How are jurisdiction and venue used as affirmative defenses?


Jurisdiction and venue deal with which court can hear a case and where that court is located. Choosing the proper jurisdiction and venue for any case can be difficult; attorneys usually take at least one class in law school that deals with this subject. If the chosen jurisdiction and/or venue are not right for the case, the defendant may argue, as an affirmative defense, that the court should dismiss the case because the case is in the wrong court. Having a case dismissed due to improper jurisdiction or venue is not usually fatal, but it does eat up valuable time that may count against the statute of limitations

Jurisdiction deals with whether the court has the power to hear the case. This power is usually broken down into two categories: personal jurisdiction and subject-matter jurisdiction. A court must have both kinds of jurisdiction in order to hear a case.

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Subject-matter jurisdiction is the power to hear a case that deals with a particular topic. For instance, most state courts have the power to hear personal injury or intentional torts cases, though the case may go to one division of the court or another depending on the amount of damages involved. However, these courts do not have subject-matter jurisdiction over federal bankruptcy cases or certain kinds of appeals. And no state court has subject-matter jurisdiction over cases in which one U.S. state sues another, no matter how high or low the damages are; those cases must go directly to the U.S. Supreme Court.

A court must have subject-matter jurisdiction in order to hear a case. The same court must also have personal jurisdiction over the plaintiffs and defendants in order to hear the case. Personal jurisdiction is the power to order any party to the case to do or not to do something. If the court does not have this power, it cannot try the case because it cannot require one or more of the parties to take actions like showing up in court or paying any judgment.

Whether or not a court has personal jurisdiction can get very complicated. In simplified terms, a court can get personal jurisdiction over a plaintiff or defendant in one of two ways, known as “in personam” jurisdiction and “in rem” jurisdiction. A court has in personam jurisdiction if the plaintiff lives or does business in the state, county, or other area where the court sits. A court has in rem jurisdiction if the plaintiff owns property in the state, county, or other area where the court sits, even if the plaintiff does not live or do any business there. Usually, courts prefer in personam jurisdiction over in rem jurisdiction because in personam jurisdiction allows the court to order the person to pay money judgments or to do or not do certain acts, while in rem jurisdiction allows the court only to seize the person’s property to pay off a judgment.

Once it’s clear the court has both personal jurisdiction and subject-matter jurisdiction, both the plaintiffs and defendants in personal injury cases can be assured that jurisdiction is proper. However, the case must also be tried in the proper venue. A “venue” is simply a particular place, such as a particular courthouse or courtroom, inside the jurisdiction. The jurisdiction may be right, but the venue may be wrong in some cases.

Most defendants in personal injury cases will only object to venue if, for instance, the case is already in the newspapers and it will be difficult if not impossible to find a jury that hasn’t already heard the news version of what happened. A defendant may ask to change venue in this situation in order to get an impartial jury, or one without any preconceived notions about how bad the plaintiff’s injuries are or who is responsible for them.

Often, a court will fix a venue problem by moving the case to the correct venue inside the jurisdiction, instead of dismissing the case and forcing the plaintiff to start over. If a defendant successfully argues that jurisdiction is improper, however, the court may dismiss the case. Often, these cases are dismissed without prejudice, which gives the plaintiff the opportunity to file again in the correct jurisdiction.

Copywrited article above republished with permission from the Rottenstein Law Group

NOTE: On the page, "The Importance of Jury Duty", I mentioned about being the defendant in a trial that was scheduled for February 17, 2014. That case involved a property that I owned in St. Louis County, where I had lived years previously. At the time the lawsuit was filed, I lived in St. Louis City and the Plaintiff's offices were located in St. Louis City. The lawsuit was filed in St. Louis County Circuit Court, so I filed a motion to change venue to St. Louis City Circuit Court.

My argument was that St. Louis County was an improper venue base upon rule 51.045, RSMO 508.010 and 517.061. The plaintiff argued that the venue was proper because the property was located in St. Louis County, the defendant owned the property, services were provided at the property and all evidence pertaining to the property is located in St. Louis County. The court ordered a change of venue to St. Louis City Circuit Court.

Some of the issues concerning that case were almost five years old and the statute of limitations was five years old. Changing the venue, changed the filing date to the date of transfer; a date outside the statute of limitations. The plaintiff dropped the case a week before the trial.

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