Category: Litigation Tips

A critical inquiry at the start of any lawsuit is whether your client or adversary is subject to jurisdiction in the chosen forum.  Even experienced litigators often overlook this key issue.
At Lewis & Llewellyn, we specialize in bringing and defending against jurisdictional challenges.  In the last six months, we have:

• Defended a well-known San Francisco internet review site in federal court against a motion to dismiss based on the “first-to-file” rule;
• Brought motions based on forum non conveniens and a motion to dismiss based on a forum selection clause on behalf of a British conglomerate;
• Defended against a motion to dismiss or stay based upon forum non conveniens and a forum selection clause in a high-profile employee lift-out case; and
• Brought a motion to dismiss in Florida federal court based on a lack of personal jurisdiction on behalf of one of the nation’s leading Real Estate Investment Trusts.

Litigating these issues requires a detailed legal analysis.  First, as the United States Supreme Court explained in Burger King Corp. v. Rudzewicz, a defendant may not be sued in a jurisdiction “with which he has established no meaningful contacts, ties or relations.”  In California, when a nonresident defendant challenges the court’s jurisdiction, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of evidence.  The plaintiff must present specific evidentiary facts through competent, admissible evidence to establish personal jurisdiction over the defendant.

Section 418.10 of the California Code of Civil Procedure provides the exclusive procedure for challenging jurisdiction at the outset of a case.  It provides that a party may move to quash service of summons for lack of jurisdiction “on or before the last day of his or her time to plead.”  However, if a party makes a general appearance before filing a motion to quash, then any objection to the court’s jurisdiction may be waived.  Acts which constitute a general appearance include, among other things, filing a demurrer, motion to strike or answer; propounding discovery; and issuing a deposition subpoena.  Conversely, if a motion to quash is timely made, a defendant’s later pleadings and participation in discovery do not waive lack of personal jurisdiction until after the court enters an order denying the motion and any related writ proceedings are concluded.

The conclusion is clear: if a defendant intends to challenge jurisdiction in California, it is critical that the first step in the lawsuit be a motion to quash service of summons, otherwise the defendant may find that its challenge to the court’s jurisdiction has been waived.

Last week, a number of critical rule changes occurred in both federal and state courts in California.  Civil litigators and in-house counsel should take note of the new rules, which take effect immediately.  We briefly summarize the rule changes below:

Federal Court: The most significant rule changes occurred in the civil local rules for the Northern District of California.  Specifically, the Court amended Rule 5, concerning the electronic filing of documents, placing even greater importance on having an effective e-filing system in place.  The Court also amended Rule 7 (motion practice) to clarify that in all circumstances, opposition briefs are due 14 days after a motion is filed, and reply briefs are due 7 days after an opposition is filed.  The court also clarified that any deadline is extended by 3 days when a party manually files a pleading instead of e-filing it.  Finally, the court extensively amended Rule 11 (attorney discipline).  All of the new rules are available on the NDCA’s website.

State Court:  First, and most significantly, the deadline to deposit jury fees under C.C.P. 631 has changed.  Under the new rule, the advance jury fee deposit must now be made before the initial CMC, and all jury fees posted under the new rule are nonrefundable.  All California litigators should take note of this rule change.  Second, as a result of the enactment of SB 1021, various civil filing fees have been established or increased as of June 27, 2012.  The additional revenue from these fee changes will be used to offset reductions to trial court funding.  For example, the fee to file a complaint, respond to a complaint, or any other first appearance in a case has increased from $410 to $435.  Similarly, the additional fee for complex cases has risen to $1,000.  Other fees have increased, including jury fees, court reporting services and per diem fees, and post-judgment related fees.  Updated fees can be found online.

A strategic lawsuit against public participation (SLAPP) intends to censor, silence, or intimidate individuals by saddling them with a lawsuit until they are silenced.  Most California litigators have at least heard of the statute, but many litigators do not know how the statute applies in federal court.  In an article published in the San Francisco Daily Journal on April 30, 2012, Marc Lewis examines the application of the anti-SLAPP statute in federal court.

As companies increasingly conduct business across both state and international borders, parties commonly pre-select the court in which any dispute between them must be resolved – a so-called “forum selection clause.”  In an article published in the San Francisco Daily Journal on March 30, 2012, Paul Llewellyn examines the enforceability of forum selection clauses in California.

What is a forum selection clause?  How do California courts enforce forum selection clauses?  What should a party do if a plaintiff tries to sidestep a forum selection clause and sues in the wrong forum?  Paul addresses these and other issues in the article, which can be read here.