03-06-2006, 06:43 AM
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The Outta Commissiona
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ROY v. SUPERIOR COURT
California Court of Appeal, Fourth District, 2005.
127 Cal.App.4th 337, 25 Cal.Rptr.3d 488.
MCKINSTER, ACTING P.J.
*
This is a routine breach of contract and fraud action brought by Lucky Star, Inc.(as assignee) against an Illinois corporation, Audio Source, Inc., and several of its officers/directors/shareholders, Stanley Roy, Michael Roy and Janice Roy (the Roys) and Janice Quinn. The gravamen of the complaint is Audio Source's failure to pay for goods.
*
Lucky Star filed its action * * * [and] defendants filed a joint answer in which they asserted 24 affirmative defenses, of which the sixth was "The court lacks jurisdiction over these answering defendants because the acts complained of occurred outside of the State of California, these answering defendants are not residents of the Statement [sic ] of California and there was [sic ] no contacts with the State of California to give the court jurisdiction over these answering defendants."
*
Defendants did not, however, immediately act on their assertion of this purported defense. Instead, they proceeded to actively participate in the litigation. They filed a case management statement and attended conferences; they propounded discovery and filed numerous motions to compel when satisfactory responses were not received; they requested various continuances; and they filed a motion for summary judgment.
*
Finally, just prior to the scheduled hearing on the latter motion (which was
eventually vacated), the individual defendants filed a motion to dismiss for lack of
personal jurisdiction.1 After hearing argument and conducting its own research, the trial court denied the motion on the basis that by filing an answer and participating in the litigation, defendants had all submitted to California's jurisdiction.
*
This petition followed on behalf of the Roys and Janice Quinn. They argue that under Code of Civil Procedure section 418.10, subdivision (e), as amended in 2002, they followed proper procedure and there was no submission to jurisdiction or waiver of the jurisdictional defect. For reasons that follow, we conclude that the trial court was right and that the motion was properly denied.
*
DISCUSSION
*
As the trial court recognized, it has long been the rule in California that a party waives any objection to the court's exercise of personal jurisdiction when the party makes a general appearance in the action. An answer, of course, is such an appearance, as is
1 Given our resolution of the issue before us, it is unnecessary to consider the substantive merits of the motion.
*
*
expressly made clear by section 1014: "A defendant appears in an action when the
defendant answers, demurs, [or] files a notice of motion to strike...." * * *
*
It is therefore beyond dispute that defendants would have properly been held to have waived any jurisdictional defect under the law as it was in effect before January 1, 2003. However, defendants rely on amendments made to section 418.10 and effective that date to support their argument that the jurisdictional objection was preserved.
*
Section 418.10 governs the procedure for making a motion to quash service or dismiss or stay an action on the basis of lack of jurisdiction or inconvenient forum. Subdivision (e), added in 2002, provides that, "A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint." It further provides that "no act" by a party making a motion under the statute, "including filing an answer, demurrer, or motion to strike," shall be deemed a general appearance. Plainly, this abolishes the old rule to that extent.
*
Finally, subdivision (e)(3) of section 418.10 states that "[f]ailure to make a
motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issue[ ] of lack of personal jurisdiction...." (Italics added.) It is this latter provision upon which defendants particularly rely. Tacitly applying the doctrine inclusio unius est exclusio alterius (the inclusion of one is the exclusion of another), they argue that although the statute provides for a waiver of objections for a defendant who files either a demurrer or motion to strike without a concurrent motion to quash or dismiss, it implicitly preserves the objection for a defendant who answers, even if he does not simultaneously challenge jurisdiction by motion.
*
Both sides have supplied legislative history materials of which we have taken judicial notice. It is apparent that the intent behind the amendments to section 418.10 was to simplify procedures and reduce the risk of an inadvertent submission to jurisdiction. For example, the Senate Judiciary Committee analysis for the April 2, 2002, hearing on Senate Bill No. 1325 comments that "current California law on special and general appearances 'is a quagmire filled with traps for the unwary.' "4 The report refers to federal practice under Federal Rules of Civil Procedure, rule 12(b), and notes that the proposed bill would "conform California procedure to federal procedure." This understanding–that section 418.10 would follow federal rule 12(b)–is also expressly stated in section 2 of
Statutes 2002, chapter 69 (S.B.1325).
*
The question is, to what extent has California practice been conformed to federal? The answer requires a brief analysis of procedure under rule 12(b) and otherwise. The rule requires that, "Every defense ... shall be asserted in the responsive pleading ... except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6)
*
4 In addition to the cases noted previously, it had also been held that merely asking the court for the continuance of a hearing constituted a "general appearance" even where the party has filed a motion to quash service.
*
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failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19."5 Such a motion is to be*made "before pleading if a further pleading is permitted." The rule also clarifies that, "No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion."
*
Thus, under rule 12(b), a defendant may raise objections to personal jurisdiction along with any other defenses without being deemed to have waived the jurisdictional objection. A defendant may also choose to proceed by motion before answering, or simply to state lack of personal jurisdiction in his responsive pleading as a defense.
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Originally Posted by Jerry Pitts
The whole system is based upon a 'presumption' that something was represented to have occurred which may or may not have occurred in the manner which has been represented.
