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Message 16 in thread
From: Ken Smith (forget@it.com)
Subject: Re: Internet free speech legal question
(snip)
Children, children, children!!!
Well, yes, the whole thing *is* childish, but I can guarantee you I have proof
that the hostilities weren't begun by me. Regardless, this is a legal matter.
My opponent evidently believes that her default judgment, vacated by the
Supreme Court of Minnesota, cert denied, on jurisdictional grounds, is still
valid and can be enforced in all other states. My guess is, from her own
comments, that she is waiting for the US Supreme Court to visit the question of
whether online comments or email can hold the author liable to be haled into
court anywhere in the US--or perhaps the globe. If yes, then she hopes to make
me litigate the question of person jurisdiction all over again. Something like
that. But that, IMO is a vain hope. The US Supreme Court has already done
its work on the question of personal jurisdiction in World-wide Volkswagen
Corp. and Burger King. Burger King, by the way, followed the anomalous Calder
decision which has caused so much difficulty in the state courts. In Burger
King, the Supreme Court set down its guidelines for in personam jurisdiction,
which are pretty much in line with with traditional views on the same. In
other words, a defendant must have substantial contact with the forum state or
do something to make him anticipate that he can be subjected to the
jurisdiction of the courts of that state, some type of purposeful targeting or
availment. I don't believe that the US Supreme Court has any intention of
giving online activity any special consideration with regard to the question of
in personam jurisdiction because then it must override its own views upon the
question of "fairness" that it set forth in Volkswagen. Not only that, but if
it ruled that online activity could subject someone to jurisdiction anywhere in
the US without any of the restrictions of Burger King, then it would pretty
much doom US citizens to have to litigate anywhere in the world. This is a
preposterous outcome and the chilling effect it would have on Freedom of Speech
is only too obvious. Any such ruling of the US Supreme Court would be
unconstitutional. Period. In the present case, matters are complicated by the
ruling of the US Supreme court on the doctrine of res judicata:
Cf. Baldwin, 283 U.S. at 525-26 ("Public policy dictates that there be an end
of litigation; that those who have contested an issue shall be bound by the
result of the contest; and that matters once tried shall be considered forever
settled as between the parties. We see no reason why this doctrine should not
apply in every case where one voluntarily appears, presents his case and is
fully heard, and why he should not, in the absence of fraud, be thereafter
concluded by the judgment of the tribunal to which he has submitted his
cause.").
The Minnesota Supreme Court squarely decided the issues of lack of personal
jurisdiction and the concomitant lack of any legal basis upon which the Alabama
court could have entered the judgment that Griffis sought to enforce. Griffis
v. Luban, 646 N.W.2d 527 (Minn. 2002), and Order dated September 17, 2002.
The decisions of the Minnesota Supreme Court are binding upon Griffis
personally as collateral estoppel and res judicata. In American Surety Company
v. Baldwin, 287 U.S. 156, 166 (1932), the United States Supreme Court held:
The principles of res judicata apply to questions of jurisdiction as well as to
other issues. The principles of res judicata may apply, although the
proceeding was begun by motion. Thus, a decision in a proceeding begun by
motion to set aside a judgment for want of jurisdiction is res judicata,
and precludes a suit to enjoin enforcement of the judgment."
The US Supreme Court declined to hear the matter. And, as far as I know, the
buck stops there.
"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html
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Children, children, children!!!
Well, yes, the whole thing *is* childish, but I can guarantee you I have
proof
that the hostilities weren't begun by me. Regardless, this is a legal
matter.
My opponent evidently believes that her default judgment, vacated by the
Supreme Court of Minnesota, cert denied, on jurisdictional grounds, is still
valid and can be enforced in all other states.
She may be right on that count. You didn't contest jurisdiction in Alabama,
but instead relied on MINNESOTA not to enforce the judgment.
The US Supreme Court declined to hear the matter. And, as far as I know, the
buck stops there.
The buck stops with her having a judgment against you in Alabama that the court
in Minnesota refused to acknowledge.
