Civil Procedure – Law School Outline 1L



I. STATUTORY AUTHORIZATION—IS IT AUTHORIZED?

A. Long Arm Statutes



  1. YES, bc the “last
    tortious act” of the radiator valve exploding occurred in IL.
    (Gray vs. American Radiator)

  2. NO, the breach of
    fiduciary duty (last tortious act) occurred in TX and the connection
    to the diminution of funds was “too remote” (Green
    v. Advance Ross
    )





        • differences–Gray:
          suit against Corporation; Green: suit against individual

        • site of tort is where
          the “last tortious act” occurred, not where it began”





  1. YES, If statute says,
    “to the full extent of the Constitution, then yes—it is
    authorized


B. Federal
Rule 4(k): Territorial Limits of Effective Service
1. Rule
4(k)(1)(A)
: general service rule which says that the Fed. Ct.
may piggy-back
off state
long-arm statute MC test still applies!



  1. Rule4(k)(1)(B):
    applies to parties joined under Rules 14 and 19 which allows for


service of
process “100 miles from the place from which the summons issues.



  1. Rule 4(k)(1)(C):
    special service rule that applies to a D who is part of a federal


interpleader JD
which allows for nationwide service of process.

4. Rule 4(k)(1)(D):
when a federal statute authorizes JD
5. Rule
4(k)(2):
federal long-arm provision that applies to Ds against
whom “claims
arising under
federal law” are asserted when there is no applicable federal
process
provision, and
who are not amenable to suit in any one of the fifty states. Created

partly in
response to Omni. (Applies to foreigners who do not have sufficient
MCs
in any state
to make them amenable to suit.)

a. Omni Capital
International v Rudolf Wolff & Co. (1987):
During an
action
against them,
Omni, a NY corporation impleaded
Rudolf Wolff & Co., a British
corporation
employed by Omni to handle trades in London and James Gourlay,
a
British citizen, who, as Wolff’s representative, solicited Omni’s
business.
Wolff
and Gourlay were not present in LA and were not reached by the LA
long-arm
statute. The Supreme Ct. upheld the both lower federal court
finings
that
JD was unobtainable over the Ds. This instigated the creation of
Rule
4(k)(2).



  • QUESTION: How can the
    Federal Cts. authorize JD with Rules 4(k)(1)(B),(C), and (D) when
    there is no applicable statute? HOW


IS
THIS CONSTITUTIONAL????



    • ANSWER:
      In Stafford v. Briggs,
      Justice Stewart dissented and said: 1) if the test for state JD is
      MCs, then the test for federal JD is “national contacts.” The
      issue is not whether it is unfair for the D to have to litigate in
      an inconvenient forum, but whether the court of a particular
      sovereign has power to exercicse PJ over a named D. A US resident
      is subject to the cts. of the US. DP is satisfied.
    • ANSWER:
      In Oxford First Corp. v. PNC
      Liquidating Corp
      : Judge Bekcer
      stated that extra-district service of process is not constrained by
      MC of Shoe, but 5 factor fairness test should still apply.
      However, most cts. dismiss this opinion and hold that the national
      contacts test is applicable.





II. JURISDICTION OVER
PARTIES OR PROPERTY-IS IT CONSTITUTIONAL?

A. Three Kinds of PJ

1. In Personam

a. Residence



  1. even if not present in
    state when served-(Blackmer v. US)


b.
Tackled within the forum state

i.
Grace v. MacArthur-tackled while in airplane

ii.
Burnham-tackling still constitutional in case where
husband is served
while
visiting children in CA.



  • Scaliatransient
    presence okay bc tradition says so.

  • BrennanInternational
    Shoe MC test necessary. Remember Shaffer that said
    “all assertions of state-court jd must be evaluated to the
    standards set forth in International Shoe and its progeny.”
    MC, yes bc of PA for 3 days doing business and sight seeing. Fair,
    yes bc he had notice that service is good when tacked in FS.

  • What if Grace
    were retried after Burnham?

    • Scalia 4: Yes, bc service
      in state good.

    • Scalia 4: No, bc the
      legislature could not have contemplated airplanes at time of
      creation of statute

    • Brennan 4: Yes, there was
      PA of laws, air-traffic control, etc. even if only for a few
      minutes

    • Brennan 4: No, 3 minutes
      of air from Grace ≠ 3 days Burnham, not PA, not
      enough notice.



iii.
Quill Corp v. North
Dakota
-non-resident corporate
mail contacts

with
resident customers= JD



  • Physical
    presence at any point not necessary for imposition of duty to
    collect use tax.


c. Consent to JD


i. express
consent—Constitutional to order drivers to file a formal
instrument
to drive in the state (Kane v. NJ)




  1. implied consent—driving
    through state is deemed equivalent to



consent to PJ
(Hess v. Pawlowski)




  1. if you sue someone in the
    forum state, counter-suit is okay even if your



suit is only
connection to FS (Adam v. Saenger)



  1. Insurance
    Corp. of Ireland v. Compagnie des Bauxites de Guinee




the
D (Insurance Corp) tried to object to the JD but then refused to
furnish
documentation to discover MCs stating that the ct. had no JD.
The
ct. held that the D had to submit to JD at least to decide whether
or
not
the ct. had JD.




  1. M/S
    Bremen v. Zapata
    -Forum
    selection clauses will be honored



“unless
enforcement is shown by the resisting parties to be
‘unreasonable’
under these circumstances.”




  1. Carnival
    Cruise Lines, Inc. v. Shute
    -Forum
    selection clause on a cruise ticket is Constitutional bc it is
    beneficial to both the corporation and the customers.


  • Cruise
    line has special interest in limiting fora

  • Establishes the forum ex
    ante so there is no confusion over place of litigation—no expense
    of pre-trial motions, etc.

  • Customers benefit from
    lower priced tix.


vii.
waiver (to objections of PJ)



  • Rule
    12(h)(1): a D who fails to raise an objection to PJ in the answer or
    in an initial motion under Rule 12 cannot later object to JD.


d.
Minimum Contacts

i.
Is it Constitutional? (Allowed by the 14th Amendment)

 Are
there MC?


  • YES, PURPOSEFUL
    AVAILMENT
    (International Shoe)

  • YES, Alchemie
    International v. Metal World
    said that telephone calls and
    mail communication to solicit 1 sales K are sufficient btw. two
    corps, but this is left to state’s determination.
  • NO, PA (Kulko v.
    Superior Court
    said that father’s purchase of daughter’s
    one-way ticket to see mother was not PA)

  • No, PA in WWV
    because of unilateral act by the P to drive car into the FS. D did
    not solicit or advertise in FS.