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When the going gets weird, the weird turn pro - Hunter S. Thompson
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03-06-2006, 06:44 AM
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The Outta Commissiona
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Join Date: Oct 2004
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But federal practice then diverges critically from that which has traditionally been followed in California. When a California defendant moves to quash service for lack of personal jurisdiction, the burden is on the plaintiff to establish jurisdiction by a preponderance of the evidence. By contrast, when a defendant in federal court raises the jurisdictional objection by motion, the plaintiff can defeat it with no more than a prima facie showing. If the issue is actually tried, however, the federal court plaintiff bears a burden of proof similar to that applied in California. Under this scheme, a defendant who unsuccessfully moves to dismiss at an early stage may raise the issue again at trial, when it will be re-examined in light of all the evidence and the plaintiff will bear the burden of proof.
*
It should be apparent that federal practice with respect to challenges to personal jurisdiction is very different from established California procedure. With all due respect, it is difficult to see the advantage in a scheme which permits a defendant to withhold his jurisdictional challenge essentially until trial, and this matter may in fact be considered a "poster case" against such a scheme.6 Defendants "buried" their jurisdictional challenge in the middle of literally dozens of mostly-boilerplate "defenses." They proceeded to vigorously, and no doubt expensively, litigate the action, which generated the filing of numerous motions and many appearances, and twice proceeded to the point of setting a trial date. Only then did defendants bring their jurisdictional objection up for actual review and decision, and thereby creating the very real possibility that much or even all
of the previous activity would have been wasted.
5 Not all of these "defenses" would be classified as such in California, which generally restricts the term to substantive resistance to a complaint. Typical of "defenses" are lack of consideration, duress, privilege, and estoppel. Witkin does recognize lack of subject matter jurisdiction as a "defense," but says nothing about personal jurisdiction in this respect. (2 Witkin, Cal. Procedure, Jurisdiction, § 387, pp. 990-991.) The absence of cases reflecting the litigation of personal jurisdiction as a "defense" strongly suggests that the motion procedure established by section 418.10 has been understood to be exclusive.
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6 Not all of these "defenses" would be classified as such in California, which generally restricts the term to substantive resistance to a complaint. Typical of "defenses" are lack of consideration, duress, privilege, and estoppel. Witkin does recognize lack of subject matter jurisdiction as a "defense," but says nothing about personal jurisdiction in this respect. (2 Witkin, Cal. Procedure, Jurisdiction, § 387, pp. 990-991.) The absence of cases reflecting the litigation of personal jurisdiction as a "defense" strongly suggests that the motion procedure established by section 418.10 has been understood to be exclusive.
*
In our view, by requiring that the issue of jurisdiction be raised and finally
resolved at an early stage,a California's historical approach serves the interests of all parties and of the courts. Accordingly, we are reluctant to attribute to the Legislature an intent to alter this sensible and effective procedure. It is necessary, however, to examine the new language of section 418.10, specifically subdivision (e)(3), and determine whether the omission of "answer" from the latter subdivision does reflect a clear intention that lack of jurisdiction is not waived if asserted in the answer, even if no motion to dismiss is made at that time.
*
As noted above, it is clear that a defendant who demurs or moves to strike must concurrently move to quash or dismiss, or any jurisdictional defect is waived. Why did the Legislature not include an answer as one of the documents which must be accompanied by a motion to quash if the jurisdictional objection is to be preserved?
*
* * * Lucky Star suggests that the focus should not be on the document omitted from subdivision (e), but on the documents included. The reasoning is as follows: the subdivision begins by allowing a defendant to include a motion to quash along with a demurrer, motion to strike, or answer. However, a demurrer or motion to strike is typically filed before the answer, and an answer is only filed if the demurrer or motion to strike is unsuccessful. Section 418.10, subdivision (e)(3) merely cautions that a defendant who chooses to demur or move to strike must also move to quash; he cannot reserve the jurisdictional objection and later file it with his answer if his challenge to the pleadings fails.
*
We believe that this interpretation is correct and that the effect of section 418.10, subdivision (e)(3) is so limited. First, it avoids the startling consequence of establishing an entire set of new procedures sub silentio, as it were, and the implied invalidation of literally decades of established practice. Secondly, it serves the cause of judicial economy by confirming the defendant's obligation to raise the jurisdictional defect at the first possible instance, because all other objections become moot if the motion to quash is granted.
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We are not persuaded by defendants' arguments to the contrary. The contention that judicial economy would in fact be served by a rule that would permit a defendant to withhold his jurisdictional challenge until he could confirm its validity through investigation is without merit. Of all issues, whether a state has personal jurisdiction over a defendant is the one most uniquely within his own knowledge. He knows where he lives and he knows what business he has done in the forum state. To the extent that discovery may be necessary, it is typically the plaintiff who needs to gather information supporting jurisdiction.8 9 Furthermore, the point that the Legislature specifically
a California’s early finality regarding personal jurisdiction includes the requirement to seek immediate appellate review, as opposed to the federal option of post-judgment appeal. See casebook, p.177 (last paragraph).