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Subject: Re: Internet free speech legal question
From: lemoderncaveman@aol.com (LeModernCaveman)
Date: 2/8/2004 12:25 AM Pacific Standard Time
Message-id: <20040208032556.11576.00001550@mb-m12.aol.com>
Children, children, children!!!
She may be right on that count. You didn't contest jurisdiction in Alabama,
but instead relied on MINNESOTA not to enforce the judgment.
And what was wrong with that? Since the question of in personam jurisdiction
was not litigated in Alabama, it was preserved for the Minnesota courts, the
final outcome being binding upon both parties.
Griffis subjected herself to the jurisdiction of the MN courts by litigating
there. If you think otherwise, explain why. The courts of Alabama extend full
faith and credit to the decisions of the courts of Minnesota. See, e.g., Ex
parte Lyon Fin. Serv., Inc., 775 So.2d 181, 183 (Ala. 2000).
The US Supreme Court declined to hear the matter. And, as far as I know,
the
The buck stops with her having a judgment against you in Alabama that the
court
in Minnesota refused to acknowledge.
Are you saying that the Alabama court doesn't have to recognize the judgment of
the Supreme Court of MN? If you believe that, you had better look at the
Alabama Supreme Court ruling in Omega Leasing Corp. v. Movie Gallery, Inc.,
2003 Ala. Lexis 22. In that case, the Alabama Supreme Court held that the
issue of personal jurisdiction had been fully and fairly litigated in Virginia,
based upon a Virginia district court's "implicit" ruling that it had personal
jurisdiction over an Alabama defendant and the Alabama Supreme Court's
statement (in an order denying review of the lower court's decision) that "Upon
review of the record in this case and consideration of the argument submitted
in support of and in opposition to the granting of an appeal, the Court is of
opinion there is no reversible error in the judgment complained of." The
Virginia judgment therefore was binding upon the same parties in Alabama.
Only, in this instance, the Minnesota court ruled that an Alabama court did
*not* have jurisdiction over a Minnesota resident.
Griffis has had far more consideration of the jurisidictional questions in the
Minnesota courts than Movie Gallery received in the Virginia courts. Plainly,
the Alabama Supreme Court would consider Griffis bound by the decision of the
Minnesota Supreme Court. Any other court would take the same position.
"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html
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On 08 Feb 2004 08:25:56 GMT, lemoderncaveman@aol.com (LeModernCaveman)
in misc.legal, wrote the following:
Children, children, children!!!
Well, yes, the whole thing *is* childish, but I can guarantee you I have
proof
that the hostilities weren't begun by me. Regardless, this is a legal
matter.
My opponent evidently believes that her default judgment, vacated by the
Supreme Court of Minnesota, cert denied, on jurisdictional grounds, is still
valid and can be enforced in all other states.
She may be right on that count. You didn't contest jurisdiction in Alabama,
but instead relied on MINNESOTA not to enforce the judgment.
The buck stops with her having a judgment against you in Alabama that the court
in Minnesota refused to acknowledge.
A clarification: I find the reliance upon
Omega Leasing Corp. v. Movie Gallery, Inc.
interesting.
This case actually _supports_ Alabama's right to extending _in personam_
jurisdiction over defaulting defendants, not, as proposed, that the
decision rejected their own judgments because another Court in another
state did not agree with their jurisdiction determination.
In this case, the Alabama Supreme Court ruled the Jefferson Circuit
Court erred when it held that the original issue of personal
jurisdiction was not "fully and fairly litigated" in Virginia.
Rather, the Alabama Supreme Court determined Virginia HAD fully
adjudicated the "issue of personal jurisdiction" in the initial action
over defendant Movie Gallery, who was in default for not responding.
Alabama found the _in personam_ question was sufficiently litigated by
the Virginia courts during the initial action, and thus the Virginia
judgment was entitled to full faith and credit against Movie Gallery in
the State of Alabama.
HTML version of the case at
http://www.barw.com/publica2.cfm?ID=2112.
Thus it was with Griffis v. Luban: the matter was fully and fairly
litigated in Alabama in the initial action. The Defendant had plenty of
opportunity to contest jurisdiction in Alabama and chose not to do so.
