Re: poor lawyer -- can you answer definitively (more or less)?

Posted by poor lawyer (24.199.187.22) on August 20, 2002 at 09:40:09:

In Reply to: poor lawyer -- can you answer definitively (more or less)? posted by lucy on August 20, 2002 at 07:36:35:

OK, where to begin . . .

First, it can be very tricky to determine whether or not there is personal jurisdiction. Sometimes there is personal jurisdiction when you've never even set foot in that state; other times you could be there for some time and there still wouldn't be personal jurisdiction. There are a number of factors involved.

Second, if you are sued in a state and you don't think they have personal jurisdiction, there are two ways to go about this. One, you can challenge jurisdiction directly. To do this you need to file a Motion to Dismiss for Lack of Personal Jurisdiction. DO NOT FILE AN ANSWER. Do not countersure. Do not raise any other defenses. If you do any of those things, then you are waiving personal jurisdiction, because you are asking the court to decide something other than personal jurisdiction. That will be construed as your waiver to allow the court to make decisions affecting you, i.e. to allow the court to exert its jurisdiction over you. As long as the only thing you are doing is challenging personal jurisdiction, then it is not a waiver. (Be sure to state in your Motion that you are "appearing specially for the limited purpose of challenging personal jurisdiction." Let the court know that it is not being wavied.)

Generally, a defendant cannot collect damages without countersuing. There are instances where a defendant could get some damages, but this would be based on statute. Usually, the most a defendant can hope to get out of a case in which they are not countersuing would be a dismissal and costs plus attorneys fees.

I've never heard of a judge ordering a plaintiff to pay travel expenses. I'm not saying its not possible, I don't know, I've just never seen it done. I suppose a judge could do that though.

Do not file any ex parte motions. They will be disregarded. Ex parte motions are only appropriate in very specific circumstances where there is an immediate threat of irreversible damage. This is not one of those situations.

("En banc" usually means a full panel of judges. For example, a federal Circuit Court of Appeals normally hears cases in fron to of a panel of 3 judges. Sometimes after a panel has decided a case, the court will want to review it "en banc." That means it is reheard before all the judges on the court, not just a panel. I guess that "en banc" would also mean "from the bench" but I've never heard it used that way to describe a bench trial.)

A defendant has the right to review all evidence submitted to the court. If you move to dismiss for lack of personal jurisdiction, you would have the right to review such evidence prior to the hearing. It would depend on the local rules though exactly when they would have to let you see it.

It is standard procedure to ask for dismissal with prejudice. Its usually up to the court to decide if it is to be with or without prejudice.

Parties do not receive transcripts automatically. You have to request a transcript from the court or the court reporter, and it will cost money for the copies.

All evidence submitted is retained by the court until a final disposition and until there is no chance for appeal. "Paper" evidence may or may not be included in a transcript, it depends on the way that court and that court reporter operate.

Just to make sure, if challenging personal jurisdiction be sure that it is the only thing you are doing. File the Motion within the time allowed to file an Answer. Do not file an Answer until the motion is decided against you. Then in your Answer you can raise all the defenses and countersuits you want. Also, stay out of sight while you are in the other state for the court hearing. If you get personally served within a state, then that state has jurisdiction over you. Different states have different rules about whether a defendant can be personally served in the forum state while appearing specially to challenge personal jurisdiction. But be sure to just avoid getting personally served while in the state.

There is another way to challenge personal jurisdiction, and that is to "collatarelly attack" it. This is done by not submitting any answer, motion or response, and letting the other court enter a default judgment. Then if the judgment creditor comes to your state to enforce the judgment, you can challenge the judgment in court, in the state they are trying to enforce it, based solely on personal jurisdiction. The court will not entertain any other defenses or countersuits, it will only question whether or not the other court had personal jurisdiction. This is a very risky approach to take though.

Please please please consult an attorney if you are going to challenge personal jurisdiction. Like I said, it is a very complex question that involves a number of different factors. An attorney familiar with your factual situation can better advise you on how to proceed.

poor lawyer, esq.

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