  • Yes, PA with (K) and
    bilateral subsequent communication in McGee when
    insurance K was delivered in FS, insured was resident of FS, despite
    no solicitation, or other policy holders in FS.

  • Yes,
    PA with K and limited and continuous, bilateral
    subsequent communication in Burger
    King ADD MORE ON BK!!!

  • No, PA in Hanson v.
    Denckla
    (BUT REALLY A GENERAL JD CASE bc suit did not arise
    out of the deceased’s communication with the DE trustee. Facts: FL
    court judgment did not have JD over DE trustee)










  • Yes, FORSEEABILITY
    that you could be subject to suit in the FS (rule from WWV)

  • Yes, forseeability of suit
    in Keeton v. Hustler bc of repeated sales of thousands
    of magazines led to PA

  • No, WWV
    forseeability that product might enter FS not enough.

  • **Asahi:
    motorcyclist was in accident, killing his wife, after defective tube
    valve was found to be the cause. No, PJ bc no forseeability of suit
    even though he knew his product was going there and no PA.


  • Stream of Commerce
    Test
    : Brennan 4 in Asahi, SoC enough (Asahi
    dissent)

  • Additional Conduct
    Test
    : O’Connor 4 in Asahi—D must have knowledge
    +“purposefully direct” product toward FS (examples: 1)
    designating the product for market in the FS, 2) advertising in the
    FS, 3) establishing channels for providing regular advice to
    customers in the FS, marketing the product through a distributor who
    has agreed to serve as sales agent in FS (majority in Asahi)

  • Get Stevens!!:
    100,000 dangerous units annually over a period of several years=PA
    (analogize your case to Steven’s test in Asahi to see if
    you can get Stevens)

  • Remember, Asahi: Stream
    of Commerce, Additional conduct, Fairness factors + Burden on
    foreign D, get Stevens!


  • Parry v. Ernst
    Home Center Corp
    : Ct. applied the O’Connor “additional
    conduct” test to say that knowledge that product is going to the
    US is not enough bc D did not “purposefully direct” the maul
    towards UT.

  • YES, FORSEEABILITY with
    the EFFECTS TEST: The D commits an intentional act; expressly
    aimed at the FS, causing harm, the brunt of which is suffered, and
    which the D knows is likely to be suffered, in the FS. (Calder
    v. Jones
    : Grace Jones libeled in National Enquirer sues the
    writer, editor, (both resident of FL and magazine in FL) Also, Sup.
    Ct. stated that free speech 1st Amendment does not effect
    PJ)
  • NO, misapplication of
    the Effects Test (Kulko, when P argued that father
    reaped financial effect/benefit from sending daughter to stay with
    mother—father did not gain $)












  • YES, TECHNOLOGICAL
    CONTACTS okay in Bellino v. Simon several e-mails and
    telephone conversations, plus initiated defamatory contact from D =
    MC.
  • NO, Technological
    Contacts not sufficient in Bellino v. Simon when Mr.
    Aubert called Mr. Spence and he sent a written report in response
    and allegedly defamed Bellino, there was no initiated communication.


  • Bellino v. Simon
    focus on who “iniates” contact.


  • YES, Brown v.
    Flowers Ind
    : one long distance defamatory phone call
    initiated by D to a 3rd party led to specific JD bc the D
    could have easily forseen that the injurious effect of the
    statements would be felt in FS.

  • YES, Inset Systems, Inc.
    v. Instruction Set, Inc: website advertisement not directed at FS =
    PA

  • NO, Cybersell, Inc.
    v. Cybersell, Inc
    .: maintenance of a website ≠ PA

  • Zippo Mfg. Co. v.
    Zippo Dot Com, Inc
    : SLIDING SCALE TEST-the likelihood
    that PJ can be constitutionally exercised is directly proportionate
    to the nature and quality of commercial activity that an entity
    conducts over the Internet. Active websites=PJ, Passive
    websites=not enough. Interactive websites (middle ground) = ?


  • Does the sliding scale
    test imply MC and fairness tests or does it not even matter anymore?
    Does CoA arise out of contact?




      • Hy Cite Corp
        v. Badbusinessbureau.com
        : Sliding Scale test sucks bc:

        • it is
          not clear why a website’s level of interactivity should be
          determinative on the issue of PJ

        • regardless
          of how interactive a website is, it cannot form the basis for PJ
          unless a nexuz exists btw. the website and the cause of action or
          unless the contacts through the website are so substantial that
          they may be considered "systematic and continuous" for
          the purpose of general jurisdiction

        • The Supreme Ct. has
          never held that courts should apply different standards for PJ
          depending on the type of contact involved.






  • Zidon
    v. Pickerell:
    Effects test from Calder
    v. Jones
    is used as an alternative to the
    sliding scale test

  • Millenium:
    deliberate action directed at FS should=PJ for interactive websites

  • GTE
    New Media Serv. Inc. v. Bell South
    :
    suggests that use of the Internet in this case is no different than
    making a telephone call or looking up something in the yellow pages.


    • How do telephone
      calls, faxes, and e-mails fit into the sliding scale test?





ii. Is it
Fair? (If MC, D must “crush” on fairness factors)


1. Actual
burden on D
2. FS
interest in providing redress for its citizens

3. the P’s
interest in a speedy trial

4. the P’s
interest in a speedy trial

5. the
interstate judicial system’s interest in obtaining the most
efficient
resolution of controversies

6. shared
interests of the several States in furthering fundamental
substantive
social policies








        • MC test is meant to
          imply standard of “fairness” as to insure the D’s are not
          subject to suit in a distant or inconvenient state (WWV)









          • Brennan’s
            dissent
            in WWV: MCs must exist btw. the
            parties, the contested transaction, and the FS in order to
            comport w/ “traditional notions of fair play and substantial
            justice” and says that WWV has MC and is FAIR

          • YES, Burger
            King
            : Brennan writes majority and says, there was MC and
            fairness
          • NO, Asahi:
            additional fairness factors when considering the heavy
            burden on foreign D.