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8 And, as noted above, it is the plaintiff's burden in California to establish jurisdiction. A defendant who really needs additional time in which to support his motion may apply to the court for an extension. (§
*
intended to preserve the jurisdictional objection for later determination is not well taken. Under the express provisions of section 418.10, subdivision (e), a challenge to personal jurisdiction is waived if a defendant demurs or moves to strike without concurrently moving to quash. This being so, it cannot be contended that the Legislature was particularly concerned to allow defendants additional time to study the issues of jurisdiction. We can see no reason why–as would be the result under defendants' position–defendants who answer without demurring or moving to strike would be the only defendants permitted to make a belated challenge to jurisdiction. * * * Subdivision
(e)(1) of section 418.10 protects a defendant who moves to quash by providing that "no act " by that party shall constitute a general appearance. Nothing could be clearer: a defendant may move to quash coupled with any other action without being deemed to have submitted to the court's jurisdiction. However, the motion to quash remains essential.
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Our review of the legislative history materials has failed to uncover any reference to an intent to preserve a defendant's right to challenge personal jurisdiction through the time of trial. We do not accept defendants' argument that the references to conforming California practice with federal practice should be interpreted in such a way. Unlike federal rule 12(b), section 418.10 does not give the defendant an option to plead lack of jurisdiction as a defense and reserve determination of the issue until as late as trial. The statute continues to prescribe the motion to quash as the means of challenging personal jurisdiction and does not in any way imply the existence of an alternative. The defendant may move to quash and simultaneously file an answer containing affirmative defenses, but the latter is not a substitute for the former. The answer remains solely the vehicle by which a defendant may assert [substantive] defenses to the action, not to jurisdiction.
*
We recognize that the statutory language is not as clear as it might be, but we consider our construction compelled by long precedent and common sense.
*
The trial court correctly denied the motion to quash. Accordingly, the petition for writ of mandate is denied. The stay of proceedings previously ordered is dissolved. Real party to recover its costs.
418.10, subd. (a): " ... on or before the last day of his or her time to plead, or within any further time that the court may for good cause allow.... " Italics added.)
9 If a defendant does need to engage in such discovery, he may do so without being deemed to have made a general appearance.
*
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Quote:
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Originally Posted by Jerry Pitts
The whole system is based upon a 'presumption' that something was represented to have occurred which may or may not have occurred in the manner which has been represented.
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When the going gets weird, the weird turn pro - Hunter S. Thompson
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03-06-2006, 12:31 PM
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P 1
I am glad this discussion got re-opened, and grateful for the new info.
Weiss's post seems to point out the importance of dealing with jurisdiction immediately, and that successfully quashing, or otherwise defeating/denying in personam jurisdiction is the first and primary concern.
I thought this might be worth re-posting with all the links active, in the hopes that people will read all the links.
Sometimes people seem to rely on court cites without reading the whole case, and this can lead to all kinds of problems.
The Supreme Court Case link will also provide links to the cases quoted in the cases themselves.
Quote:
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Originally Posted by mrg
This is edited from the link given by Weiss at the top of the thread, and is very good, and I thought should be put here.
It is laid out differently, and edited a little for clarity.
In Personam Jurisdiction
By Craig Smith:
Jurisdiction refers to the power of the court to decide a case, ie., to render a decision that will be recognized and enforced by authorities and other courts.
Jurisdiction is of two types: Subject matter jurisdiction and jurisdiction over the parties.
A court must have both types of jurisdiction before it has jurisdiction to decide the case.
Jurisdiction Over Persons or Things
In personam, (or personal jurisdiction) is the power of a court to adjudicate the personal legal rights of parties properly brought before it.
Requires that the court not only have jurisdiction over the subject matter of the action, but also that it have jurisdiction over each party to the action.
Due process of law requires appearance or service of process (notice of pendency of the lawsuit) before the defendant can be personally bound by any judgment.
A person is subject to in personam jurisdiction on any of the following theories:
(1) Presence, i.e., being served with a copy of the summons and complaint while physically present in the forum jurisdiction. The physical presence of a defendant in the forum is a sufficient basis for acquiring jurisdiction over him, no matter how brief his stay might be. (Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L.Ed. 565 (1877).
http://www.justia.us/us/95/714/case.html
(2) Domicile (residence) alone is a basis for exercising jurisdiction over an absent domiciliary. (Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).)
http://www.justia.us/us/311/457/case.html
I.e., a person may always be sued for all claims, regardless of where they arise, in their state of permanent residence or in the case of a corporation, the state in which it is incorporated.
(3) Consent to personal jurisdiction.
A defendant who has not been personally served in the jurisdiction can nevertheless voluntarily appear and submit himself to jurisdiction.
In such cases defendant is said to have "consented" to jurisdiction.
Can consent be obtained in advance of any lawsuit being filed?
Can consent be implied?
Hess v. Palowski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927) says yes.
http://www.justia.us/us/274/352/case.html
A state can legislate that a nonresident motorist using its highways be deemed to have appointed a local official as his agent to receive service of process in any action growing out of the use of the vehicle within the state.
However, the state must provide actual notice to the nonresident defendant.
(4) Minimum Contacts.
