This isn’t an important case, instead its one of those cautionary tales we see too often.
Plaintiff sued the out-of-state Defendant for breach of contract. Defendant defaulted but then moved to dismiss for lack of personal jurisdiction. It asked (but not until its Reply to Plaintiff’s Opposition) for an extension of time to file the motion, saying that it would have filed before the default became effective but for a computer virus that messed up its lawyers’ calendar. The trial court denied that and also entered default judgment, on the theory that the default admitted the jurisdictional allegations of the Complaint.
The Court of Appeals agrees that denying Defendant more time was proper. The computer excuse barely explains why the motion came after default and doesn’t explain why Defendant didn’t file a timely Answer in the first place.
This is what happens when lawyers work to deadlines. Instead of doing what’s important when its important they do whatever their calendar tells them has to be filed today. They have no apparent system to triage tasks and no effective task lists or reminders, much less any sense of how to time things to the needs of a particular case. And having bought software to do their thinking for them, when the computer goes down they shrug their shoulders and say it wasn’t their fault.
But Plaintiff found an even better way to lose than Defendant did. The basis for jurisdiction was the Complaint. It alleged that Defendant had a web site. Although some Arizona judges have said that that’s a perfectly good reason for jurisdiction this opinion cites a Ninth Circuit case holding that simply having a web site available to Arizonans, and everyone else, does not show purposeful contact directed toward them. The Complaint also contained a brief paragraph alleging summarily that various things happened in Arizona. “Even assuming [that paragraph] contains well-pleaded facts, it does not show that [Defendant ] purposefully availed itself of the privilege of conducting business in Arizona” nor that jurisdiction here would be reasonable. So the allegations, even assuming their truth, didn’t show jurisdiction. The Court of Appeals vacates the judgment and dismisses the case.
Did Plaintiff know it had a jurisdiction problem and do its best to tiptoe around it? Did it not know? Did it not understand enough about jurisdiction to know how to plead it? Both parties are foreign corporations yet the case arises out of an underlying lawsuit contested, for reasons unstated, in the District Court of Arizona. There being more here than meets the eye, we’ll opt for the most charitable explanation.
(Opinion: Smith & Wesson v. The Wuster)
Some observations on abuse of process.
Plaintiff built a dirt-bike track on his property for his kids. When they used the track Defendant, his neighbor, complained that they violated the county’s noise ordinance. Sheriff’s deputies cited him but Justice Court found him not guilty, whereupon he sued Defendant for abuse of process. He argued that her motives were wrong — that she acted from spite and ill-will and that she wanted to get rid of the track, which she thought hurt property values. The trial court granted Defendant’s motion to dismiss.
The Court of Appeals affirms. “[C]ontacting law enforcement to complain about a neighbor’s conduct is not use of a judicial process.” “[F]or abuse of process, a plaintiff must show that a defendant used an instrument of court process, and that did not happen here.”
But Plaintiff had a case — Ledvina (CA2 2006). Holding that making a report to law enforcement was absolutely privileged against a defamation claim, because it is “the first step in a judicial proceeding,” it went so far as to say that although defamation would not lie, abuse of process could. But that was dicta and “is not supported by any authority holding that merely reporting a crime constitutes use of a judicial process as required for an abuse of process claim.” This opinion uses instead an Iowa Supreme Court case holding that “a report to the police is not sufficient to constitute ‘legal process’ required for an abuse-of-process claim.”
The court also addresses the wrong-motive argument. Even if calling the sheriff were a use of process, to be tortious that must be done “for an ulterior purpose that was not proper in the regular conduct of the proceedings.” Plaintiff alleged that Defendant really wanted to get rid of the track. But complaining of allegedly illegal practices involving it was not improper or irregular. Quoting the Restatement, “[E]ven a pure spite motive is not sufficient where process is used only to accomplish the result for which it was created.”
(Opinion: Fappani v. Bratton)
We blogged the Court of Appeals opinion here.
The Supreme Court agrees for the most part. “We hold that the rule . . . prohibits a party from providing prospective trial witnesses with transcripts of prior witnesses’ trial testimony.” Defendant violated the rule.
“We further hold . . . that a violation . . . is not presumptively prejudicial in a civil action,” at least the witnesses are experts. “[A] rebuttable presumption of prejudice should apply only in those limited cases in which a witness’s Rule 615 violation is substantial and . . . makes proving the existence of prejudice nearly impossible.” “In all other cases, the moving party must at least prove that a witness’s Rule 615 violation gave rise to an ‘objective likelihood of prejudice.'”
But the court adds that “even when no prejudice is shown, the trial court must take some corrective action by tailoring an appropriate remedy under the circumstances.”
The court also agrees that “violations involving fact witnesses are more likely to be prejudicial than violations involving expert witnesses.” But it thinks that the courts below may have gone a bit too far. “To the extent [they] suggested that in a medical malpractice case, or in any case involving expert testimony, the Rule 615(c) exception necessarily applies and should be granted merely upon a party’s request, we disagree. Again, expert witnesses are not automatically exempt from the general rule of exclusion in Rule 615.” And “the request and showing under Rule 615(c) must be made before, not after, a party engages in conduct that would otherwise violate a court’s exclusion order, that is, before having a witness hear, or read, other witnesses’ trial testimony.”
(Opinion: Spring v. Bradford)