Did have to present evidence? Is evidence presented of sufficient quality? Π Filing party not knowing facts; Debt evidence) – Mitchell – Clerk/judicial officer? (Di-Chem Clerk; Judge) Mitchell – – Bond/security? (Mitchell Bond) – Interest of with due regard for interest gov may have for safeguards Π Exigent Circumstances? (Fuentes need important Gov/Pub interest, or need for – prompt action) facts that show attachment is unnecessary or could be done in a better way? Attachment NO – Policies against pre-hearing attachment Fuentes v. Shevin – is deprived of property without notice or opportunity to be Δ No notice Temporary deprivation of property is deprivation Exceptions Necessary to secure important government or public interest Special need for prompt action State keeps a monopoly over these exceptions Garnishment of bank account Di-Chem – Only conclusory allegations poor documentation – Issuable by No protection against initial error No hearing for to show probable cause Π has no specific interest in account Π Attached house after fist fight Connecticut v. Doehr – Adapted Matthews balancing test Private interest affected Risk of erroneous deprivation and value of added safeguards Interest of the party seeking the remedy and due regard for the interest the gov. may have in additional safeguards Attachment YES – Requirements for legal pre-hearing attachment statute Mitchel v. WT Grant Co. – Acceptable attachment in debtor/creditor relationship ex parte Showing before judge can seek immediate dissolution via post-deprivation hearing Δ must post bond for value of goods Π What showing at pre-judgment? Evidence? Does the party seeking attachment have an interest in the attached property? Temporary restraining orders Federal Rule 65(b)(1) – TRO for 10d during which a hearing to grant preliminary injunction 65(b)(2) – takes place; P.I. can last til final judgment.
Did Π have to present evidence? Is evidence presented of sufficient quality? – Filing party not knowing facts; Mitchell – Debt evidence) Clerk/judicial officer? (Di-Chem – Clerk; Mitchell – Judge) Bond/security? (Mitchell – Bond) Interest of Π with due regard for interest gov may have for safeguards Exigent Circumstances? (Fuentes – need important Gov/Pub interest, or need for prompt action) facts that show attachment is unnecessary or could be done in a better way? Attachment – NO Fuentes v. Shevin – Policies against pre-hearing attachment Δ is deprived of property without notice or opportunity to be No notice Temporary deprivation of property is deprivation Exceptions Necessary to secure important government or public interest Special need for prompt action State keeps a monopoly over these exceptions Di-Chem – Garnishment of bank account Only conclusory allegations – poor documentation Issuable by No protection against initial error No hearing for Π to show probable cause Π has no specific interest in account Connecticut v. Doehr – Attached house after fist fight Adapted Matthews balancing test Private interest affected Risk of erroneous deprivation and value of added safeguards Interest of the party seeking the remedy and due regard for the interest the gov. may have in additional safeguards Attachment – YES Mitchel v. WT Grant Co. – Requirements for legal pre-hearing attachment statute Acceptable ex parte attachment in debtor/creditor relationship Showing before judge Δ can seek immediate dissolution via post-deprivation hearing Π must post bond for value of goods What showing at pre-judgment? Evidence? Does the party seeking attachment have an interest in the attached property? Federal Rule 65(b)(1) – Temporary restraining orders 65(b)(2) – TRO for 10d during which a hearing to grant preliminary injunction takes place; P.I. can last til final judgment.
CivPro_McKenzie_Fall_2011.docx