Agenda for 2nd Class

1. Agenda for 2nd Class • Misc. • Nameplates out • If you have extra handouts or sign up sheet, pass them on or give them back to me • Lunch sign up • Friday, noon-1, 4th floor outdoor patio. The door to the roof patio is between rooms 433 and 434. • Service of Process & Due Process (cont.) • Service under FRCP • Introduction to pleading

2. Assignment for Next Class • Review any questions we did not get to from today’s class • FRCP 2,3,8(a),(d) & (e), 12(b)(6), 84 • Yeazell, pp. 365-83 • Questions for next class & Writing Assignment for Group 2 • Briefly summarize Haddle v. Garrison. • Your summary should include the parties, the key allegations of the complaint, the way each court which heard the case ruled, and why. • Try to keep your summary brief. The summary I drafted is 4 sentences and 92 words. Concision is a virtue! • Yeazell pp. 372 Q1 • Read 42 U.S.C. § 1985(2) carefully (Yeazell p. 373). What are the elements of a cause of action under that statute? That is, list all the things that the plaintiff will have to prove to prevail if the case goes to trial. • For each element you listed, find the corresponding allegations in the complaint (pp. 370-71). • Yeazell pp. 376-77 Qs 1-2 and pp. 382-83 Qs 1-2 • Optional. Glannon 615-46

3. Last Class • Mostly about reading a case carefully • Very important to understand • Who parties are • Who won at each stage of proceedings and why • Will help you in all classes, especially in Civil Procedure • 3 factors to consider in evaluating constitutionality of service of process • Probability of actual notice • Compare probability under method at issue to alternative • Cost of notice • Compare cost of method at issue to alternatives • Stakes • Method is unconstitutional if there is an alterative method that can achieve a higher probability of actual notice at reasonable additional cost (or lower cost) considering the stakes. When more is at stake, higher costs are reasonable.

4. Greene v. Lindsey Questions III • 10) According to government records, Jones, a homeowner, failed to pay property taxes on her home for several years. According to statute, if a homeowner has not paid her taxes for several years, the government has the right to sell the property at a tax sale. The government notified Jones of the planned tax sale by sending a certified letter addressed to her at her home. No one was home to sign for the letter, so the postal carrier left a sticky-note on her door advising her that a certified letter was being held for her at the post office. No one claimed the letter at the post office, so the letter was returned to the government office that sent the letter. The government proceeded to sell Jones’s property. Has the government violated Jones’s constitutional rights? 

5. Greene v. Lindsey Questions IV • 11) Dusenbery was arrested and convicted for various drug offenses. According to statute, cash or other property that was acquired through illegal drug sales is forfeit to the U.S. government. After Dusenbery was incarcerated, the government initiated forfeiture proceedings regarding more than $21,000 in cash that it found at Dusenbery’s house. The government attempted to notify Dusenbery of the forfeiture proceedings by mailing a certified letter addressed to him at the prison where he was being held. A prison official signed for the letter, and the prison had procedures for delivering mail to prisoners. It is unclear whether the procedures were followed and whether the letter was ever delivered to Dusenbery. Since Dusenbery did not contest the forfeiture, his money was turned over to the U.S. Treasury and spent on student scholarships. Has the government violated Dusenbery’s constitutional rights?

6. Federal Rules of Civil Procedure • FRCP • Rules which govern civil cases in federal court • Written by Advisory Committee of judges, academics, and practicing lawyers, approved by Supreme Court. Congress can veto. • Interpreted like statutes • States have their own rules • Some states enact rules as statutes (e.g. California) • Some states have judicially created rules (e.g. MA) • Approx. 35 states, including MA, have modeled their procedures on FRCP

7. Service of Process under FRCP 4(c)(1). Summons and complaint served together Summons (Form 3, p. 70); Complaint (Forms 10-11, pp. 74-75) 4(c)(2). Service by anyone 18 or older not a party 4(e) Service on individuals by (1) method allowed by state law, or (2) delivering copy personally or leaving copy at home with person of suitable age living there 4(h) Service on corporations by (1) method allowed by state law, or (2) delivery to officer, managing or general agent, agent authorized to receive service Officer = very high ranking person, e.g. CEO, Secretary, Treasurer State law usually requires designation of someone to receive service Names and addresses on website: http://kepler.sos.ca.gov/ All methods must be constitutional Waiver procedure in 4(d) seldom used, because defendant gets 60 days to answer complaint, rather than ordinary 21 7