7. the similarity
of the legal systems

8. actual distance to
the FS










          • YES, Theunissen
            v. Matthews
            : burdens on D are slight when D is from
            Ontario and P is from Detroit. Ontario is only 10 miles from
            Detroit and legal systems have same common law tradition.






e.
General Jurisdiction (GJ)

i.
CoA does not arise out of contacts with the FS

ii.
YES, GJ in Perkins v. Benguet, a Phillipine
corporation who was
temporarily
stationed in OH was subject to GJ because of the D’s
systematic
and continuous acts within the FS. The D was practically
sued
in it’s home state.

iii.
NO,GJ in Helicopteros v. Hall: majority says that
there was a lot of
contact,
but still not “systematic and continuous” enough because it was

just
one package deal. Helicol was not there enough to say
that TX was
practically
its domicile.






        • Brennan’s dissent:
          there should be a 3rd classification for CoAs which
          relate to contacts within the FS.

        • Helicol
          rule: there is no hard and fast rule on determination on GJ.
        • Basically, if
          there’s a ton of contact, then yes, but if









there’s
not so much, then no.




iv.
NO, GJ over a non-resident corporation when act is done by
independent,
non-exclusive
agent.” More contacts than sales and sales promotion are
required
within the state are required for the assumption of JD.” (Fisher

Governor
Co. v. Superior Court)

v.
YES, GJ when a foreign corporation is connected to a FS corporation

through
a parent corporation. P sued London Hilton through NY Hilton
after
injury occurred in NY. “The interlocking ownership of the two
corps.
led to the conclusion that an agency relationship existed between
them.
(Frummer v. Hilton Hotels International, Inc.)

vi.
NO, GJ when Ds are shown to be forum shopping if product (defective


drugs in this
case) are not manufactured, purchased or consumed in that

FS,
P is not a resident, and the CoA did not arise out of D’s conduct
in
FS.
Even of the D has some contact w/ the FS, the court will not uphold

JD
if the tort, nor the P, have no contact with the FS. (Ratliff v.
Cooper

Laboratories)

2.
In Rem and Quasi In Rem
a.
YES, PJ in Tyler v. Judges of
the of the Court of Registration
:
Petitioners
interest
in land claim denied when he argued insufficient notice. In Rem
judgments
are against the world as they are meant to get rid of known and
unknown
claims. Service by publication is the appropriate instrument for
notice.

b.
YES, PJ in Pennington v. Fourth
National Bank
: Res within
borders
(whether
tangible or intangible), seizure at commencement of proceedings,
and
an opportunity to be heard = Constitutional JD, no violation of Due

Process

c.
YES, PJ in Harris v. Balk:
The obligation of the debtor to pay his debt clings
to
him wherever he goes. QIR JD can be determined by a unilateral act.
See
Katie
about the notes and questions to this case.
d. NO,
PJ in Shaffer v. Heitner: stock in DE not good enough
to establish PJ
over
Greyhound, a non-resident corp. incorporated under DE law which
says,
the
stock is deemed to be DE, the situs of the stock. The Ct. ruled that
“all
assertion
of state JD must be evaluated according to the standards of set
forth
in
International Shoe and its progeny.” (i.e.-minimum contacts,
fairness) after
P
tried to sequester D’s stock. The ct. reasoned that IR and QIR
proceedings
are
really proceedings against the person or the person’s interest.
Shoe test
should
be done for IR and QIR. MC test won’t really affect IR bc res in
the
FS will most likely meet the MC test. MC test will have a dramatic
effect
QIR
cases.







          1. Why change? MC test is
            easy, fair, and more applicable to contemporary notions of
            justice.
          2. Powell
            Concurrence: this new rule goes too far, but MC is a good test
            for stock.
          3. Stevens
            Concurennce: this new rule goes too far in that it may
            unreasonable in some cases.

          4. Brennan’s Dissent:
            if we are going to make up this rule, the P should be allowed
            time to discover MCs. Also, DE clearly
          5. has an interest in
            deciding this issue since it made the statute. If the D tried
            to bring themselves under the rules of the
          6. state, they should
            be bound by them in a judicial proceeding.

          7. Shaffer
            basically overrules Harris, but Harris is still
            alive: 1) if there is no other forum, the property=JD, and 2) in

          8. Steven’s
            concurrence bc he says that it seems unreasonable to apply MC
            test in some cases, 3) if D is avoiding JD by
          9. moving property,
            4) as in Rhoades v. Wright (see below)

          10. DE changed its law as
            a result of this case to ensure JD in like future cases.






e. YES,
PJ in Rhoades v. Wright when Sup. Ct. of UT
considered:







          1. the presence of the
            land (as distinguished from the kind of chattel involved in
            Shaffer)
          2. the fact that the
            CO D actively used the land

          3. the fact that the
            person who died in the wrongful death suit was a UT resident

          4. ….to conclude that
            the D has sufficient contacts w/ UT to satisfy DP requirement
            for QIR JD.






  1. YES, PJ in Feder
    v. Turkish Airlines
    where the ct. upheld QIR JD based on


the
attachment of the D corporation’s NY bank account which was the
D’s
sole
contact with NY. The account was for the purchase of aircraft parts
and
components
and the CoA stemmed from a wrongful death suit which
happened
in Turkey.




    • QUESTION: Does this
      illustrate how cts. treat corporations and individual D’s
      differently? Yes.

    • QUESTION: Is the
      difference btw. this case and Shaffer in that his is a wrongful
      death suit?



  1. NO,
    QIR JD over insurance obligation attachment after ct. separated the



contacts
btw. the D and the FS and the contacts btw. the insurer and the
forum.
Insurers contact with the FS cannot be used to establish over the D
policy
holder. (Rush v. Savchuk)



  1. YES, QIR JD in Admiralty
    courts! EXCEPTION to Shaffer in Amoco


Overseas
Oil Co. v. Compagnie Nationale Algerienne de Navigation
in
which ct. upheld
JD based on attachment of a foreign corp.’s bank account
reasoning that
“maritime actors must reasonably expect to be sued where
their property
may be found.” Is this an example of #1 exception to
Shaffer?



  1. Cybersquatting-“registering,
    trafficking in, or using Internet addresses that


are identical or
confusingly similar to protected trademarks.”




    1. i.Cybersquatting=online
      version of a land grab (Interstellar Starship Servs., Ltd. v
      Epix, Inc
      )

    2. ii.Congress responds by
      creating CoA over cybersquatting with a bad faith intent to profit
      and says that when in personam JD
    3. is not available,
      (typically when the D is overseas), IR JD in the FS where the
      domain name is registered is OK.

