Home/W.D. Kentucky/Owens v. IFP CORPORATION

Owens v. IFP CORPORATION

374 F. Supp. 1032, 1974 U.S. Dist. LEXIS 8883
District Court, W.D. Kentucky·Decided April 22, 1974·No. Civ. A. 7912-A, 7913-A·Published·Cited by 5 cases

Opinion

LIVELY, Circuit Judge.

This three-judge court has been convened to consider plaintiffs’ contention that Rules 3, 4.02 and 4.04 of the Rules of Civil Procedure of the Commonwealth of Kentucky and the civil summons used in the courts of the State violate the Fourteenth Amendment to the Constitution of the United States. They claim that the official Kentucky summons, 1 a copy of which is filed as an appendix hereto, violates due process requirements by failing to give sufficient notice to a defendant of the action against him and the steps he must take to avoid default. They also maintain that Rule 4.04 of the Kentucky Rules of Civil Procedure denies equal protection of the laws by providing that persons served outside the State must be served with a copy of the complaint along with a copy of the summons while only requiring that a copy of the summons be served upon those served within the Commonwealth. It is also contended that the provision of Kentucky Civil Rule 14.01 which requires service of a copy of the complaint along with the summons on a third party defendant is an unconstitutional classification of persons in violation of the equal protection clause. Additional relief in the form of a declaratory judgment and temporary and permanent injunctions was sought in the complaint. The plaintiffs also have requested the court to permit this case to proceed as a class action. We will deal with this request first.

The class which the plaintiffs seek to represent pursuant to Rule 23, Fed.R.Civ.P., is defined by them as “all Kentucky residents who have had or will have default judgments entered against *1034 them in the courts of Kentucky because of their failure to file timely written answers as a result of the Constitutional infirmities and inadequacies of the Summons, and/or the failure to serve the Complaint with the Summons.” No criteria have been suggested by which the court could accurately determine membership in the proposed class. Many default judgments result from the fact that the defendant simply has no defense. Determination of whether a particular default judgment is entered for this reason or for an alleged failure to give adequate notice necessitates an inquiry into the facts of each case. We therefore hold that a class action such as that which plaintiffs seek to bring may not be maintained under Rule 23(b)(1)(B) since adjudications of individual cases would not “as a practical matter be dispositive of the interest of the other members not parties to the adjudications . . . .” The plaintiffs have also joined the justice and recorder of the First Magisterial Court of Jefferson County, the court in which default judgments were entered against them, as representatives of all state civil court judges and clerks in Kentucky. There is no necessity to have a class of defendants representative of such state officers. If the summons and service provisions of the Civil Rules are unconstitutional it necessarily follows that no state court may enter a default judgment in reliance upon them. An adjudication of unconstitutionality by this court would have statewide effect.

Turning to the due process issue we note that Kentucky Civil Rule 4.04(1) requires personal service of a copy of the summons on each defendant or his authorized agent. Each of the plaintiffs acknowledges such service, but maintains that the summons failed to inform her of what she must do to protect her interests. One of the plaintiffs, who has a high school education, stated that she did not realize she was being sued when she was served. The other one stated that she noted that the date of service was more than 20 days after issuance of the summons and assumed it was already too late to defend. Both claimed to have valid defenses. Both eventually telephoned the attorney for the suing creditor, but neither contacted the justice or recorder of the court designated at the top of the summons. It is not claimed that no notice at all was given by the summons, see Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); or that the notice attempted was not reasonably calculated to reach the plaintiffs. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Rather, the infirmity in the Kentucky summons, as claimed by the plaintiffs, consists of a failure to inform them adequately of the nature of the proceedings against them and the requirements of presenting their defenses. Neither Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972) nor Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956) is controlling. In both of these cases the Supreme Court based its decision on a finding that the party who caused process to be served knew that the person served, because of the particular facts of the case, would not in fact thereby have notice of the action. There is no claim that defendant I.F.P. Corporation knew of any reason why personal service on these plaintiffs would fail to give them notice of the proceedings against them.

The Supreme Court defined the quality of notice required by due process in Mullane v. Central Hanover Trust Co., supra, as follows:

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. . The notice must be of such nature as reasonably to convey the required information, . . . and it must afford a reasonable time for those interested to make their appear *1035 anee .... But if with due regard for the practicalities and peculiarities of the ease these conditions are reasonably met, the constitutional requirements are satisfied. 339 U.S. at 314-315, 70 S.Ct. at 657. (Citations omitted).

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Owens v. IFP CORPORATION, 374 F. Supp. 1032, 1974 U.S. Dist. LEXIS 8883 (W.D. Ky. 1974).

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