8. Other Relevant FRCP Provisions 1. Rules “construed … to secure the just, speedy, and inexpensive determination of every … proceeding” 12(b)(4). Motion to dismiss for “insufficient process” Defect in summons (rare) Plaintiff can refile (start over) 12(b)(5). Motion to dismiss for “insufficient service of process” Plaintiff can refile 55. Default judgment If defendant fails to respond to summons or otherwise defend the case, court may enter judgment against it. 60. Parties may receive relief from judgments (including default judgments) if there was a clerical mistake, for “mistake…. or excusable neglect,” or other reasons. Very unusual Forms 1,3. Forms for summons Forms 1,2,5-6. Forms for Waiver of Service of Process 84. Forms are legally valid 8

9. Service of Process Problems • Cal. Code Civ. Pro. 415.50. Service by publication • (a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article… • (b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served….

10. Service of Process Questions I • For each of the following, discuss whether service of process is valid. Assume each case was commenced in the federal district court for the Central District of California. Justify your answer by referring to the appropriate subsection(s) of the FRCP, e.g. FRCP 4(e)(2)(A). • 1) Prof. Armour sues Prof. Garet for pulling away the chair he was about to sit on. Prof Armour himself delivers the summons and complaint to Prof. Garet in his office. • 2) Prof. Gross sues Dr. McCaffery for botching a surgery and giving her a hairy hand. Prof. Gross has Prof. Epstein deliver the summons and complaint. Prof. Epstein can’t find Dr. McCaffery in his office, but sees his secretary in Dr. McCaffery’s office and gives the papers to the secretary. • 3) A student denied admission to USC Law School sues USC. He is unable to park on or near campus, so gives the summons and complaint to the person manning Gate 1. • 4) Prof. Armour sues Prof. Garet for a playground injury. He attempts to serve process but the process server he hired is unable to find Prof. Garet and his house is abandoned. So Prof. Armour publishes the summons in the Los Angeles Times.

11. Service of Process Questions II • 5) It has been proposed that the Federal Rules of Civil Procedure should be amended to add a new FRCP (4)(e)(2)(D) that would read:  • (D) delivering a copy of each by electronic means at a location previously accessed by the individual within 60 days before the copy is delivered. • a) Is this proposed amendment constitutional? What factors are relevant to this question? • b) Is this amendment a good idea? If you were on the Rules Advisory Committee, would you recommend its adoption? • c) If it were your responsibility to draft a new rule relating to electronic service of process, would you propose different language? If so, draft the rule you would propose.  • 6) How could one argue that service of process by electronic means is already allowed under the FRCP in some circumstances? If you need more information to answer this question, what information do you need? I do not encourage you to do research to find the information you would need. Rather, I hope you will read FRCP 4 carefully to see what provision or provisions of it could be construed under some circumstances to allow electronic service of process.

12. Introduction to Pleading • First major phase of lawsuit • Complaint, answer • Functions • Notice • Identify issues for discovery and trial • Weed out bad claims • Very hard for 1L students • because closely related to discovery and trial • because closely related to substantive law • Good complaint alleges facts relating to every element of cause of action • because law recently changed • Iqbal (2009)

13. Complaint in FRCP I • 3. Complaint filed with court • 4(c)(1). Complaint served on defendant with summons • 8(a). Complaint has 3 parts • Jurisdictional statement. See Form 7 • Short and plain statement of claim. See Forms 10 & 11 • Plaintiff usually must plead facts related to every element of a valid cause of action • Need not cite legal authority • Demand for relief. See Forms 10 & ll • How much money; what kind of injunction • 8(d). Can plead in alternative, even if both can’t be true • 8(e). Complaint interpreted “so as to do justice” • See also Rule 1. Rules construed “to secure just, speedy, and inexpensive determination” of cases • 10, Form 1. Formalities, captions, etc.

14. Complaint in FRCP II • 11. Complaint must be truthful, e.g. supported by legal and factual research (more detail next week) • 12. If complaint is deficient, defendant can make a motion to dismiss under FRCP 12(b)(6) • Case dismissed, if, even if all facts in complaint assumed to be true, plaintiff would not prevail • Motion granted if law does not support plaintiff’s claim • E.g. Prof. Klerman called on John in class, wherefore John prays $1,000,000 in damages. • Forms 10 and 11 provide examples of very short complaints • FRCP 84 says that forms are valid • No one writes complaints that are this short • Why?