      • example: Harrods
        Ltd. v. Sixty Internet Domain Names








IIi. HOW TO CHALLENGE
JD

A. Direct Attack

1. Challenge
in your answer

a.
“special appearance”-the procedure at common law by which a D
presented a
challenge
to the court’s exercise of personal JD without submitting
to the
court’s
JD for any other pupose.
If
the D argues the merits of the claim in any way, the “special
appearance”
becomes
a “general appearance,” a voluntary submission to the court’s
JD.

**The
rules on special appearance vary from state to state, but most
states
follow
the federal scheme.**



  1. Data
    Disc, Inc. v. Systems Technology Associates, Inc.:

    The limits which the


district
judge imposes on the pre-trial proceedings will affect the burden
which
the
P is required to meet. Where the JD facts are enmeshed with the
merits, a
decision
on the JD issue is dependent on a decision on the merits. In this
case,
the
P will not be required to meet the higher burden of proof.


Rule
12(d)
: preliminary hearings-a
motion for judgment on the pleadings is
generally
heard before commencement of the trial, although the court may
order
the motion deferred until the time of trial.



  1. Baldwin
    v. Iowa State Traveling Men’s Association
    :
    D made a special appearance to challenge the service of
    process and personal jurisdiction. The court denied the motion. D
    failed to plead on the merits and the court filed a judgment against
    D. D did not appeal this judgment. P filed action against D in Iowa
    to recover the Missouri Court’s judgment but D again brought the
    challenge to service of process and personal jurisdiction. In this
    case, the D tried to directly and collaterally attack. Not
    possible—YOU HAVE TO CHOOSE !!

    • Under the principle of
      res judicata, once the D’s motion was denied in




Missouri’s
court, he was bound by that ruling. D cannot raise the same
issue in
another court. D could have fought the case in Missouri and then
raise the issue
during appeals process in Missouri. But he did not.
Therefore, the
Missouri court’s ruling is binding.


***“A
defendant who makes no appearance whatsoever remains free to
challenge
a default judgment for want of PJ. A court only has power to
determine
its own PJ is limited to D who submit the question for judgment
to
the court.”***



  1. limited
    appearance”
    -when a D in action commenced on a QIR basis
    appears for the limited purpose of defending his interest in the
    attached property w/out submitting to the full in personam JD of the
    court.



without this provision, a
D must choose btw. appearing and possible
suffering
a judgment in excess of the value of the attached property or not
appearing
and possible suffering a judgment against the property, as in U.S.

Industries,
Inc. v. Gregg

2. 12(b)(2)
motion: How presented

– “Every
defense in law or fact, to a claim for relief in any pleading,
whether a claim,
counterclaim,
cross-claim, or third-party claim, shall be asserted in the
responsive
pleading
thereto if one is required, except that the following defenses may
at the
option
of the pleader be made by motion: (2) lack of JD over the person….
A
motion
making any of these defenses shall be made before pleading if a
further
pleading
is permitted. No defense or objection is waived by being joined
with one
or
more other defenses or objections in a responsive pleading or
motion. If a
pleading
sets forth a claim for relief to which the adverse party is not
required to
serve
a responsive pleading, the adverse party may assert at the trial any
defense in
law
or fact to that claim for relief.

NOTE:
different than
12(b)(5): insufficiency of service of
process
(challenge to
notice)

B. Collateral
Attack
-attack lawsuit of one FS by attacking it in another
state, claiming that
the FS does
not have PJ to excise judgment. If a collateral attack is chosen,
you then
give up
your right to attack the merit of the claim.

 Why might
someone do this?

1. if
they are certain there is no JD.

2. if
they know they can’t win on the merits and defending it will cost
time and
money.

3. to
run out the statute of limitations (if you happen to win on the
collateral attack,
the
P would have to re-file and this may exceed the SoL)

4. If it is big
corporation and the settlement is so small that litigation in the FS
will
cost more than
the settlement.


***NOTE: A
DISMISSAL FOR A LACK OF JD IS A DISMISSAL WITHOUT PREJUDICE. A P
CAN RE-FILE THE CLAIM, BUT PROBABLY IN A MORE DISTANT FORUM***


C. waiver
(to objections of PJ)


Rule 12(h)(1):
a D who fails to raise an objection to PJ in the answer or in an
initial
motion
under Rule 12 cannot later object to JD.



IV.
NOTICE

A.
Federal Rule of Civil Procedure #4

1. Rule 4: Summons:
sets forth specific means of making personal service on, among
others,
individuals, corporations, partnerships, and other associations
subject to suit
under a common
name.

2. Rule 4(d):
Waiver of Service

– strongly
encourages waiver of formal service.

– Like PJ, notice
and service of process requirements may be waived by a party at

trial or in
advance of litigation.



  1. an action commences when
    the  send a form (Form 1A) entitled “Notice of Lawsuit and
    Request for Waiver of Service of Summons,” or similar document,
    by first class mail, postage prepaid, or some other reliable means.

  2. Domestic s have 30 days
    from the date on which the waiver was sent to return the waiver;
    otherwise they will be charged with the costs associated w/
    providing formal service. Also, s receive an incentive in that
    they are allowed 60 days after the date on which the waiver was sent
    to answer the complaint if the waiver is returned in a timely
    fashion.

    1. Maryland State
      Firemen’s Association v. Chavez (1996)
      : service of
      process by first-class mail plus 3 telephone conversations with a
      representative of the D in reference to the matter, but the D never
      returned the paperwork or officially answered the summons. The
      court held that personal




service
is required before entering a default judgment if a

domestic
defendant fails to respond.

ii.
Audio Enterprises v. B & W Loudspeakers:
Federal Express is
not
1st class mail, postage prepaid.




  1. cognovit
    note”-
    debtor waives objection to JD, notice, and service of


process.



iii. D.H.
Overmyer Co. v. Frick Co. (1972)
: cognovit note not a
violation
of the Due Process Clause, but agreements are weighed
on a
case-by-case basis, w/ special attention to if there was


unequal
bargaining power or lack of consideration.



  • Many state courts have
    invalidated cognovit notes and other “consent to judgment”
    provisions.


***What about
internet contracts where waivers of JD, notice, and service of
process

are made
w/ the click of the mouse?***

3. Rule 4(e):
Personal Delivery on Natural Persons

– specifically
provides that state procedures to serve a party “may be effected
in any
judicial
district in the United States,” thus enabling federal courts to
take
advantage
of the reach of long-arm statutes.