Simply because Minnesota issue its opinion of _in personam_ jurisdiction
from ITS point of view _after judgment was rendered in Alabama_ does not
mean that Alabama's original holding of _in personam jurisdiction_ was
incorrect*. Courts in Alabama are not necessarily bound by Minnesota's
ruling, but would be if the US Supreme Court had issued a similar
ruling.
However, since the US Supreme Court, by pet. cert. denied, did not rule
one way or the other on the issue of _in personam_ jurisdiction based
upon Internet communications in Griffis v. Luban, then that issue is
still not resolved.
* On point, the Minnesota Supreme Court actually noted that Alabama had
fulfilled the test for in personam jurisdiction in part 1 of its test:
"Because Alabama provides jurisdiction as broad as due process will
allow, the first requirement is subsumed by the second, and we need only
determine whether Alabamas exercise of personal jurisdiction over Luban
was consistent with due process."
It was Minnesota's _opinion_ that the contacts by which Alabama extended
in personam jurisdiction were not sufficient as they interpreted the
comments should have been expressly aimed to Alabama only websites or
groups. As such they stated:
"While the record supports the conclusion that Lubans statements were
intentionally directed at Griffis, whom she knew to be an Alabama
resident, we conclude that the evidence does not demonstrate that
Lubans statements were 'expressly aimed' at the state of Alabama."
http://www.securitymanagement.com/library/Griffis_Luban0703.pdf
Since the issue of "targeting" a Plaintiff in defamation cases is a test
of Calder v. Jones, it would then be incumbent upon the US Supreme
Court, who rendered _Calder_, to decide if the reading by the MN Supreme
Court is correct or not. However, since they chose not to review
Griffis v. Luban, then it is assumed in most legal circles they are
awaiting other cases (possibly Gutnick v. Dow-Jones, the Australian
case), to make their pronouncement on the matter.
--
Katherine Griffis-Greenberg, J.D.
"Error of opinion may be tolerated where reason is
left free to combat it."
(Thomas Jefferson, First Inaugural Address, 1801)
DISCLAIMER:
Not a practicing attorney, and no attorney-client relationship
is created. This response is for discussion purposes only. It
isn't meant to be legal advice. If you wish legal advice, seek
out an attorney in your own state who is familar with your
state's laws and applications thereof.
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Holy COW! I just familiarized myself with the story of these 2
posters, Marianne Luban v. Katherine Griffis.
Thank you for giving us lawyers one of the first appellate decisions
applying defamation law to Usenet posts. I always wondered about such
questions when I was a law student, years ago. You 2 spent thousands
of dollars of your own money to answer them for me. So thanks.
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Subject: Re: Internet free speech legal question
From: Katherine Griffis-Greenberg egylist@griffis-consulting.com
Date: 2/8/2004 5:13 AM Pacific Standard Time
Message-id:
My opponent evidently believes that her default judgment, vacated by the
Supreme Court of Minnesota, cert denied, on jurisdictional grounds, is
still
valid and can be enforced in all other states.
court
A clarification: I find the reliance upon
Omega Leasing Corp. v. Movie Gallery, Inc.
interesting.
This case actually _supports_ Alabama's right to extending _in personam_
jurisdiction over defaulting defendants, not, as proposed, that the
decision rejected their own judgments because another Court in another
state did not agree with their jurisdiction determination.
You just don't get it--hardly anything new. Movie Gallery was not simply a
case of
a defaulting defendant who did nothing. Movie Gallery APPEALED in Virginia and
THAT
Virginia opinion on personal jurisdiction was the one upheld in Alabama--over
an Alabama resident. THAT was the opinion that the Supreme Court of Alabama
upheld. This case has absolutely nothing to do with "Alabama's right to
extending in personam jurisdiction over defaulting defendants". It has
EVERYTHING to do with Alabama accepting the rulings of other courts when it
comes to personal jurisdiction.
In this case, the Alabama Supreme Court ruled the Jefferson Circuit
Court erred when it held that the original issue of personal
jurisdiction was not "fully and fairly litigated" in Virginia.
