Waivable Defense: Personal Jurisdiction....

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A'nold
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Waivable Defense: Personal Jurisdiction....

Postby A'nold » Tue Sep 22, 2009 8:19 pm

If a party doesn't claim this before or in the answer, the defense is waived, I know that. But, (we are not getting into jurisdiction until next semester) what I don't know is: If that defense is waived, is the case dismissed or can a court try a case where it lacks personal jurisdiction over a party?

N2012
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Re: Waivable Defense: Personal Jurisdiction....

Postby N2012 » Tue Sep 22, 2009 8:36 pm

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Last edited by N2012 on Sat Oct 10, 2009 1:50 pm, edited 1 time in total.

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rayiner
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Re: Waivable Defense: Personal Jurisdiction....

Postby rayiner » Tue Sep 22, 2009 8:47 pm

A'nold wrote:If a party doesn't claim this before or in the answer, the defense is waived, I know that. But, (we are not getting into jurisdiction until next semester) what I don't know is: If that defense is waived, is the case dismissed or can a court try a case where it lacks personal jurisdiction over a party?


Personal jurisdiction is basically the right to haul you before a court. You can always voluntarily consent to appear before a court. When you waive the right to contest personal jurisdiction, that is exactly what you're doing, and the court can make judgements on you. Subject matter jurisdiction is what can't be waived.

This makes sense if you think about where the two concepts come from. Personal jurisdiction comes from Due Process, which basically ensures that you get a "fair shake" at trial. If you consent, you're acknowledging that you're getting a fair shake, and the court can continue without violating due process. Subject matter jurisdiction comes from Article III, which outlines the powers of the federal courts (or from equivalent articles in state constitutions when talking about state courts). Even if you waive your right to contest subject matter jurisdiction, a court's hearing a case for which it doesn't have subject-matter jurisdiction still violates Article III.

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ggocat
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Re: Waivable Defense: Personal Jurisdiction....

Postby ggocat » Tue Sep 22, 2009 9:05 pm

A'nold wrote:If a party doesn't claim this before or in the answer, the defense is waived, I know that. But, (we are not getting into jurisdiction until next semester) what I don't know is: If that defense is waived, is the case dismissed or can a court try a case where it lacks personal jurisdiction over a party?

Short answer: when a defendant waives the lack-of-PJ defense, the case is not dismissed because PJ now exists.

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A'nold
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Re: Waivable Defense: Personal Jurisdiction....

Postby A'nold » Tue Sep 22, 2009 9:28 pm

Thanks everyone. Why we aren't doing jurisdiction until next semester is beyond me.......those were some great responses and thanks for the policy Rayiner.

270910
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Re: Waivable Defense: Personal Jurisdiction....

Postby 270910 » Tue Sep 22, 2009 10:44 pm

Rayiner covered it, but just a fun point: it can actually be difficult to contest personal jurisdiction WITHOUT waiving personal jurisdiction, if that makes any sense. You basically have to make a 'special appearance' to contest ONLY the personal jurisdiction claim, because filing any other substantive motion or making any kind of substantive point is considered submitting to the court, at which point it is more than happy to assert personal jurisdiction over you.

the other alternative is to never show up, and then contest jurisdiction at the point where the default judgment entered against is attempted to be enforced.

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annapavlova
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Re: Waivable Defense: Personal Jurisdiction....

Postby annapavlova » Tue Sep 22, 2009 10:52 pm

A'nold wrote:If a party doesn't claim this before or in the answer, the defense is waived, I know that. But, (we are not getting into jurisdiction until next semester) what I don't know is: If that defense is waived, is the case dismissed or can a court try a case where it lacks personal jurisdiction over a party?


You consent to the personal jurisdiction of the court by not filing the 12(b)(2). By simply engaging in the suit (ie. answering the complaint) you are consenting to that court's PERSONAL jurisdiction. So technically, no, the court does not lack personal jurisdiction over you if you consent to its personal jurisdiction. Maybe you could have had a successful motion to dismiss on lack of PJ (facts corroborating), but your lawyer sucked and didn't file the 12(b)(2) on time.

Venue and SMJ could be a different story, but that should clear up your particular question.

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annapavlova
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Re: Waivable Defense: Personal Jurisdiction....

Postby annapavlova » Tue Sep 22, 2009 10:54 pm

A'nold wrote:Thanks everyone. Why we aren't doing jurisdiction until next semester is beyond me.......those were some great responses and thanks for the policy Rayiner.


Me either...I don't know how in the hell you could understand all of the other stuff (I assume its pleading, joinder, etc.) without understanding jurisdiction.

But maybe I'm biased to my prof's ways because she rocks.




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