  • The story of Mr. Grossman,
    the process-server, and his unique ability to “place


and leave
with”
any summons on any person.



  1. Rule 4(e)(1):provides
    an alternative to 4(d) methods by broadly authorizing the


use in federal
courts of the procedures governing the manner of service
prescribed by
the law of the state in which the District Court is sitting.

b. Rule 4(e)(2):
Service on a Person Residing in
’s Dwelling House
or Usual

Place of
Abode:
permits service of process to be made upon an individual
by
leaving a copy
of the summons and complaint at his “dwelling house or usual
place of abode
with some person of suitable age and discretion then residing
therein.”

– Based upon the
facts of each individual case



  1. National Development
    Co. v. Triad Holding Corp.
    -service to a housekeeper was
    upheld after a millionaire  claimed that the NY apt. where the
    service was delivered was only 1 of 12 places he actually resided.
    Service was upheld bc the  was actually living at the NY apt. at
    the time of service. The court said that this was the most
    likely method of ensuring the

    received the
    summons and complaint, reasonably
    calculated to provide actual notice.

  2. Karlsson v.
    Rabinowitz
    service was declared invalid after the



summons and
complaint was left with the ’s estranged wife at his old
house and the 
had no intent to ever return. The  did not

receive
the paperwork until 3 years later after the judgment had been
entered
against him.

c. Rule 4(e)(2):
Delivery to an Agent Authorized by Appointment:
service by
delivering a
copy of the summons and complaint to an agent of the  who is
“authorized
by appointment or law” to receive process.



  • There MUST BE EVIDENCE
    that  himself intended to confer such



authority upon
the agent. The agent’s claim is not enough.





    1. National Equipment
      Rental, Ltd., v. Szukhent:
      1 ½ pg K with
      authorization of agent clause at the end of the K, in the same type
      as the rest of the K, the K stated that the respondents authorized
      Florence Weinberg of, Long Island City, New York, as the agent for
      the purpose of accepting service of any process within the State of
      NY." The respondents were not acquainted with her. The
      petitioners delivered the summons and complaint for the suit to
      Florence Weinberg, pursuant to the K and Ms. Weinberg accepted the
      paperwork and promptly mailed a copy to the respondents. The ct
      held that the law only requires "prompt notice to the
      respondent needs to be given and the ‘authorized agent by
      appointment’ designated in the K meet the standards of Federal
      Rule 4(e)(2)."



4. Rule 4(f):
Service on Individuals in a Foreign Country
: makes provision for
service
of process in
a foreign country affording American attorneys with a flexible
framework to
comply with procedures of foreign countries.

– provides that “any
internationally agreed means reasonably calculated to give
notice” may
be used to effect service on persons outside the US.

– internationally
agreed means contained in the Hague Service Convention: each

Contracting State
must establish a Central Authority, which will receive and
execute requests
for service from judicial authorities in other Contracting States,
and will see that
a certification that service has been affected is returned to the
court of origin.




      1. avoids violating the
        sovereignty of other countries by adhering to their official
        standards and procedures.

      2. maximizes the likelihood
        that the judgment rendered will be recognized and enforced abroad.

      3. does NOT govern in those
        countries that are not Contracting States and does NOT govern in
        all circumstances

      4. Volkswagenwerk
        Aktiengesellscheft v. Schlunk (1988):
        Convention only
        applies if service is made “abroad,” rather than on the
        domestic subsidiary of a foreign corporation.
      5. Does not apply when
         takes advantage of the “Waiver of Service”—only invoked
        by “service” abroad.

      6. Foreign ’s still
        receive incentives to return the waiver, but are allowed to refuse
        to return the waiver as anything compulsory might violate the
        Convention.–
      7. Rule 4(f)(3):
        authorizes forms of service “by other means not prohibited by
        international agreement as may be directed by the court.”




5. Rule 4(h):
Service on Artificial Entities: Corporations, Partnerships, and

Unincorporated
Associations
: authorizes service upon corporations,
partnerships,
and
unincorporated associations that are subject to suit under a common
name.

– permits
service by delivery of process to an officer, a managing agent, or a

general
agent.



  1. Insurance Co. of
    North America v. S/S “Hellenic Challenger” (1980)
    : ’s
    service of process upheld even though the agent who accepted the 
    misplaced the summons and complaint. The court held that the
    service was made to “a representative so integrated with the
    organization that he will know what to do with the papers.” Such
    service is reasonably calculated to get to the intended recipient.



    • Court would have
      decided differently if the evidence showed that the acceptor of the
      summons and complaint had such “infrequent contact” with such
      paperwork and whose “unfamiliarity with service of process
      increased the risk of careless or improper handling”.

    • If acceptor’s loss of
      the summons and complaint is a “mistake in the ordinary course of
      internal operations of ’s business”, such a mistake does not
      merit remedial relief.



  1. Fashion Page,
    Ltd. v. Zurich Ins. Co. (1980
    ): A corporation may
    assign the task of accepting process and may establish procedures
    for insuring that the papers are directed to those ultimately
    responsible for defending its interests (i.e.-an executive secretary
    may accept service of process, despite the fact that he/she is not a
    “managing agent.”)


6. Rule
4(m): Time Limit for Service
: requires a federal court to
dismiss without
prejudice
an action when the  has not been served within 120 days of the
filing of
the
complaint, if the  fails to show “good cause” for not
completing service
within that
time.

– In cases
where service is promptly attempted, but improperly made, the court
has
discretion on whether to dismiss the action without prejudice or
whether to
quash
service and order the  to re-serve.



B. Federal Rule of
Civil Procedure #5: Service and Filing of Pleadings and Other Papers

1. After the
process-server has delivered the papers, he must file a return,
which
should
disclose enough facts to demonstrate that  actually has been
served and
given
notice that he is required to appear in court. A return of service
is not
conclusive
and may be proved to be inaccurate, however, a ’s testimony
alone
will not
suffice as proof.



  1. Miedrich v.
    Lauenstein (1914):
    the Court upheld a mortgage foreclosure
    judgment against the  after a sheriff filed a false return of
    service. The court reasoned that the judgment was justified bc the
    court acted on a return which they thought was true.

