January 7th Notes

Litigation Basics
January 7, 2010

Subject Matter
-court and type of matter
-never a substitute for subject matter jurisdiction

Personal Jurisdiction
-relationship of court and the parties in the court
-minimal substitutes like in rem and quasi in rem

Chapter 2     page 48

In Rem Jurisdiction
-the court can still hear a case if it has jurisdiction over property that is the subject of a dispute
-can substitute personal jurisdiction
-limited to rendering judgments that affect only property
-cannot render personal judgments against the defendant that do not concern that property
-state always has jurisdiction over property in its borders

Ask:
-Does this concern property in the state and has proper notice been given to defendant?

Quasi In Rem Jurisdiction
1. defendant must own some property in the state, although the property need not be the subject of the lawsuit
2. any judgment is limited to the value of the property within the state, waive the right to seek all other property
3. that property is usually brought before the court at the beginning of the lawsuit through an attachment proceeding
-due process still requires that the exercise of jurisdiction be fair and the defendant be notified of the lawsuit
-situs: location of the property
-real property is unique to the state

Attachment
-formally seizing property in order to bring it under the control of the court
-done by getting a court order to have law enforcement take control of the property

Venue
-local area where a case may be tried that already have personal and subject matter jurisdiction is already covered
-jurisdiction is subject of fixed rules but venue is often left up to discretion 
-a court's lack of proper venue does not render a judgment void
-if defendant does not object improper venue, than can not object judgment
-30 days from service you can opt to change venue

Federal Court Venue
-all districts within the state have personal jurisdiction, venue may be limited

Federal General Venue
Statue 28 U.S.C. § 1391
1. Judicial district where any defendant resides, as long as all the defendants reside in the same state
2. Judicial district where the acts that form the basis of the lawsuit occurred

-if action cannot be brought in any district meeting that criteria an alternative venue is provided depending on whether the action is based on diversity of citizenship
-if action is diversity of citizenship venue is property in any judicial district having personal jurisdiction over any defendant
-if lawsuit is based on some other basis, venue is proper in any judicial district in which any defendant can be found

-lawsuits on copyrights or trademarks may be brought in the district in which the defendant resides
-patent infringement actions may be brought in judicial district where the defendant resides or the defendant has committed acts of infringement and has a regular, established place of business 28 U.S.C. § 1400
-stockholder on behalf of his corporation may be brought in any judicial district where the corporation might have sued defendants 28 U.S.C. § 1401
-when the US is the defendant, venue is proper in judicial district where the plaintiff resides 28 U.S.C. § 1402

State Court Venue
-venue determined by state law
-usually in which the defendant resides or where the cause of the action arises
-other counties might also have proper venue
-contract cases actions can be heard in the county in which the contract was made, was performed, was breached
-title to real estate the action is normally heard wherever the real estate is located

WA State Venue Rules
-locates at RCW 4.12.010 et seq. and CR Court Rule 82
In state defendant:
    -where action arose
    -where the defendant or any of them reside
    -Why?  Due Process
Out of state defendant:
    -plaintiff's residence
    -where the long arm statute act occurred
    -where the defendant is served
If the defendant is a corporation
    -any county where they have an office or business
    -where anyone that can receive process for the corp. resides
    -where the tort was committed
    -where the contract was entered
    -where the corp. has a residence (state of inc.)
    -where the corp. did work

-Real property venue is where the property is located

Forum non conveniens
    -inconvenient forum, changing venue
1. If the burden on the defendant or witnesses unreasonable, unfair, hardship
2. Majority of evidence is in another county
-venue does not relate to the court's basic power to hear a case
-place of the trial can be changed only to another court that has jurisdiction

Motion for Change of Venue
-formal written request must be sent to where the lawsuit was filed
-must have a good reason such as
    -not being able to get a fair trial
    -case was not filed in proper court to begin with
    -to be more convenient for the witnesses

Chapter 2 Review Questions
1. What are the functions of the trial courts of appeals in the litigation process?
2. How is the federal court system structured?
3. What are some of the different courts in state court systems?
4. What is the subject matter jurisdiction?
5. What are three types of cases that can be brought in federal court?
6. What is the difference between exclusive and concurrent jurisdiction?
7. When does a court have personal jurisdiction over a party to a lawsuit?
8. Why do states have long-arm statues?
9. What is the difference between personal jurisdiction and in rem jurisdiction?
10. What is venue?

WA Court Rules (State 2010)
--RPC Rules of Professional Ethics page 59
--ER Evidence Rules  page 231
--RAP  Rules of Appeals  page 283
--CR Court Rules  page 377
--MAR Arbitration Rules  page 439

Chapter 3   page 60

Cause of Action
-facts sufficient to support a valid lawsuit
-the legal theory upon which a lawsuit is based
-CR 11 ethical obligations from having attorney's file lawsuits

-Remember first the law then the facts
-Clients are not reliable for facts
-identify the elements and present evidence that supports each element

Is there a cause of action?
1. Determine what general area of substantive law applies to the case
2. Examine that specific area and determine what factors of elements must be present
3. Review the case itself to see if facts exist that support the elements

Bruce's Cause of Action Triangle
-Building a fire:  Heat -- Fuel -- O2
-Lawsuit:  Liability -- Damages -- "Pocket" (someone to pay it)

Bruce's Sour Milk Theory
-cases never get better, they are bad from the start they will continue so