Right.
Rather, the Alabama Supreme Court determined Virginia HAD fully
adjudicated the "issue of personal jurisdiction" in the initial action
over defendant Movie Gallery, who was in default for not responding.
Alabama found the _in personam_ question was sufficiently litigated by
the Virginia courts during the initial action, and thus the Virginia
judgment was entitled to full faith and credit against Movie Gallery in
the State of Alabama.
HTML version of the case at
http://www.barw.com/publica2.cfm?ID=2112.
Thus it was with Griffis v. Luban: the matter was fully and fairly
litigated in Alabama in the initial action. The Defendant had plenty of
opportunity to contest jurisdiction in Alabama and chose not to do so.
And didn't have to. If you thought the matter of jurisdiction was "fully and
fairly litigated" in Alabama, then why did you bother to litigate the question
for nearly five years in Minnesota?
Can you explain that? If the Minnesota Supreme Court thought that the matter
had been fully and fairly litigated in Alabama, why in the world did it rule in
my favor? I'll tell you. Because the question of in personam jurisdiction had
NEVER been litigated in Alabama or even raised. I didn't do what Movie Gallery
did. I didn't appeal to the Alabama higher court, complaining that the lower
one didn't have jurisdiction over me. Had I done that then-- GUESS WHAT--the
question of personal jurisdiction would have been litigated there and I
wouldn't have stood any better chance in Minnesota on that question than Movie
Gallery did in Alabama, its own state.
Simply because Minnesota issue its opinion of _in personam_ jurisdiction
from ITS point of view _after judgment was rendered in Alabama_ does not
mean that Alabama's original holding of _in personam jurisdiction_ was
incorrect*. Courts in Alabama are not necessarily bound by Minnesota's
ruling, but would be if the US Supreme Court had issued a similar
ruling.
Can somebody straighten out this woman? She just doesn't get it--and is never
going to believe the truth coming from me.
However, since the US Supreme Court, by pet. cert. denied, did not rule
one way or the other on the issue of _in personam_ jurisdiction based
upon Internet communications in Griffis v. Luban, then that issue is
still not resolved.
YOU LOST! Get that through your head. You can't wait for any ephemeral US
Supreme Court ruling "on Internet communications" to help you now. The issue
*is* resolved--for you. The Alabama injunction was ruled to be moot, to have
no legal basis for being issued. You may think that it is just sitting there
waiting for some ruling to make it enforceable, but the matter is res judicata.
You have already tried to enforce it and couldn't. I don't have to go back
into court with you every time the law changes because the US Supreme Court,
itself, said there must be an end to litigation. Cf. Baldwin, 283 U.S. at
525-26 ("Public policy dictates that there be an end of litigation; that those
who have contested an issue shall be bound by the result of the contest; and
that matters once tried shall be considered forever settled as between the
parties. We see no reason why this doctrine should not apply in every case
where one voluntarily appears, presents his case and is fully heard, and why he
should not, in the absence of fraud, be thereafter concluded by the judgment of
the tribunal to which he has submitted his cause.").
* On point, the Minnesota Supreme Court actually noted that Alabama had
fulfilled the test for in personam jurisdiction in part 1 of its test:
"Because Alabama provides jurisdiction as broad as due process will
allow, the first requirement is subsumed by the second, and we need only
determine whether Alabamas exercise of personal jurisdiction over Luban
was consistent with due process."
Do you see those last two words "due process". This refers to the 14th
Amendment
to our Constitution. Due process was *not* found in this case. The lower
court of Alabama didn't have to rule on personal jurisdiction in the issuing of
a default judgment or even consider it. That court knew perfectly well that I
could always contest that in my own state--because the issue would be
preserved, regardless.