  2. United States v.
    Brand Jewelers, Inc. (1971): The court held
    that the US had good standing to seek an injunction preventing 
    from systematically obtaining default judgments against economically
    disadvantaged people by utilizing so-called “SEWER” SERVICE
    techniques, by which the process-server simply disposes of the
    papers and makes a false affidavit of service.


  • one major cause of
    such technique was bc delivery of a summons to a person other than
    the  was not permitted unless the process-server had first
    exercised due diligence to locate the .—This led to legislative
    changes.


2. Rule 5(b):
Making Service:
allows service by “electronic means” when
“consented
to in writing by the person served.”

3. Rule 5(e):
Filing with the Court Defined
: makes certain electronic filing
questions
a matter of
local rule.

C. Federal Rule of
Civil Procedure #3: Commencement of Action–Service of Process
and Statutes
of Limitations: governs when a Federal action commences

– the action is
commenced when a copy of the complaint is filed with the district
court

– BUT, if the
underlying cause of action is based in state law, state law will
govern
when the
action officially commences.



V. PROVIDING NOTICE

A. IS IT
CONSTITUTIONAL?

1. Mullane v.
Central Hanover Bank (1950)
:
– Bank
attempts to file suit against all beneficiaries saying, “this is
how we have
been and
will continue to manage the funds. If you have a problem with that,

step
forward now or shut up. In other words, it was a judicial
settlement to
make sure
the beneficiaries are bound to the bank’s results.

– To trigger this
lawsuit, the Bank had to give notice.

– The Bank files
notice in: 1) a newspaper, publication and 2) at the time the
trust was
initiated, the Bank mailed a copy of the law discussing the yearly
settlement
procedures to all beneficiaries whose address they had. The Bank
followed the
letter of the law so it was authorized, but was it was
constitutional?



  1. Justice Jackson says the
    DP clause applies here bc people are potentially being deprived of
    property,$, in that the Bank is taking away their right to $. The
    Bank is attempting to bind the beneficiaries to not contesting the $
    mgmt.

  2. The Bank says that the
    QIR, IR rule from Pennoyer from applies to this IR case, but this
    does not mean that publication is automatic notice.

  3. Constitutional=Fair.
    The test is if the DEVICE WAS “REASONABLY CALCULATED” to give
    the D notice
    Whether the D actually gets the
    notice is irrelevant, the test is whether the method of notice is
    “reasonably calculated”

  4. The
    Court says: 1) known addressees=invalid, 2) unknown whereabouts
    beneficiaries=valid.

  5. WHY?
    The focus of Constitutionality of Notice is on EFFICACY
    and ALTERNATIVE.

    • EFFICACY: known address
      people had only a small chance of seeing a notice in a publication.
      Plus, the initial mailing didn’t give any settlement details.
      It was not effective. Unknown address notification was efficient.

    • ALTERNATIVE:
      They could have done a 2nd,
      more specific mailing to known address beneficiaries. There was no
      alternative for unknown address beneficiaries.

  6. The Bank argues that
    using an alternative would be too costly, too burdensome, too
    time-consuming for what’s at sake. They are not taking the
    property from the beneficiaries, just forfeiting the right to
    contest money mgmt.

  7. The Ct. says, shut-up.
    You should have mailed the letters.

  8. THE MULLANE TEST:


  1. Is it authorized?
  2. Is it
    constitutional?



    • Is it efficient
      (reasonably calculated)?

    • Are
      there better alternatives?

    • what is the
      size of the deprivation?



  1. If the P knows the D’s
    name and address and the thing at stake is



valuable,
notice by mail is generally accepted.




  1. If
    the deprivation is small, the address is unknown, then publication
    is



okay.

k.
REMEMBER: actual notice is not relevant, it’s the procedure

STUPID.


2.
McDonald v. Mabee (1917):
service by publication 4 consecutive wks. in a TX
paper
was not sufficient bcD had left TX to establish a domicile elsewhere
and ct.
said
that it was not the most
likely method. (pre-Mullane)

3.
Walker v. City of Hutchinson:
service by publication in a local newspaper in
state
condemnation proceedings not Constituional.



  1. Mennonite
    Board of Missions v. Adams
    :
    notice by publication and posting must be supplemented by notice
    mailed to the mortgagee’s last known available address, or by
    personal service when dealing with real property.

  2. Tulsa
    Professional Collection Services, Inc. v. Pope
    :
    “application of a state requirement that claims against a decedent
    be presented to his executor within two mos. of publication of
    notice of the commencement of probate proceedings was held to
    violate due process where it cut off rights of creditors whose
    identity was reasonably ascertainable to a decedent’s executor and
    who were not given notice.” The state interest in getting things
    done quickly, tries to trump the requirement of adequate notice, but
    the Ct. said no when actual notice is not overly cumbersome or
    impracticable.

  3. Greene
    v. Lindsey
    : notice by posting
    to non-rent payers not constitutional in apartment where flyers are
    routinely pulled down off walls. Service by mail is much more
    effective and provides an easy alternative, especially when
    depriving a D of place to live.

    1. O’CONNOR’S DISSENT:
      1) how often is it really that someone pulls a posting off the
      wall, 2) the deprivation is small here! The tenants are dead beats
      and they haven’t paid rent. It is a small thing to kick a person
      who hasn’t paid rent out of their apartment.

    2. This case provides an
      example of how cts. are divided amongst liberals and conservatives.

  4. Dobkin
    v. Chapman
    : The NY Court
    of Appeals upheld court-ordered substituted services (by mail to the
    Ds last know addresses and by publication) when the whereabouts of
    the Ds of 3 automobile accident cases were unknown. The court held
    that the P’s did the best they could do in these “situations in
    which insistence on actual notice, or even the high probability of
    actual notice, would be both unfair to the Ps and harmful to the
    public interest.” The onus was put on the Ds since they should
    have been sure to give the Ps the proper addresses. (WHEN PERSONAL
    SERVICE IS IMPOSSIBLE)

  5. Covey v. Town of
    Somers
    : Notice by mail is not sufficient when dealing with
    someone who has been adjudged insane and


committed to a
hospital, who is also without protection of a guardian.



  1. Dusenberry
    v. US
    : service of process by
    mail from the FBI to a federally incarcerated prison inmate declared
    Constitutional even though the mail clerks did not specifically say
    that the notice depriving the D of drug-related properly got to the
    D. They only said what the procedure was and that it is usually
    followed. The Ct. declared that the method of notice was
    “reasonably calculated to reach the D.”

