Due Process imposes 2 conditions:
- a) Adequate notice of the
- commencement of the action and the issues involved in it
- b) Parties must have
- an adequate opportunity to
- present their side of the case to
What is the Mullane standard for notice?
- must be reasonably calculated under
- all the circumstances, to appraise interested parties of the pendency of
- the action and afford them an opportunity to present their objections. The
- notice must be of such nature as reasonably to convey the required information
- and it must afford a reasonable time of those interested to make their
How does the Court determine "reasonable" notice
- a) Balance analysis of
- Court to determine “reasonable” notice:
- i) Court balances state costs and interest
- against individual interest… to prevent overwhelming burden
- ii) The method most
- likely to succeed to give notice is NOT required.
2 classes of individuals distinguished for reasonable notice:
- i) Person missing or unknown: “interest
- of whereabouts could not with due diligence be ascertained”
- (1) Constructive notice is sufficient…b/c burden too high for actual
- ii) Known/Available to be Known: If the name and address of the defendant is known or available from
- public record, constructive notice NOT satisfy due process mandate.
Define statutory notice
- *Statutory notice-notice that abides by
- the law/statutes
Define Constructive notice
- not actual notice but instead attempt to provide notice that may not be
- immediate (IE: posting, publication in a newspaper, service to family member)
Define Actual Notice
- notice that has sufficient assurance that actual knowledge to the legal
- matter is conveyed to recipient.
- (Personal service is least disputed method of
- actual notice)
Can leave a copy of the summons/complaint to who at where?
- individual’s dwelling or usual place of abode with someone
- of suitable age and discretion who resides
What's the age requirement for service:
- (2) Suitable age and discretion needs to be taken
- into context… it does not mean 18 or older (legal age)… a 16 year old could be
- of suitable age.
AGE REQUIREMENT TO SERVE NOTICE: NC=21; federal 18