It was Minnesota's _opinion_ that the contacts by which Alabama extended
in personam jurisdiction were not sufficient as they interpreted the
comments should have been expressly aimed to Alabama only websites or
groups. As such they stated:
"While the record supports the conclusion that Lubans statements were
intentionally directed at Griffis, whom she knew to be an A
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Subject: Re: Internet free speech legal question
From: Katherine Griffis-Greenberg egylist@griffis-consulting.com
Date: 2/8/2004 5:13 AM Pacific Standard Time
Message-id: <u4bc20pnc0pqi4279l0si6bj70qomrfpa3@4ax.com>
(snip)
Simply because Minnesota issue its opinion of _in personam_ jurisdiction
from ITS point of view _after judgment was rendered in Alabama_ does not
mean that Alabama's original holding of _in personam jurisdiction_ was
incorrect*.
The Alabama lower court is bound by the Minnesota Supreme Court decision under
the Full Faith and Credit clause--because the question of in personam
jurisdiction was fully litigated there. Any other state court is also obligated
to recognize it. It is a valid defense, federally and in civil court to
default and to collaterally attack the judgment of the forum state on the basis
of lack of in personam jurisdiction of the issuing court--in one's own state.
And, where does the judgment of the Alabama lower court say that it had
undertaken a sua sponte investigation as to whether it had jurisdiction over me
in order to issue a default judgment? Nowhere. If it had, I would have had
to have been notified of the same. In fact, no record of the proceedings in
Alabama exists at all--except the judgment. It is void.
Supreme Court of Alabama, Bank of America Corp. v. Addie L. Edwards (2003)
".A judgment is void only if the court rendering it lacked jurisdiction of the
subject matter or of the parties, or if it acted in a manner inconsistent with
due process....A judgment entered against a defendant in the absence of
personal jurisdiction is void.... Satterfield v. Winston Industries, Inc., 553
So. 2d 61 (Ala. 1989)."
"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html
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marianneluban@aol.comnospam (MarianneLuban) wrote in message news:<20040209002816.11625.00001557@mb-m12.aol.com>...
The Alabama lower court is bound by the Minnesota Supreme Court decision under
the Full Faith and Credit clause--because the question of in personam
jurisdiction was fully litigated there. Any other state court is also obligated
to recognize it.
You're both wrong. I suggest you both stick to your day jobs.
The Alabama court is not "bound" or "obligated" to obey the Minnesota
court. It would be common sense for any actual litigator, which
apparently neither of you are, that one state court cannot "obligate"
a court in another state to do anything. However, the Minnesota court
has independently determined for itself the federal constitutional
issue of whether allowing the Alabama court to extend its personal
jurisdiction to Luban would violate the Due Process clause. The
primary reason the Alabama court would likely respect the Minnesota
court's ruling is judicial comity, not the Full Faith and Credit
Clause.
It is a valid defense, federally and in civil court to
default and to collaterally attack the judgment of the forum state on the basis
of lack of in personam jurisdiction of the issuing court--in one's own state.
And, where does the judgment of the Alabama lower court say that it had
undertaken a sua sponte investigation as to whether it had jurisdiction over me
in order to issue a default judgment? Nowhere. If it had, I would have had
to have been notified of the same. In fact, no record of the proceedings in
Alabama exists at all--except the judgment. It is void.
Supreme Court of Alabama, Bank of America Corp. v. Addie L. Edwards (2003)
".A judgment is void only if the court rendering it lacked jurisdiction of the
subject matter or of the parties, or if it acted in a manner inconsistent with
due process....A judgment entered against a defendant in the absence of
personal jurisdiction is void.... Satterfield v. Winston Industries, Inc., 553
So. 2d 61 (Ala. 1989)."
"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html
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Subject: Re: Internet free speech legal question
From: charlesbreitel@yahoo.com (cbreitel)
Date: 2/9/2004 3:43 AM Pacific Standard Time
Message-id: <74317df6.0402090343.ee9c6c4@posting.google.com>
under
obligated
You're both wrong. I suggest you both stick to your day jobs.
The Alabama court is not "bound" or "obligated" to obey the Minnesota
court. It would be common sense for any actual litigator, which
apparently neither of you are, that one state court cannot "obligate"
a court in another state to do anything. However, the Minnesota court
has independently determined for itself the federal constitutional
issue of whether allowing the Alabama court to extend its personal
jurisdiction to Luban would violate the Due Process clause. The
primary reason the Alabama court would likely respect the Minnesota
court's ruling is judicial comity, not the Full Faith and Credit
Clause.