    1. GINSBURG’S DISSENT:
      this method is too lax when you consider the fact that the
      Government has total control of the inmate’ s location.

    2. This case was split again
      btw. liberals and conservatives, but the conservatives won.

    3. This case affirms the
      minimum requirement that service by certified mail is a method
      reasonably calculated to reach the D and if it does not, the mail
      will usually be returned to sender.



d.
**this presents a problem for people whose location, travel, and
mail are

controlled
by the government , such as members of the armed forces, law

enforcement
agents, or other government employees, especially those who

are
in a combat situation.**



  1. Cash
    v. Hamilton County Department of Adult Probation
    :
    Issue of how to send reasonable notice to homeless
    individuals who lack a permanent resident or fixed address. Is
    publication in a newspaper sufficient? Case remanded.


CONTENT OF
NOTICE



  1. Aguchak
    v. Montgomery Ward Co
    : Supreme
    Ct. of Alaska set aside a default judgment after the appellants
    failed to respond to a small claims summons that did not inform them
    they could: 1) appear by a written pleading, 2) request a change of
    venue, and subsequently had a judgment entered against them.

  2. Finberg v. Sullivan:
    PA’s post-judgment garnishment procedure which permitted the
    seizure of assets without notice or opportunity for a hearing, upon
    a judgment creditor’s petition (to a clerk or magistrate) for a
    writ of execution, violated the Due Process Clause.


UNCONSTITUTIONAL/FRAUDULENT
NOTICE



  1. Wyman
    v. Newhouse
    : A
    judgment procured fraudulently lacks JD and is



null
and void.



  1. Tickle
    v. Barton
    :
    held
    that where attorney for plaintiff telephoned defendant at his


Virginia
home and invited him specially to attend certain high school banquet
in
West
Virginia, without disclosing his name or that his purpose was to
obtain
personal
service in West Virginia county of process on defendant, and
defendant
would
not have attended banquet if facts had been revealed, service of
alias
process
on defendant at banquet was void, and did not justify exercise by
Circuit
Court
of jurisdiction over defendant.

NOTE:
Fraudulently inducing a D to enter a JD vs. Fraudulently inducing a
D already within the JD to accept service of process. The latter is
legal. (
Gumperz
v. Hoffman
)



VI. Immunity From
Process and Etiquette of service

A. POLICY and
ISSUES:

– justified as
promoting the administration of justice

– benefits the court


originally meant to protect the court from interference with its
judicial processes


Immunity from process serves legitimate goals, but when carried to
the extreme, it

ignore
the P’s desire to litigate in a local forum ( i.e.: P can’t sue
D bc D has

immunity).


– How should the
State balance these interests?

1. Maybe
by weighing the efficiency. If the intent behind immunity is to
make the

cts.
more efficient, there has to be a line at which the interest of
justice outweighs

the
purpose of immunity.


2. Maybe by making
restrictions on immunity.


B.
Illustrations

1. State Ex.
Rel. Sivnksty v. Duffield
: Ct denied immunity when
the D,
Sivnksty,
struck and injured two children with his car while vacationing in W.
VA.

Sivnksty
had planned to vacation there until July 2. After the accident,
Sivnksty

was
arrested for reckless driving, was unable to post bond, and remained
in jail

until
his trial on July 2. While stuck in jail, Sivnksty was served with
process in a

tort
action brought by one of the injured children.





      1. Rule: "A
        person confined in jail on criminal charge or imprisoned on
        conviction for such charge is subject to civil process,
        irrespective of the question of residence, at least if he was
        voluntarily in the JD at the time of the arrest and confinement."
        (72 C.J.S., Process, Sec. 82)




2.
In many cases, immunity is governed by statute:




  1. Kadic
    v. Karadzic
    :
    immunity from service is confined to the headquarters distrct itself
    so a diplomat was not immune bc he conducted affairs outside of the
    principal headquarters.

  2. Silverman
    v.

    Superior
    Court
    :
    In CA and NY, if the long-arm statute can reach the D, the D is not
    granted immunity.





VII.
PROVIDING AN OPPORTUNITY TO BE HEARD


D must be able to develop the facts and legal issues in a case.


D must be informed of the action (receive notice) sufficiently in
advance so one can obtain
counsel
and prepare a defense



  1. Illustrations


1.
Roller
v. Holly
:
Due
process violated where D in VA was only given 5 days
notice
to appear in TX. Most statutes require a minimum of 20 days.

2.
Goldberg
v. Kelly
:
procedural
due process applicable for termination of welfare
benefits.
(Notice, a right to be heard)



  1. Dicta:
    The hearing “must be tailored to the capacities and circumstances
    of those who are to be heard.” “Termination of aid pending
    resolution of a controversy over eligibility may deprive an eligible
    recipient of the very means by which to live while he waits.

  2. “KIND
    OF HEARING” LINKED TO THE “NATURE OF THE P’S



INTEREST”




  1. Provisional
    remedies”

    provide exceptions to the ordinary requirements associated


with
the constitutionally mandated opportunity to be heard and are
justified by the
need
for expedition and summary.

1.
PRE-JUDGMENT HEARING
FACTORS OF CONSIDERATION

– Interest of
the P

 Risk of
Delay

– Interest of
the D

 always interest in
the “continued use and possession….”

– Risk of
Error




    1. No Notice

    2. Is the Affidavit
      Conclusory or Factual?

    3. Is there an opportunity
      for a post-judgment hearing? If so, when?

    4. What is the burden of
      having a pre-deprivation hearing? (Usually low.)

    5. Is the P required to post
      a bond?

    6. Who issues the writ? A
      clerk? A judge?

    7. Is this a simple case
      involving paperwork or more complex?



2.
Illustrations
of Limitations on the use of Provisional Remedies



  1. Sniadach v. Family
    Finance Corp (1969)
    : Ct. struck down a WI
    pre-judgment wage garnishment procedure. The ct. weighed the fact
    that garnishment was a great drain on family income.

  2. Fuentes
    v. Shevin (1972)
    :
    The central
    meaning of procedural due process is clear, as parties whose rights
    are to be affected are entitled to be heard, and in order that they
    may enjoy that right they must first be notified. It is equally
    fundamental that the right to notice and an opportunity to be heard
    must be granted at a meaningful time and in a meaningful manner. The
    use of provisional remedies cannot preclude this right.

