Personal Jurisdiction

Personal jurisdiction means does a court have power over a particular defendant? Personal jurisdiction is usually not an issue where both the plaintiff and defendant reside in the same state. The problem becomes trickier, however, if the plaintiff and defendant are from different states. Is it reasonable to require a defendant to travel thousands of miles to defend a frivolous lawsuit in the plaintiff’s backyard? Conversely, is it reasonable for a defendant to rip-off people in another state, knowing that the plaintiff will not spend the money to travel to the defendant’s state to file a lawsuit? The law of personal jurisdiction addresses these issues.

A plaintiff can demonstrate personal jurisdiction in several ways. The plaintiff can physically serve the defendant with the lawsuit within the subject jurisdiction. The defendant can also “consent” to personal jurisdiction by: 1) answering the lawsuit (general appearance); 2) being incorporated or having a designated agent for receipt of service, in the subject state; 3) being a resident or being domiciled within the subject state; 4) agreeing to the subject jurisdiction in a written contract.

It is very important to examine the question of personal jurisdiction before doing anything else. Filing a lawsuit as the plaintiff, or answering one as the defendant may waive any claim you might have had that personal matter jurisdiction is not appropriate in your particular case. The first thing to do is to look at the law of the state in questions. These laws are called “Long Arm Statutes” and list the types of cases the state’s courts will allow a plaintiff to obtain personal jurisdiction over a defendant. Whether a state has a long arm statute or not, the plaintiff must demonstrate the non-consenting defendant has sufficient minimum contacts to comport with constitutional due process.

Once a plaintiff demonstrates sufficient minimum contacts, the plaintiff must prove that the defendant’s conduct and connection with a state are such that the defendant should have reasonably anticipated being haled into court in that state. The critical element is forseeability. Given defendant’s activities, would a finding of personal jurisdiction over defendant offend traditional notions of fairplay and justice. Should the defendant have objectively foreseen being haled into court in that state? The defendant’s subjective feelings are not at issue.

The question is “what would a typical person in defendant’s position have foreseen?” If a reasonable person in defendant’s position should have anticipated that its activities would give rise to a lawsuit in a particular state, then personal jurisdiction is likely proper.

Brett Trout

internet jurisdiction internet law personal jurisdiction

Subject Matter Jurisdiction

Any lawsuit, whether it involves cyberlaw issues or not, must demonstrate subject matter jurisdiction before a court will allow it to proceed. Indeed, a lack of subject matter jurisdiction may wrest a case from a judge, even after years of work. Judges, therefore, are fanatical about assuring subject matter jurisdiction exists before proceeding with any other matters. It is important to have all "ducks in a row" with regard to Internet jurisdictional before filing a lawsuit. Anticipate the other side’s objections to jurisdiction and have responses at the ready.

Do not rely on a single basis for jurisdiction. Most cases provide ample support for jurisdiction under multiple theories. The more jurisdictional theories the case can support, the less likely the other side will be able to convince the court to dismiss the case for want of jurisdiction. With multiple theories in play, even if the other side is able to kick out a jurisdictional basis near the end of trial, the court still may have justification for ruling on the case.

Conversely, a defendant can rest assured the plaintiff did not choose the particular jurisdiction with the defendant’s interests in mind. Therefore, it is just as advisable for the defendant to thoroughly research the issue of jurisdiction. Although not nearly as satisfying as a jury verdict, getting the other side’s case tossed early due to a jurisdictional technicality can save hundreds of thousands of dollars, and years of legal wrangling.


Brett Trout

Internet jurisdiction Internet law subject matter jurisdiction

Internet Jurisdiction - Introduction

What is jurisdiction and why should you care? Jurisdiction is whether a particular court has the power to hear a case. Jurisdiction is often an issue in Internet related cases, since the parties both want to have the case heard in their own back yard. Not only is “home field” advantage a factor, but the costs of not having to travel (or, more importantly, not having to have your lawyers travel) can give you the added resources to see a trial through to the end or leverage settlement negotiations.

There are two types of jurisdiction: personal jurisdiction and subject matter jurisdiction. While the parties have the power to waive personal jurisdiction, they cannot waive subject matter jurisdiction. Indeed, if the parties fail to timely assert a lack of personal jurisdiction at the outset of a case, they may be deemed to have waived the issue. Conversely, either party can raise the issue of subject matter jurisdiction at any time.

Because a lack of subject matter jurisdiction may wrest a case from a judge, even after years of work, judges are rightly fanatical about assuring subject matter jurisdiction exists before proceeding with any other matters. To avoid having your case tossed out of court, it is often advisable to provide the court with multiple reasons why it has subject matter jurisdiction. Therefore, even if the other side is able to kick out one of your reasons near the end of trial, the court still has justification for ruling on the case.

Brett Trout

Internet jurisdiction Cyberspace Lawyer Internet Litigation