Having sufficient dealings or affiliations with the forum jurisdiction which make it reasonable to require the defendant to defend a lawsuit brought in the forum state. (Int'l Shoe)
Hence, a defendant who has never set foot in California may nevertheless be subject to valid personal jurisdiction so as to be compelled to defend a lawsuit in California provided that he has minimum contacts with the forum state such that compelling him to appear and defend in the forum does not offend traditional notions of fair play and substantial justice. (International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).)
http://www.justia.us/us/326/310/case.html
I.e., the due process clause does not permit a state to exercise personal jurisdiction over an individual or corporation with which the state has no contacts, ties or relations.
Minimum Contacts - The Four Principles of International Shoe
1) Jurisdiction is permissible when the defendant's activity in the forum is continuous and systematic and the cause of action is related to that activity.
2) Sporadic or casual activity of the defendant in the forum does not justify assertion of jurisdiction on a cause of action unrelated to that forum activity.
3) A court may assert jurisdiction over a defendant whose continuous activities in the forum are unrelated to the cause of action sued upon when the defendant's contacts are sufficiently substantial and of such a nature as to make the state's assertion of jurisdiction reasonable. ("general jurisdiction")
4) Even a defendant whose activity in the forum is sporadic, or consists only of a single act, may be subject to the jurisdiction of the forum's courts when the cause of action arises out of that activity or act. ["specific jurisdiction"] (Friedenthal § 3.10)
Helicopteros Nationales De Colombia, S.A. v. Hall, 466 U.S. 408, (1984) recognizes a distinction between "general" and "specific" jurisdiction.
http://www.justia.us/us/466/408/case.html
In order to assert general jurisdiction there must be substantial forum related activity on the part of the defendant.
The threshold for satisfying minimum contacts is higher than in specific jurisdiction cases. (Friedenthal 3.10)
Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed. 1283 (1958)
http://www.justia.us/us/357/235/case.html
held that the "minimum contacts" a defendant must have with the forum state must be in the form of a purposeful affiliation on the part of the defendant.
I.e., jurisdiction is impermissible where the defendant's contact with the forum is not purposeful. (Friedenthal § 3.10)
"Long -arm" statutes (a reference to the authorization to "reach out" beyond the borders of a state) predicate jurisdiction over nonresidents upon a variety of contacts with the forum, including the transaction of business in the state, the commission of certain acts within the state, e.g., the commission of a tort, ownership of property, entering into a contract. (Friedenthal § 3.12)
California's long-arm statute is short and simple, yet it authorizes the exercise of personal jurisdiction to the broadest extent that due process will permit as set forth in the International Shoe, supra, case.
A court may also take jurisdiction over a thing as opposed to a person.
In rem jurisdiction is the power of a court to deal with a thing (e.g. a parcel of land, an automobile, a ship) and to determine its status in relation to the legal rights of all persons known and unknown.
I.e., in a proceeding in rem the court exercises its power to determine the status of property and the determination of the court is binding with respect to all possible interest holders in that property.
Quasi-in-rem jurisdiction is similar to in rem.
In a proceeding quasi-in-rem, the court renders a judgment for or against a person but recovery is limited to the value of property that is within the jurisdiction and thus subject to the court's authority.
The dispute that gives rise to an action quasi-in-rem may be related to the property or unrelated to it.
In an action quasi-in-rem, the property may be used to satisfy any judgment in the action.
The Int'l. Shoe standards of fairness and substantial justice that govern in personam actions are applicable to in rem actions as well . (Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)
http://www.justia.us/us/433/186/case.html |
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03-06-2006, 12:37 PM
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P 2
The links to the Federal Rules of Civil Procedure, and the USC have been added.
Quote:
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Originally Posted by mrg
Challenging Jurisdiction continued
By making an "appearance" in response to a lawsuit a defendant is in effect submitting to the jurisdiction of the court and waiving any defects, if any, in personal jurisdiction.
In most states a defendant who wishes to challenge jurisdiction may do so by making a special appearance which is limited to the issue of jurisdiction. (See, e.g., Cal.Code.Civ.Proc. § 418.10)
If he or she raises any other issues or claims he has made a general appearance and waives any defects in jurisdiction.
In federal courts no special appearance is necessary.
Jurisdiction may be challenged in a FRCP 12(b) motion or included as a defense in the answer.
http://www.lexisnexis.com/lawschool/.../frcp02.htm#12
(Rule 12(b) also refers to FRCP 19 & 56)
FRCP 19 Joinder of Persons Needed for Just Adjudication
http://www.lexisnexis.com/lawschool/.../frcp02.htm#19
FRCP 56 Summary Judgement
http://www.lexisnexis.com/lawschool/.../frcp04.htm#56
How to Analyze a Personal Jurisdiction Issue
1. Does a statute (long-arm-statute) purport to authorize the exercise of personal jurisdiction?
If answer is "no" then end of analysis.
No personal jurisdiction can be asserted.
If the answer is "yes" then;
2. Does the statute go beyond the constitutional limits of due process set forth in International Shoe?
If "yes" then no personal jurisdiction.
If "no" then personal jurisdiction can be constitutionally asserted.
