Mullane v. Central Hanover Bank & Trust Co.

339 U.S. 306 (1950).

Mullane is the appellant, having lost in all courts previously.


Was there sufficient notice according to the due process clause?


“When notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”

In other words, there are going to be some things that do not serve as due process and some things that will as long as it is reasonable.


The statute here was unreasonable, reversed.


This is a complicated issue, but I think I can narrow the facts down enough to make sense.

In this case, there is a collective trust, which is where a lot of people with their own trusts put in to this large collective trust. Think of it as an investment where everyone can benefit from others. However, if there is an issue with a settlement, how does this collective trust notify everyone of the settlement? Well the statutes in play say that publication would suffice and mailing would suffice. The bank in this case followed those procedures and the actions were challenged by Mullane, who is an agent for several out of state beneficiaries.

His claim is that there was not sufficient notice. In other words, the statutes saying that this was sufficient notice is unconstitutional in violation of the due process clause.


Several things to note. First, the court refuses to touch the distinction between in personum and in rem jurisdiction. They say that the holding will be sufficient to satisfy their terms.

Second, there is an interest to the State and the Trust to ensure that the burden of notice is not so extreme. However, there is also a contending interest in the beneficiaries to be given the opportunity to raise objections if they wish. Here, the courts are trying to balance when notice is sufficient.

One way that notice will always be sufficient is through in-person notice.

Another way notice will likely be sufficient is through certified and/or first class mail.

However, things become a little more complicated when it comes to notice in a local newspaper. This can work in rare circumstances. If there is no address for the beneficiary, and no other way of notifying them, then notice could occur in this way. In other words, this is a last resort kind of notice to be used only when necessary. Thus, the statute that said that this would be sufficient for all parties is incorrect and is unconstitutional (notice how statutes need to abide by the Constitution, similar to long-arm statutes).


To simplify, notice takes into consideration the state and the beneficiaries. They want to make sure that every party is treated fairly with an undue burden. Therefore, although there is not a set mechanism for what constitutes as service and what does not, there is some flexibility to take these factors into consideration as long as they are reasonable.

Additional Notes

Central to all the notes below is that the defendant needs to be notified. One way to get out of a default judgment is if the defendant never knew about the lawsuit. In other words, there was no notice so there is no due process (violation of Constitutional right).

The constitutional standard of what counts as service sufficient to be notice varies depending on the circumstances. Here are some of the ways that may be sufficient:

  1. In person (through a processor afterwards providing a certificate of service)
  2. By the mail
  3. Service by publication

Consider this in descending order of preference.

If possible, you should always provide notice in person. This would be reasonable if there is only one or a few people to serve. However, if it is expensive to do so, sending notice through the mail may be sufficient. If there is a lack of information concerning the address or any other contact information, then service by publication may be sufficient.

In Mullane, service by publication was not sufficient because there was a more reasonable way to notify the group of individuals (mail was inexpensive and easy – not burdensome).

Additional Notes

We begin by reviewing the standard procedure up to what we have discussed so far, here are the steps:

  1. File a summons and a complaint (plaintiff)
    • You file the complaint with the court
    • You serve the file stamped copy along with the summons to the defendant.
    • Rule 4m means that you need to serve the defendant within 90 days. As a plaintiff, if service has not been done, then there is a hearing set for why service did not happen yet (could result in a dismiss).
  2. An answer must be filed within 21 days of the moment the defendant has been provided notice through service (defendant’s response).
    • If this is is not filed within the 21 days, the plaintiff will ask for a default judgment. These are calendar days unless if the period of time shows up over a holiday, then the deadline might push an additional day.
  3. Defendants are likely to file a Rule 12(b) Motion to dismiss
    • This can occur before the answer or with the answer (federal and most states), but not after
      • For states that don’t allow you to file a rule 12(b) with your answer, those are called special appearance states. That means that those states require the motion to dismiss to be separate from the answer because an answer is substantive.
    • If you fail to raise these options that could lead to motion to dismiss, then you waive the right to those motions later. 12(b)(2-5) = the disfavored defenses = use them or lose them defenses. The reason why these are use them or lose them is because they are apparent at the beginning of the case.
    • If it is raised before the answer, then you have 10 days left to answer after a judge ruling.

New Stuff – Collateral Attack

This is when the plaintiff files a complaint and the defendant chooses not to file an answer. Why would this happen? Very, very, very emergency circumstances. Here’s an example:

The defendant is in Texas, and sued in Alaska, but all the assets are in Texas. In theory, the defendant could take a default judgment. However, it could be difficult for the plaintiff to collect on the judgment. The plaintiff would have to take that judgement to Texas which would then be litigated in Texas courts. The only defense left here is that there is no jurisdiction.

If the defendants lose in Texas, then they are subject to that judgment.

One thing to note the Constitute requires sister states (neighboring states) to require the judgment.

All in all, don’t do this, but it could work in theory.

Rule 4. Summons

Rule 4(1) The summons needs to contain certain information which can mess things up if it is wrong.

Rule 4(c) The service can be provided by someone who is over 18 years old and must be a nonparty.

Additionally, the defendant must serve the plaintiff with the answer. Everything that is filed with the court must be cc’d to the other party. You cannot talk to the judge without the other side being present.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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