Minnesota Litigator, covering news and commentary related to Minnesota civil litigation, is authored 100% by Minnesota litigators.
Not every case (and sometimes, it seems, not any of our cases) is particularly “newsworthy,” situations arise from time to time in our cases of some interest (to litigators, probably, in particular), even if they do not forge new law or have self-evident broad importance — proverbial “war stories.”
Trying a personal injury case in Minnesota state court, plaintiff’s and defense counsel, in coordination with the trial judge, crafted a verdict form for the jury but, when it came time for the jury to deliberate, the court inadvertently gave the jury an non-final version of the verdict form that all agreed did not correspond with the facts of the case.
The case concerned a woman who lost her sense of smell (anosmia) as a result of a head inury, an injury that had no ongoing pain. But the verdict form asked the jurors the question “What sum of money will compensate plaintiff for future pain, suffering, and disability…” when all had agreed that the injury did not involve pain.
The jury came back with a verdict and monetary award for the plaintiff. The Court then realized the error. Before dismissing the jurors (but after reading the verdict and discussing the issue with counsel), the judge swapped out verdict form with the correct one that asked “What sum of money will compensate plaintiff for disability, embarrassment, and emotional distress …” The judge instructed the jurors to return to deliberations to fix the oversight. The jury came back with a verdict and award for the plaintiff (for the exact same amount of money).
Moral: Legislation is said to be like sausage-making, an unappetizing process that can yield a tasty outcome (if one can manage to block out thoughts of the manufacturing). The process and dynamic of civil litigation is a world apart from legislation, but it isn’t always pretty either. Playing whac-a-mole is not particularly elegant or graceful.
The inaugural post of “Tales from the Trenches:”
In this episode, a rare instance of “tag jurisdiction.”
United States law regarding personal jurisdiction is not a tidy body of law. It is one of many areas of law where, it seems, an ideological rift has resulted in a somewhat fissured and fragmented foundation. Open-ended values like “fair play and substantial justice” have formed the foundation of this area of law for over fifty years. While these concepts sound attractive and desirable to all, their implementation in particular cases is not at all obvious (the U.S. Supreme Court’s most recent glosses: Goodyear and McIntyre Machinery).
Assuming a person has no on-going “systematic” ties to the state, how “fair” or “just” is it to serve a summons and complaint on a Virginia resident when she comes to Minnesota to do some shopping and visit friends — just passing through?
According to the U.S. Supreme Court in Burnham v Superior Court (1990), “Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State.”
In the Burnham opinion, Justice Scalia cites and quotes an 1855 Georgia Supreme Court decision, “Can a citizen of Alabama be sued in this State, as he passes through it? Undoubtedly he can.”
So, while one might argue whether “tag jurisdiction” is consistent with one’s personal sense of “fair play and substantial justice,” it would seem that it clearly comports with “the Supremes” sense of it — which is all that matters, of course, in litigation in our federal courts.
Finally, in recently confronting this situation, I confronted the question of what, exactly, to serve on “the Minnesota passing-through defendant” who was already served in another state with our Minnesota state court summons and complaint. Represented by counsel, she then removed the lawsuit against her and others to federal court in the District of Minnesota, and promptly moved to dismiss for lack of personal jurisdiction.
Explaining to the U.S. District Court the need for a federal summons for a state court complaint (removed to federal court and with a federal case number) took some time (when we had a matter of hours) but “service of process” means serving a summons and complaint and this is what we had — a state court complaint for a federal lawsuit. An alternative, I suppose, if time would have permitted, would have been to make a brand new complaint, with federal caption, and then seek to consolidate it with the pending action.
Stay tuned. There may be more to this tale.
[Update (October 13, 2011): This trench tale, like many litigators’ tales, is in the process of being concluded with an exchange of paperwork and money, and legal questions raised will sit unresolved for now or forever.]