Be Careful Where You Vacation: Personal Jurisdiction Based on Physical Presence

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Be Careful Where You Vacation: Personal Jurisdiction Based on Physical Presence

November 11, 2014

Beach

My family spent this past 4th of July weekend at a bed and breakfast in Granbury, Texas. We haven’t done any “small town” Texas vacations, and this seemed about as good an opportunity as any. Granbury puts on a great celebration of our nation’s birthday in its town square. A big parade, huge fireworks show, vendors on the square (yes, more food trucks, and with Cajun food!) and craft beer from a local brewery. Oh, and Babe’s Chicken Dinner House. For a brief getaway to celebrate the 4th, it doesn’t get much better than that.

One of the highlights of the trip was an event we weren’t even aware of until we’d already arrived. On the town square was a refurbished opera-house, complete with balcony and beautiful new chandeliers. The theater was staging a play by local actors, one fit for the occasion – 1776. Now, I vaguely remember the movie of the same title released back in the 1970’s, and all I can remember is that I couldn’t make it through the movie without falling asleep. A lot of talking and arguing by guys wearing white wigs. I was just a teenager and so I wanted ACTION. Couldn’t they have stuck in just a few Revolutionary War battles to spice things up?

Maybe it’s just a function of age, but the live theater performance of 1776 in Granbury was a much different experience. I didn’t fall asleep this time, despite having thrown back a few cold ones from Revolver Brewing Company. And to be sure, the performances were great, but what struck me the most was the historical perspective I walked away with. I guess on some conscious level I always knew that John Adams, Thomas Jefferson, and our other founding fathers were what Bill and Ted would call “righteous dudes,” but I never really thought about what they were up against. They knew that if they failed they’d be tried and put to death as traitors. What cojones they had! I left the theater thinking about what a different path our country might be on right now if just a few members of Congress had their guts.

Although our founding forefathers gave us much to be thankful for and to celebrate, they didn’t give us the 14th Amendment and the due process clause. That came much later, in 1868. I’ve never thought about that until we started driving back home from Granbury. With the family in tow and already talking about whether to make “the 4th in Granbury” a family tradition or else vacation outside Texas next year, I got to thinking about the practical implications of our decision, in ways I had not thought of before.

So much of personal jurisdiction law is devoted to determining whether the out-of-state defendant has “minimum contacts” with the state in which suit is filed (the forum state). The question often boils down to whether the court can assert jurisdiction over the non-resident without violating what the U. S. Supreme Court calls “traditional notions of fair play and substantial justice. ” But there is a much easier way to obtain jurisdiction over a non-resident defendant without engaging in these court battles.

That way is by serving the defendant with suit papers while the defendant is physically present within the forum state. It does not matter if the defendant happens to be in the state for just a few minutes, or if that person is present within the state for reasons unrelated to the lawsuit. What matters is that the defendant be within the physical territorial limits of the state. If the party wanting to sue can find the defendant physically within the state in which suit was filed, and can serve him with suit papers there (usually with the help of a process server), then viola, jurisdiction over the non-resident defendant exists. It’s virtually automatic.

Think about the implications of that for a just a minute. A father sues for divorce in New Jersey where he resides and where the couple used to reside, and the mother files for divorce in California, where she now resides with the kids. The father travels to California on business, and afterwards decides to take one of the kids to San Francisco for the weekend. When he returns to drop off the kid, he’s served with suit papers in the California suit filed by the wife. Boom, the California court has jurisdiction over him. It simply doesn’t matter that the father has no “minimum contacts” with California. And it does not matter that he was not in California to discuss the divorce. What matters is that he was physically present in the state and was served with suit papers while there. That’s all that 14th Amendment “due process” requires. So the father must hire an attorney in California and litigate the divorce there. Bummer (at least for the father).

There are those of you out there thinking, “that’s just not fair,” or “that just can’t be the law. ” I assure you it is the law. And for those of you who might be thinking, “that’s just a drummed up hypothetical that has no basis in reality,” I assure you it is not. It’s from a real case — and not just any case. This is not some random ruling handed down by a federal judge who should have retired long ago or by some state judge whose cheese has fallen off the cracker. It’s from the United States Supreme Court, see Burnham v. Superior Court of California, 495 U. S. 604 (1990), and has been the law for as long as, well, the 14th Amendment has been around.

The irony in all of this is that the Supreme Court in Burnham based its holding on principles taken from “English common law practice. ” That’s right, it comes from the law of Great Britain. So we can “thank” Great Britain for at least one principle that is now firmly entrenched as U. S. personal jurisdiction law – a principle referred to as “transitory” personal jurisdiction.

Personal jurisdiction is often a hotly contested issue in courts. Nobody likes to get sued, and they especially don’t like to get sued outside their home state. And plaintiffs don’t like to have to file lawsuits outside their home state. So it’s a little surprising to me that more plaintiffs’ attorneys do not pour more of their resources into locating and serving the defendant at a time when the attorney knows the defendant will be physically present within the state in which suit is filed. Let’s face it, these days with so many advances in technology it’s not too hard to know where a particular person is going to be at any given moment.

Travelling to a state for a business meeting with someone or a company that might be planning to sue you there? Better think twice before agreeing to attend in person. Got a connecting flight through a city where you know someone might be trying to sue you? Better be looking over your shoulder as you pass through the security checkpoints. Planning on vacationing to a state where someone has threatened you with legal action? Better be careful. A strange man with suit papers in hand could be waiting for you as you check into the hotel.

While the law of personal jurisdiction continues to evolve, jurisdiction based on physical presence is not about to change. There are some limited exceptions to the rule which some states recognize. For example, some courts have enacted laws that prevent a plaintiff from”tricking” someone into going into the forum state so that they can be found and served with suit papers. But for the most part,if you’re found there, you can be served there and will have to defend the lawsuit there.

I can’t speak for the rest of my family, but for me a “family tradition” of spending every 4th of July in Granbury is looking better all the time.

Written By: Alex Beard

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