Now, I imagine that cross-state lawsuits are fairly common. Yet it seems like it would be very difficult to get the object of your suit to willingly come into your jurisdiction, at a known place and time, so that you can serve papers. I this case, they employed a ruse to get Cieri into NY, served the papers, and got the lawsuit thrown out due to “trickery or deceit”.
Could she file suit in NJ, instead of NY? If not, then how would one get such a suit filed short of trickery or hiring someone to tail him at great expense until he travels into NY? Is her lawyer giving her bad advice?
I could not find the article in your link so I am not sure of the facts. The only thing I can think of is the accident occured in NJ. They could have just filed in federal court based on Diversity jurisdiction. I am not sure why they had to serve the guy in NY. If the accident occured in NY, then service could be made outside.
The story leaves out the crucial element. Where did the accident happen? I am guessing it didn’t happen in NY. If it had then NY would have jusridiction and service could be made in NJ.
Right. New York’s long-arm statute specifically permits service outside of the state as long a s the defendant is subject to personal jurisdiction there.
If you are only relying on tag jurisdiction, you don’t have many options.
If the lawyer can allege an amount in controversy exceeding $75,000, the suit could be brought in federal court, as someone else has pointed out. But which federal court? In a case like this, a federal court will apply the forum state’s long-arm statute. New York has not applied its long arm statute as broadly as other states. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fed&navby=case&no=971551. Moreover, if the federal court had personal jurisdction over the defendant under the long arm statute, so would the state court. Therefore, the plaintiff would have to file in a federal court in New Jersey.
The point to take from all this is not that the plaintiff will be denied access to justice, just that the plaintiff is going to have to sue somewhere else. Here, it sounds like the accident didn’t happen in New York (because NY would have had jurisdiction if the accident happened there). Because the defendant lives in New Jersey, New Jersey has jurisdiction over the defendant for pretty much all purposes. So the plaintiff could sue in New Jersey. By doing so, the plaintiff is submitting herself to New Jersey jurisdiction for purposes of the case, and that could make it a bit more expensive for her (hiring local counsel, going to NJ for hearings and depositions, etc.). But, bottom line, the plaintiff will be able to sue the defendant. (The more interesting question is what happens if the plaintiff can prove that there is no other forum in the world, other than New York, where she can sue this guy.)
I see, that makes more sense. She’s trying to force NY jurisdiction (for some unknown reason) for a suit that seems to be more appropriately a NJ matter.
Yup. In tort cases, the unknown reason is typically: “The tort law in State X is a lot better than in State Y, where the tort actually happened.” For instance, one state might have the tort doctrine of controbutory negligence, which means that if the victim was partly at fault she gets no payday, while other states may have the emminently juster doctrine of comparative negligence, where, if the victim was partly to blame, the jury has to decide how much and discount her damages award accordingly.
For instance, let’s say Velma is jaywalking when Daniel plows into her with his sporty new roadster, causing $400,000 worth of damages (as measured in the inexact science of of tort damages valuation, so it includes medical bills, pain and suffering, loss of consortium, etc. – whatever legally cognizable damages the jury finds appropriate). Let’s also assume that Velma, due to her perambulatory insouciance, was 25% responsible, while Daniel is 75% responsible. In a comparative negligence state, she wins $300,000. In a contributory negligence state, she gets bupkus. So, as you can see, Velma would be deparate to bring the case in a comparative neg. state if there’s any way at all she can get jurisdiction therein.
New York law on comparative fault does appear different from the law of New Jersey. http://www.mwl-law.com/chart.htm (I realize that **Cliffy ** was only using that as an example, but it turns out to be a very good one). Both states have comparative negligence statutes, but New York’s is “pure,” and New Jersey’s is “modified.” In New York a plaintiff can recover against a defendant, even if the plaintiff is 90% at fault for the damages. In New Jersey, the plaintiff can recover only if she is 50% at fault or less.
There are other reasons to shop for a forum, though. Average jury awards might be higher in one jurisdiction, for example. Also, procedural rules (a court will always apply its own) can make a difference. Size of jury panel, unanimity requirements, rules of evidence, and other such niceties can make a big difference.
Huh, you’re right. According to this page, New York uses “pure comparative negligence”, meaning you can be sued even if an incident was only 1% your fault; by contrast, New Jersey law requires that an incident be at least 51% your fault before anyone can recover damages from you.
Of course, if this is the real reason she was filing in NY rather than NJ, it doesn’t really paint her in a good light.
Light/shmight. Iut’s her lawyer’s job to see she gets the best recovery. Plus, while I won’t say this always motivates forum shopping, there ar legitimate disagreements between states about what is more just. For instance, IMHO, pure comparative neglience is the most just way of allocating tort damages when the Plaintiff is partly, but not wholly, to blame for her injury. Other lawyers may disagee; certainly other state legislatures do. But I don’t see anything improper about a plaintff choosing such a state because she feels justice will best be done there.
Right. The lawyer represents the plaintiff. A lawyers job is to pursue the client’s rights zealously, within the bounds of the law, not to worry about perceptions. http://www.law.cornell.edu/ethics/ny/code/NY_CODE.HTM#7-101 And we don’t have all the facts, so any judgment would be premature.
OTOH, luring the defendant into the jurisdiction is not a new tactic, and most lawyers know that it doesn’t work. Of course, the process server could have come up with the idea on his own.
Moreover, New York law probably would not have been applied, and I’ve encountered many plaintiff’s lawyers who forget this and assume that if they file in a jurisdiction with favorable law, that law automatically gets applied. Again, we don’t know why the lawyer wanted the case to be in New York. Maybe the decision was not based on a preference for New York’s substantive law. Or maybe this is one of those special situations where New York would apply its law to a tort case involving residents of two states where the incident happened in another state.