Civil Procedure Class Notes
A bit more on Carnival…
What’s the big deal about forum selection clauses?
How would they have applied in the other cases we’ve
done?
How about Burger
King? There was a choice-of-law
clause in it, and there just as well could have been a forum selection clause
in it instead, except for the fact that
How about World-Wide? In particular, what about Seaway? Could there have been a forum selection
clause that would have settled the jurisdiction issue? There could have been a forum selection provision
in the sales contract that said all disputes about the car must be settled in
What about Mitchell v. Neff in Pennoyer?
Could Mitchell have included a forum selection clause to guarantee personal
jurisdiction over Neff in the service contract?
You could easily do that!
This all goes back to the concept of consent. Forum selection clauses and other forms of
consent are an important part of any jurisdictional analysis.
That’s it for personal jurisdiction (proper)! Now we’ll see some little additional topics
that add layers to our understanding of personal jurisdiction.
Next up is:
Notice – Mullane v. Central Hanover Bank
& Trust Co.
What’s a trust? It’s
a legal entity created by a grantor for the benefit of somebody else. These are established by state statutes.
A grantor puts money into a trust and then gives up
control over it to a trustee, who manages the trust not for the grantor or
trustee, but rather for the beneficiary. (In practice, the grantor, trustee, and
beneficiary may be the same person.)
Recall that Hanson
dealt with a trust.
In
Under
Under
Inter vivos trusts are ones where you get the
benefits during your lifetime. Testamentary
trusts give you benefit after you’re dead.
Who is Mullane? He
was the appointed guardian of the people who have an interest in income from
the trust. Some of the people are known,
and some are unknown. How could they be
unknown? You can have the beneficiaries
of your trust be your children who are alive when you die. You don’t know which children will be alive,
or even which ones you’ll have.
What does it mean to have an interest in the “body” or
(principal) of this trust? You want the
principal to grow and not be depleted because you’re going to get it in the
end. (You’d want to invest the money in
aggressive growth funds, for example.)
If you have an interest in the income, you don’t
care about the principal, you just want to get current income. (You’d want the money in high-yield bonds,
for example.)
Procedural posture of Mullane
Where does this case start? It starts in the
Who challenges the notice provision? It’s Mullane.
He says that his folks didn’t get adequate notice. However, the Surrogate’s Court says that the
notice is sufficient. The next two
courts affirm (the Appellate Division of the Supreme Court and the Court of
Appeals of
Jurisdiction in Mullane
Is this case about personal jurisdiction? There’s a lot of personal jurisdiction stuff
in this case. This is a classic in
rem type case. The Court says we
could probably have in rem jurisdiction.
(Note that this case comes before Shaffer.)
They basically say that if the process is decent,
states will have jurisdiction. They base
this view of jurisdiction, including transient jurisdiction, more or
less on tradition. Yeazell calls this “jurisdiction
by necessity”.
But this case isn’t about jurisdiction at all. It’s about notice.
Notice in Mullane
Where did the legislature get the idea that
constructive service of process would be okay?
They
got the idea from Pennoyer! We were told by the Court that constructive service
of process is okay with in rem actions.
What are the elements of due process in this
context? The defendant must know about the suit
and be able to defend yourself.
How do we decide if notice is constitutionally okay? The notice must be “reasonably calculated,
under all circumstances, to apprise interested parties of the pendency of the
action”. It will depend on the
circumstances!
Let’s apply the rule to the facts of this case. What if a person’s whereabouts are
unknown? If the person’s whereabouts
are unknown, then constructive service of process by publication is okay
because it’s the best we can do.
What about someone whose interests are unknown? Same deal.
Publication is okay because it’s the best we can do.
What about known beneficiaries with a known address? Publication is no good. Here are people that you know, and you know
where they are. How so? We’ve been sending them money! So why can’t we send them notice, too?
The Court says publication notice is not reasonably
calculated to inform them of their rights if you know who they are and
where they live.
Does that mean that if we mail notice, we’ll get
everybody’s attention? No, in reality we won’t. Does that matter? No. Why
not? Well, we get some of them. Why is that okay? All these people basically have the same
interests, so the people we get in touch with will be able to protect the
interests of the people we miss.
This is not perfect notice. Even if we know the people and have their
address, mail might get lost. What
could we do instead that would be more sure? We could personally serve all these
people. The Court, however, says that
this is not required.
The limits of Mullane
Are there limits to what the Court says here? Does Mullane require personal
service? Not always, though
sometimes.
Does Mullane
require mail notice? Again: not
always, but sometimes. Other means of
notice are okay for unknown people. Mullane requires “reasonable
notice calculated under the circumstances”, which will vary from group to
group.
Does Mullane
forbid publication notice? Nope.
How do we do notice today? We do certified mail with a receipt
request. This is certainly “reasonably
calculated”. That doesn’t mean that you have
to do it that way. FRCP Rule 4 tells you
the different ways you can serve process.
Think back to Pennoyer. Was Mitchell’s publication notice reasonably calculated
to apprise Neff of the lawsuit?
Nope. He could have just mailed
it. Applying modern stuff, Neff might
get out of the original judgment based on notice even if he can’t based on minimum
contacts.