of process sufficiently made when the summons and complaint are received by someone who does not possess the authority to accept and sign for deliveries or otherwise have a duty to inform the relevant party of any correspondence received?
No; because no indication that he was obligated to accept service
Even if an attorney accepts it, the service doesn’t count unless their client was authorized them to accept the service on their behalf
Nat’l Devel. Corp. v. Triad Holding Corp
Facts- P handed a copy of the summons and complaint to a housekeeper at D’s condo in NY
After D failed to appear in the district court action, a default judgment was entered, and D filed a motion to vacate the default judgment
Issue: Whether the Olympic tower apartment was D’s dwelling house or usual place of abode
Under Fed. R. Civ. Pro 4(e)(2)(B), service is proper at the party’s usual place of abode or residence.
Usual doesnt mean primary!
He spends enough time in the NY condo where he’s at least considering it to be part of the package of residences that he considers to be his home
mattews v eldrige
Peeples got notice that they would no longer be getting their disability checks
What’s being deprived? Property! The expectations of the check are forms of property interest
Issue: does the due process clause require an administrative hearing before disablity benefits are terminated?
Holding: procedural due process doesnt require a hearing before disabilty benefits are terminated
The reason behind revoking the check is based on documentation!
There is no benefit to prehearing evendtiary trial before its taken away because it would still be based on documentation
The decision in matthews was ultimately decided via the third factor, in favor of not having an evidentiary hearing before
what are the mattew factors in terms of determining what process is due when the government wants to effect a deprevation on its own behalf
- the private interest that will be affected by the official action
- the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards
- the government’s interest, including the function involved and the fiscal and administrative burdens the additional or substitute procedural requirement would entail