The Requirement of Notice
The existence of personal jurisdiction depends upon a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum and the giving of reasonable notice to the defendant that an action has been brought.
If the defendant has not received proper notice, the court's power to adjudicate is imperfect.
Notice is usually given by serving the defendant with the "process" (e.g. a copy of the summons and the complaint) of the court.
Service of process is governed by FRCP 4.
FRCP 4 Summons
http://www.lexisnexis.com/lawschool/...b/frcp01.htm#4
The three methods of serving process are
1. personal service,
2. substituted service, and
3. constructive service.
Due process does not require that the defendant be served personally however, notice "reasonably certain" to reach the defendant is required.
I.e., Notice must be reasonably calculated under all the circumstances to apprise the defendant of the pendency of the action. (Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).)
http://www.justia.us/us/339/306/case.html
How to analyze the issue of whether the notice given is valid
1. Is there a statute which authorizes this particular method of notice?
2. If so, does the statute meet the minimum constitutional requirements?
Attacking Notice
Defective service of process can be challenged by a FRCP 12(b)(5) (defective service of process) motion to dismiss or the objection can be made in the answer.
Defective service of process goes to lack of notice.
Due process requires notice and an opportunity to be heard.
FRCP 12
http://www.lexisnexis.com/lawschool/.../frcp02.htm#12
Venue
If jurisdiction determines what state a suit can be brought in, venue determines what county or judicial district it may be brought in.
The purpose of venue rules is to limit the plaintiff's choice of forum in order to insure that the locality of the lawsuit has some logical relationship to the litigants or the subject matter of the dispute.
Venue, unlike subject matter jurisdiction, may be waived.
Stated another way, the distinction is this:
jurisdiction is the power to adjudicate,
venue relates to the place where judicial authority may be exercised and is intended for the convenience of the litigants.
(Wright, § 42) 28 U.S.C. § 1391 Summarized: In diversity actions, venue is proper in the district all defendants reside if all the defendants reside in the same state, or in the district in which the claim arose, or, alternatively, where any of the defendants may be found.
28 U.S.C. § 1391 Venue generally
http://www.law.cornell.edu/uscode/ht...1----000-.html
In federal question cases there is no plaintiff's venue.
The action may be brought only in the district where all defendants reside or the district in which the claim arose.
Transfer or Change of Venue and Forum Non Conveniens
This doctrine permits a court having jurisdiction over an action to refuse to exercise its jurisdiction when the litigation could be brought more appropriately in another forum. (Friedenthal, § 2.17)
28 U.S.C. § 1406(a) provides that if a civil action is commenced in the wrong district or division, the court shall dismiss, but if it is in the interest of justice, the court may instead transfer the case to any district or division in which it could have been brought.
28 U.S.C. § 1406(a) Cure or waiver of defects
http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001404----000-.html
Transfer is preferable to dismissal since it avoids the necessity of commencing a new lawsuit.
Transfer can be ordered only if the court in which the action was brought has jurisdiction of the subject matter but it is not necessary that it have personal jurisdiction.
28 U.S.C. § 1404(a) states: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
28 U.S.C. § 1404(a) Change of venue
http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001401----000-.html
Under the rule of " forum non conveniens" a court can dismiss a suit even though it has both personal and subject matter jurisdiction and the venue is properly laid if there exists another forum so much more convenient for the parties and the courts that plaintiff's privilege of choosing his forum was outweighed.
The enactment of 1404(a) means that it is now only in rare instances where the alternative forum is a state court or the court of a foreign country may the federal court dismiss on grounds of forum non conveniens.
Procedure for Transfer under section 1404(a)
Motion for transfer may be made by any party, including the plaintiff.
Motion may be made at any time though delay in moving is a factor that will be considered in passing on the motion.
Once the motion is granted the transferor court loses all jurisdiction over the case.
If the transfer is on motion of the defendant, the transferee court must apply the law that would have been applied in the transferor court; a change in forum means only a change of courtrooms but not a change of law.
This means that in passing on the motion to transfer the court must consider the effect that retaining the law of the transferor state will have. (E.g., if law is unclear in transferor state that would militate against transfer.) (Wright, § 44)
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Last edited by mrg : 02-21-2007 at 05:12 PM.
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03-11-2006, 10:02 AM
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Each of the outlines below has its own unique value:
Civil Procedure Outline.