  3. Mitchell v. W.T.
    Grant Co. (1974)
    : Ct. held that sequestration of personal
    property was Constitutional due to the P creditor’s interest in
    the property in an installment sale of goods.

  4. North Georgia
    Finishing, Inc. v. Di-Chem, Inc. (1975)
    : pre-judgment bank
    account garnishment un-Constitutional when a P claimed the D owed
    him $ for goods sold and delivered.

  5. Connecticut v. Doehr
    (1976)
    : pre-judgment deprivation of real property is
    response to a cause of action arising out of an assault and battery
    claim is Un-Constitutional.
  6. Mathews v.
    Eldridge (1976)
    : Gov’t. pre-judgment termination of SS
    benefits constitutional after considering 3 factors:


  1. the private interest
    that will be affected by the official action

  2. the risk of erroneous
    deprivation of such interest through the procedures used, and
    probably the value, if any of additional or substitute procedural
    safeguards

  3. the Gov’t’s interest,
    incl. the function involved and the fiscal and administrative
    burdens that the additional or substitute procedural requirement
    would entail.

  4. **NOTE: particular
    importance is given to claims in which “the government itself
    seeks to effect a deprivation on its own initiative.”**


  1. Richmond Tenants
    Organization, Inc. v. Kemp
    : Ct. held



that drug
activities are not “exigent circumstance”so as to constitute an

exercise of a
pre-judgment eviction from a Public Housing facility. The
level and type
of drug trafficking may effect whether there is in fact an
exigent
circumstance, but drug activity = not enough.




  1. United States v.
    James Daniel Good Real Property
    : seizure of house no good
    after US obtained an ex parte write of arrest in rem from a
    magistrate judge after showing that the D’s house was used in
    drug-trafficking 4 years earlier.

  2. Bennis v. Michigan:
    a forfeiture of a family’s automobile held as Constitutional after
    a husband used the car for sex acts with a prostitute. The Gov’t.
    provided the wife with notice of a hearing to contest the
    forfeiture, but refused to acknowledge the wife’s interest in the
    automobile. The Ct. ruled that “an owner’s interest in property
    may be forfeited by reason of the use to which the property is put
    even though the owner did not know it was to be put to such use.”

  3. Patterson v. Cronin:
    Immobilization of a car by use of a boot declared a violation of Due
    Process solely bc the State failed to provide a post-deprivation
    hearing, despite the fact that the driver had been illegally parked
    7 prior times.

  4. Shaumyan v. O’Neil:
    (Connecticut) pre-judgment seizure of a house declared
    Constitutional in a K hearing since the risk of error was low and
    the P was a contractor who worked on the home and had a substantial
    pre-existing interest in the home.
  5. Peralta v.
    Heights Medical Center
    : Pre-judgment seizure and selling of
    an employer’s property by a hospital to recover a medical bill
    owed by the employer on behalf of one of his employees declared
    un-Constitutional.











































































VIII. SUBJECT MATTER
JURISDICTION—Can this court hear this type of dispute?

A. Federal cts.
have limited JD—must be something affirmative to grant JD

B. To be in
Federal Court:

1. Authorized
by The Constitution (Article 3) (CONSTITUTIONAL)



  1. arising under the
    Constitution, under the law of the US, under Treaties=NECESSARY
    INGREDIENT
    DEMANDS A BUT FOR ANALYSIS—But for the law,
    the claim or parties wouldn’t exist! (Osborne)

  2. all cases affecting
    ambassadors, other public ministers, and consuls

  3. all cases of admiral and
    maritime JD

  4. controversies where the US
    is a party

  5. controversies btw. 2 or
    more states (i.e., a dispute over a border; THESE CASES START AND
    END IN THE SUPREME CT)

  6. between a state and
    citizens of another state

  7. between citizens of
    different states

  8. between citizens of the
    same state claiming lands under grants of another state

  9. btw. someone in the US and
    an alien (alienage JD)




      • Hypo: Law
        states that “Shaun can sue in Federal Ct.” Julie punches
        Shaun. Can Shaun sue in Federal Ct? 1) Authorized, Yes. 2)
        Constitutional, No, bc federal law is not necessary ingredient in
        dispute so suit doesn’t arise under Federal law.




  1. Authorized by Congress

    1. § 1331-Federal Question

      1. The district cts. shall
        have original JD of all civil actions arising under the
        Constitution laws, or treaties of the US.

        • MUST BE PART OF THE
          PLAINTIFF’S COMPLAINT

        • Merrell Dow:
          Private CoA created by law

        • Grable: If a
          case: 1) requires an interpretation of federal law and 2) it
          is a “MATTER OF NATIONAL IMPORTANCE”
          the absence of a
          federal CoA is not inevitably fatal to federal JD.


    2. § 1332-Diversity of
      Citizenship; amount in controversy; costs

      1. The district cts. shall
        have original JD of all civil actions where the matter in
        controversy exceeds the sum or value of $75,000, exclusive of
        interests and costs, and is btw.: 1) citizens of different states,
        2) citizens of a State and citizens or subjects of a foreign
        state, 3) citizens of different states and in which citizens or
        subjects of a foreign state are additional parties.

      2. An alien admitted into
        the US for permanent residence shall be deemed a citizen of the
        State in which such alien is domiciled.

        • AFA Tours:
          Ct. must find that the amount in controversy has not been met to
          a LEGAL CERTAINTY

      3. Citizenship is
        determined by domicile at the time the suit is filed.

      4. Citizenship of
        corporation: 1) wherever incorporated, 2) wherever its principal
        place of business. Principal place of business is determined by:


          • The “nerve center”
            test-the locus of corporate decision making authority

          • The “corporate
            activities” test-the location of a corp’s production or
            service activities

          • The total activity
            test: hybrid of above tests which considers all circumstances
            surrounding a corp’s business.


      5. Unincorporated
        associations’ citizenship determined by members.

      6. Injunctive Relief and $
        in Controversy





    • Plaintiff
      viewpoint-only value to P may be used

    • Value from the point of
      the party seeking to invoke Fed. JD

    • Either viewpoint-the
      pecuniary result to either party which the judgment would directly
      produce.

    • In general: Ps can
      aggregate claims against single Ds, unless the Ps’ claims are
      separate and distinct. If there is any single divisible harm, Ps
      may aggregate.





      1. Exceptions: probate
        matters and domestic-relations cases are generally dismissed in
        federal cts. for lack of SMJD. Div. JD was created for suits of a
        civil nature in law or equity.


















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