Notice: Service of Process

Notice: Service of Process.—It is not enough that a State be potentially capable of exercising control over persons and property. Before a State can legitimately exercise such power, its jurisdiction must be perfected by an appropriate service of process which is effective to notify all parties of proceedings which may affect their rights.900 Personal service guarantees actual notice of the pendency of a legal action, and has traditionally been deemed necessary in actions styled in personam.901 But less rigorous notice procedures have been accepted, in light of history and of the practical obstacles to providing personal service in every instance, although these procedures do not carry with them the same certainty of actual notice as does personal service.902 But, whether the action be in rem or in personam, there is a constitutional minimum; if it be shown that the mode of notice used was not reasonably calculated to provide the necessary information, its age and history will not sustain it.903

900 "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). "There . . . must be a basis for the defendant's amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant." Omni Capital Int'l v. Rudolph Wolff & Co., 484 U.S. 97 (1987).

901 McDonald v. Mabee, 243 U.S. 90, 92 (1971).

902 Greene v. Lindsey, 456 U.S. 444, 449 (1982) See Dusenbery v. United States, 534 U.S. 161 (2001) (upholding a notice of forfeiture which was delivered by certified mail to the mail-room of a prison where the individual to be served was incarcerated).

903 Thus, in Jones v. Flowers, 547 U.S. 220 (2006), the Court held that, after a state’s certified letter, intended to notify a property owner that his property would be sold unless he satisfied a tax delinquency, was returned by the post office marked “unclaimed,” the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so. In Greene v. Lindsey, 456 U.S. 444 (1982), the Court held that in light of substantial evidence that notices posted on the doors of apartments in a housing project in an eviction proceeding were often torn down by children and others before tenants ever saw them, service by posting did not comport with due process. Without requiring it, the Court observed that the mails provided an efficient and inexpensive means of communication upon which prudent men could rely and that notice by mail would provide a reasonable assurance of notice. Id. at 455. See also Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983) (personal service or notice by mail is required for mortgagee of real property subject to tax sale); Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (notice by mail or other appropriate means to reasonably ascertainable creditors of probated estate).

The use of mail to convey notice, for instance, has become quite established,904 especially for assertion of in personam jurisdiction extraterritorially upon individuals and corporations having "minimum contacts" with a forum State, where various "long-arm" statutes authorize notice by mail.905 Or, in a class action, due process is satisfied by mail notification of out-of-state class members, giving such members the opportunity to "opt out" but with no requirement that inclusion in the class be contingent upon affirmative response.906 Other service devices and substitutions, have been pursued and show some promise of further loosening of the concept of territoriality even while complying with minimum due process standards of notice.907

904 E.g., McGee v. International Life Ins. Co., 355 U.S. 220 (1957); Travelers Health Ass'n ex rel. State Corp. Comm'n, 339 U.S. 643 (1950).

905 See, e.g., G.D. Searle & Co. v. Cohn, 455 U.S. 404, 409-12 (1982) (discussing New Jersey's "long-arm" rule, under which a plaintiff must make every effort to serve process upon someone within the State and then only if "after diligent inquiry and effort personal service cannot be made" within the State, then "service may be made by mailing, by registered or certified mail, return receipt requested, a copy of the summons and complaint to a registered agent for service, or to its principal place of business, or to its registered office."). Cf. Velmohos v. Maren Engineering Corp., 83 N.J. 282, 416 A.2d 372 (1980), vacated and remanded, 455 U.S. 985 (1982).

906 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).

907 E.g., Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954) (authorizing direct action against insurance carrier rather than against the insured).

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