http://64.233.179.104/search?q=cache...ient=firefox-a
Civil Procedure Outline- Danny Andersen
(Shows how to challenge, discusses Erie)
http://64.233.179.104/search?q=cache...ient=firefox-a
CIVIL PROCEDURE OUTLINE
http://currentstudents.law.miami.edu...s/civ_pro.html
Civil Procedure Outline (No. 1)
http://www.lawyerware.com/outline-civpro1.html
Civil Procedure Outline
Professor Drobak, Spring 2002
PERSONAL JURISDICTION
http://law.wustl.edu/Organizations/S...ineDrobak3.htm
Civil Procedure Outline
(Discusses lots of cases)
http://lawschool.mikeshecket.com/civ...ureoutline.htm
US Supreme Court Center > US Constitution >
In Personam Proceedings Against Individuals
http://www.justia.us/constitution/am...-personam.html
Jurisdiction: A Prerequisite to Enforcement of Judgments
http://law.onecle.com/constitution/a...forcement.html
Some Definitions from a Law Course
http://64.233.179.104/search?q=cache...ient=firefox-a
RUSH v. SAVCHUK, 444 U.S. 320 (1980)
http://www.justia.us/us/444/320/case.html
Shaffer v. Heitner, 433 U.S. 186 (1977) (summary)
http://www.lex2k.org/jurisdiction/shaffer.html
Shaffer v. Heitner, 433 U.S. 186 (1977)
http://www.justia.us/us/433/186/case.html
World-Wide Volkswagen, 444 U.S. at 295
http://www.justia.us/us/444/286/case.html
Supreme Court of Alabama
Ex parte Georgia Farm Bureau Mutual Automobile Insurance Company
PETITION FOR WRIT OF MANDAMUS
In re: Donald Johnson and Cynthia Johnson
v.
Georgia Farm Bureau Mutual Automobile Insurance Company
http://64.233.179.104/search?q=cache...ient=firefox-a
MASTER FINANCIAL, INC.,
Petitioner,
v.
THE HONORABLE R. JEFFREY WOODBURN,
Commissioner of the SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for the
County of MARICOPA,
Respondent Judge,
MICHAEL L. HILLMAN,
Real Party in Interest.
(Plaintiff service by publication upheld, but spells out Defendant remedy)
http://64.233.179.104/search?q=cache...ient=firefox-a
Wilkinson v Wilkinson
NO. COA01-269
NORTH CAROLINA COURT OF APPEALS
Filed: 5 March 2002
(A good ruling and a good example of how a good ruling gets buried by not being “published.”)
http://www.aoc.state.nc.us/www/publi...b/010269-1.htm
SOME INTERESTING BOVINE SCATOLOGY:
"Motion to quash due to plaintiff’s decision to not prosecute this case and depriving the court of subject matter and in personam jurisdiction verified facts in support of motion; Points and authorities;"
http://www.commonlawvenue.com/Misc/0...dPlumbCase.doc.
Brief: North Carolina v. John Charles Ainsworth
http://64.233.179.104/search?q=cache... ent=firefox-a
Response to Plaintiff's Response to Defendant's Petition to Show Cause
THORNTON MUNICIPAL COURT, COUNTY OF
ADAMS, STATE OF COLORADO
http://www.stanley2002.org/courtcase...topetition.htm
TWENTY-SIXTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
In The Matter of:
STATE OF NORTH CAROLINA
v
John Charles Ainsworth
http://www.ncrepublic.org/ModifiedAppealBrief.html
LUBOMYR PRYTULAK
Petitioner
— v —
THE SUPERIOR COURT
OF LOS ANGELES COUNTY
Respondent
STEVEN RAMBAM
(aka STEVEN ROMBOM),
Real Party in Interest
http://www.ukar.org/temp/a-2003-08-09.html
The "Appearance" trap
http://www.peoples-rights.com/the.htm
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03-31-2006, 09:17 PM
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Seven Elements of Jurisdiction
I found this post, and thought it should be put in this thread.
I edited it, and added links to the cases
Posted by: PJTO4 11-01-04
I FOUND THIS ARTICLE ABOUT IRS LACK OF JURISDICTION THAT MIGHT BE WORTH ANALYZING.
SEVEN ELEMENTS OF JURISDICTION
In order for any government agency, subsidiary or law to be applied to an individual American Citizen, it must be first proved or assumed that the government has jurisdiction in this matter over that particular individual for that time.
Specifically, before an individual can be charged and convicted with a crime, the government official or agency must prove jurisdiction.
This is seldom accomplished, and many individuals lose a case and even go to jail when no one has proved this legally essential issue.
No where is this more common than in Internal Revenue Service cases against so-called tax protesters.
The IRS almost never attempts to prove jurisdiction.
In fact, jurisdiction is almost never even addressed.
If the individual is correct in his/her claims that he/she is not a taxpayer as defined in the Internal Revenue Code, then the IRS HAS NO JURISDICTION!
With no jurisdiction comes no case and no conviction!
But to win, jurisdiction MUST be challenged by the individual, and if challenged successfully, the case is dismissed.
There are seven elements of jurisdiction, all of which must be proved by the prosecution if challenged.
If not challenged, it will ALWAYS be assumed by the court that competent jurisdiction is proved and accepted by all parties.
If any element of the seven is not proved, the case must be dismissed.
The normal process in a case against a so-called tax protester is to ignore the jurisdiction issue altogether, or else to challenge jurisdiction while at the same time conforming to procedures and requirements that assume jurisdiction.
In other words, one cannot allege the IRS has no jurisdiction over one while at the same time one continues to file a Form 1040 each year.
In the very few IRS cases where jurisdiction is challenged, almost always the judge will proclaim jurisdiction from the bench.
["It is the opinion of this court that the prosecution has jurisdiction in this case, and exercises it regularly, almost every day.
I don't think we need to go through all that today."]
This is a total violation of law and accepted court procedures.
But most federal judges won't let that stop them!
But the one alleging jurisdiction must prove jurisdiction if jurisdiction is challenged.
