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.