Usually the defendant charged with a crime is too intimidated or ignorant to successfully challenge a judge on this, but the judge MUST be challenged if he/she proclaims that the prosecution (IRS) has jurisdiction in this case.
If he/she is not successfully challenged, almost always the individual will lose the case.
One of the easiest and most common means of alleging jurisdiction on the part of the prosecution (IRS) is to refer to the accused as a "taxpayer."
If that word is ever used in reference to the so-called tax protester," it MUST be immediately challenged:
["I object, your Honor.
The prosecution has just labeled me a taxpayer.
Whether or not I am a taxpayer is the very root issue in this case, and has not been proven by the prosecution.
I respectfully request that the word 'taxpayer' be stricken from the record and that the prosecution be instructed to not use that word again until it has proven that I am indeed a taxpayer."]
If the defendant does not challenge that word, and similar techniques used by the IRS, the judge will have legal justification to assume jurisdiction.
Of course, if the defense has done its job, the issue of taxpayer and jurisdiction would already be established.
The time to challenge jurisdiction is at the beginning of the trial, not at the end when it looks like the individual is about to lose.
If jurisdiction is to be successfully challenged, it must be at the very beginning of the trial.
To allow the trial to continue at all is to admit to jurisdiction.
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03-31-2006, 09:20 PM
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Seven Elements of Jurisdiction P-2
Below are the seven issues of jurisdiction in any and every court case.
Remember, if any one of these seven are not proven beyond a reasonable doubt, the case cannot continue.
1. The accused must be properly identified; identified in such a fashion there is no room for mistaken identity.
The individual must be singled out from all others; otherwise, anyone could be subject to arrest and trial without benefit of "wrong party" defense.
Almost always the means of identification is a person's proper name, BUT, any means of identification is equally valid if said means differentiates the accused without doubt.
(By the way, there is no constitutionally valid requirement that you must identify yourself to the judge or to anyone.)
For stop and identify issues (4th Amendment) see Brown v. Texas, 443 US 47
http://www.justia.us/us/443/47/case.html
and
Kolender v Lawson, 461 US 352.
http://www.justia.us/us/461/352/case.html
2. The statute of offense must be identified by its proper or common name.
A number is insufficient.
Today, a citizen may stand in jeopardy of criminal sanctions for alleged violation of statutes, regulations, or even low-level bureaucratic orders (example: Colorado National Monument Superintentdent's Orders regarding an unleashed dog, or a dog defecating on a trail).
If a number were to be deemed sufficient, government could bring new and different charges at any time by alleging clerical error.
("I'm sorry, your Honor.
I assumed that the regulation indicated by that number was a legitimate statute.
My secretary must have made an error.")
For any act to be triable as an offense, it must be declared to be a crime.
Charges must negate any exception forming part of the statutory definition of an offense, by affirmative non-applicability.
In other words, any charge must affirmatively negate any exception found in the law.
Example of exception from a case where someone was on trial for Section 7203, Wilfull Failure to File(a Form 1040):
"... thereof to make a return (other than a return required under authority of 6015)...
Indictment or information is defective unless every fact which is an element in a prima facie case of guilt is stated.
The assumption of an element is not lawful.
Otherwise, the accused will not be thoroughly informed.
26 USC 6012 is a necessary element of the offense.
Since 6012 isn't cited, the information is fatally defective.
Additionally, the information did not negate the exception (other than required under authority of section 6015)."
After reading 6012 and 6015, and knowing that the essential section 7203 elements are:
A. Required to perform.
B. Failed to perform.
C. Failure was willful you may wish to ask:
"how often is a valid Section 7203 indictment or other information or indictment brought?
Very seldom.
How many citizens have been convicted on a fatally defective process?
Perhaps thousands, all with the knowing or willing participation of a federal judge.
It is the judge's job to assure that justice is accomplished.
But the judge will almost always stop short of doing his/her job and wait until the defense takes the important steps.
The fact that most defense attorneys don't know how to fight a case against the IRS doesn't seem to matter to the judges.
Nor does it seem to matter to the judge.
3. The acts of alleged offense must be described in non- prejudicial language and detail so as to enable a person of average intelligence to understand nature of charge (to enable preparation of defense); the actual act or acts constituting the offense complained of.
The charge must not be described by parroting the statute; not by the language of same.
The naming of the acts of the offense describe a specific offense whereas the verbiage of a statute describes only a general class of offense.
Facts must be stated.
Conclusions cannot be considered in the determination of probable cause.
4. The accuser must be named.
He may be an officer or a third party.
Some positively identifiable person (human being) must accuse.
Some certain person must take responsibility for the making of the accusation, not an agency or an institution.
This is the only valid means by which a citizen may begin to face his accuser.
Also, the injured party (corpus delicti) must make the accusation.
Hearsay evidence may not be provided.
Anyone else testifying that he heard that another party was injured does not qualify as direct evidence.
5. The accusation must be made under penalty of perjury.
If perjury cannot reach the accuser, there is no accusation.
Otherwise, anyone may accuse another falsely without risk.
6. To comply with the five elements above, that is for the accusation to be valid, the accused must be accorded due process.
Accuser must have complied with law, procedure and form in bringing the charge.
This includes court-determined probable cause, summons and notice procedure.
If lawful process may be abrogated in placing a citizen in jeopardy, then any means may be utilized to deprive a man of his freedom.
All political dissent may be stifled by utilization of defective process.
7. The court must be one of competent jurisdiction.
To have valid process, the tribunal must be a creature of its constitution, in accord with the law of its creation, i.e. (article III judge).
Without the limiting factor of a court of competent jurisdiction, all citizens would be in jeopardy of loss of liberty being imposed at any bureaucrat's whim.
It is conceivable that the procedure could devolve to one in which the accuser, the trier of facts, and the executioner would all be one and the same.
The first six elements above deal primarily with the issue of personal jurisdiction.
The seventh element (also element #2) addresses subject matter and territorial jurisdiction.
Subject matter jurisdiction is conferred by acts controlled by law;
territorial jurisdiction attaches by venue of the parties in relation to the court and to any trans- jurisdictional acts and/or activities of the parties
(extended territorial jurisdiction is conferred by controversial long-arm statutes).
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03-31-2006, 09:21 PM
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Seven Elements of Jurisdiction P-3
SUMMING UP the LAW and the POLITICS
Lacking any of the seven elements or portions thereof, (unless waived, intentionally or unintentionally) all designed to ensure against further prosecution (double jeopardy); to inform court of facts alleged for determination of sufficiency to support conviction, should one be obtained.
Otherwise, there is no lawful notice, and charge must be dismissed for failure to state an offense.
Without lawful notice, there is no personal jurisdiction and all proceedings prior to filing of a proper trial document in compliance with the seven elements is void.
A lawful act is always legal but many legal acts by government are often unlawful.
Most bureaucrats lack elementary knowledge and incentive to comply with the mandates of constitutional due process.
They will make mistakes.
Numbers beyond count have been convicted without benefit of governmental adherence to these seven elements.
Today, informations are being filed and prosecuted by "accepted practice" rather than due process of law.
See Corpus Juris Secundum (CJS), Volume 7, Section 4, Attorney & client:
The attorney's first duty is to the courts and the public, not to the client, and wherever the duties to his client conflict with those he owes as an officer of the court in the administration of justice, the former must yield to the latter.
Clients are also called "wards" of the court in regard to their relationship with their attorneys. After you have read the foregoing, ask your attorney to see a copy of "regarding Lawyer Discipline & other rules" Also Canons 1 through 9.
Corpus Juris Secundum assumes courts will operate in a lawful manner.
If the accused makes this assumption, he may learn, to his detriment, through experience, that certain questions of law, including the question of personal jurisdiction, may never be raised and addressed, especially when the accused is represented by the bar.
(Sometimes licensed counsel appears to take on the characteristics of a fox guarding the hen house.)
Jurisdiction, once challenged, is to be proven, not by the court, but by the party attempting to assert jurisdiction.
The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered. See McNutt v. GMAC, 298 US 178.
Http://www.justia.us/us/298/178/case.html
The origins of this doctrine of law may be found in Maxfield's Lessee v Levy, 4 US 308.
http://www.justia.us/us/4/308/case.html
NOTE: Today the courts are unconcerned with questions such as whether or not the 16th or 17th amendments were ever lawfully ratified.
If the courts were to address this type of question honestly, the government, with its huge bureaucracy and patron special interests would be placed in jeopardy.
This potential threat is not allowed nor will it ever be.
It is much easier for the courts to label such potential threats as political questions, point to the lateness of the clock and refuse to hear or rule.
Whatever the political juggernaut does, it uses the facade of law to justify or reconcile it.
The only way such questions will have force and effect is if the general public becomes aware and concerned with justice being based upon law and not just policy based on a facade of law.
If you doubt such words, please be assured that they are not just words but are, in fact, and articulation of the unwritten, unspoken, present public policy, as enforced by the courts in dealing with challenges to governmental acts and authority.
For documentation, see US v WAYNE WOJTAS, 85 CR 48 in the US District Court for the Northern District of Illinois, Eastern Division and Judge Shadur's opinion on the 16th Amendment. http://72.14.203.104/search?q=cache:...ient=firefox-a
You will see the beginnings and threat of disbarment of a certain "aggressive" licensed attorney.
To be truly effective in the courts in any challenge to governmental power and authority, the challenger must possess a good understanding of politics.
This is especially so since government and the courts are primarily concerned with a public perception of the balancing of the scales of justice rather than the attainment of true justice under the law.
Once it is realized that the court is primarily concerned with politics, it then becomes necessary for any challenger to become proficient in the political arena.
By politics, we speak, not of the electoral process, but of the politics of association.
Keeping this in mind, and truly understanding the concept, a man accused of breaking a "rule" for which he may suffer penalties of imprisonment, fine and costs without benefit of trial or Constitutional safeguards, may very will consider bringing a criminal charge against himself directly in court and thereby blunt his adversaries' attack.
To the uninitiated, this may sound like madness, but to the political scholar destined to appear before a "master" to answer to alleged rule violation of the unauthorized practice of law, the self-accusatory route to the courts may be the only hope of victory; both legal and political.
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