Can you explain why? I thought "judicial comity" pertained to courts outside
the United States territorially. Judgments of the courts of foreign nations
are not entitled to full faith and credit in courts of the United States. U.S.
Const. Art. IV, 1; A.S.C.A. 43.1702.
Judgments of the courts of foreign nations may be recognized in America under
the doctrine of comity, by which a nation recognizes in its territory the legal
acts of another nation with due regard both to international duty and
convenience and to the rights of persons protected by its laws.
Recognition of any particular judgment of a foreign court depends on wide
ranging local policy considerations, including whether the foreign proceeding
comports with due process requirements. "Full faith and credit" is a term of
art referring to a specific provision under the United States Constitution. (2)
The Constitution, as supplemented by legislation, (3) does not apply to
judgments of foreign countries. Aetna Life ins. Co. v. Tremblay, 223 U.S. 185
(1922).
"[t]he extent to which the law of one nation. ..shall be allowed to operate
within the dominion of another nation, depends on. ..'the comity of nations. ,
'Comity' in the legal sense, is neither a matter of absolute obligation. ..nor
of mere courtesy and good will. ...It is the recognition which one nation
allows within its territory to the legislative, executive, or judicial acts of
another nation, having due regard both to international duty and convenience,
and to the rights [13ASR2d24] of its own citizens,
or of other persons who are under the protection of its laws."
It is a valid defense, federally and in civil court to
basis
And that is why I believe the courts of Alabama (and other states) would be
required to honor the ruling of the Supreme Court of Minnesota--because the
question of in personam jurisdiction was preserved for it--and it was fully and
fairly litigated there. Full Faith & Credit Doctrine:
"Full faith and credit requires that judicial proceedings shall have the same
full faith and credit in every court within the U.S. as they have by law or
usage in the courts of such state from which they are taken. It requires every
state to give a judgment at least the res judicata effect which the judgment
would be accorded in the state which rendered it. (Durfee v. Duke, 375 U.S.
106 (1963)". And that was what I was talking about--the doctrine of res
judicata.
"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html
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MarianneLuban wrote:
The Alabama lower court is bound by the Minnesota Supreme Court decision under
the Full Faith and Credit clause--because the question of in personam
jurisdiction was fully litigated there. Any other state court is also obligated
to recognize it.
Wrong. Minnesota found that the Alabama court didn't find in personam
jurisdiction. It doesn't mean that the Alabama court COULDN'T later
find
in personam jurisdiction.
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Subject: Re: Internet free speech legal question
From: "Arthur L. Rubin" ronnirubin@sprintmail.com
Date: 2/9/2004 5:18 PM Pacific Standard Time
Message-id: <4028315F.D472910F@sprintmail.com>
MarianneLuban wrote:
under
obligated
Wrong. Minnesota found that the Alabama court didn't find in personam
jurisdiction. It doesn't mean that the Alabama court COULDN'T later
find
in personam jurisdiction.
Then explain how it can make me litigate the question of in personam
jurisdiction all over again when the matter was fully litigated in Minnesota.
You had better take a look at Omega Leasing before you answer. Or do you
suppose an Alabama Supreme Court decision just means diddly in that state?
That was where a decision on jurisdiction in Virginia was binding on BOTH
parties in Alabama. And read Durfee v. Duke very carefully. It is you who are
wrong, I'm afraid.
"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html
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his opinion explains the entire matter quite well. I am snipping some of the
facts of the case, otherwise it's too long to post here:
FIRSTAR BANK MILWAUKEE, NA, ) Appeal from
f/k/a First Bank Southeast, NA, ) Circuit Court
) Cook County.
Plaintiff-Appellee, )
)
v. )
)
SIDNEY COLE and LOIS COLE, ) Honorable
) Glynn Elliott, Jr.,
Defendants-Appellants. ) Judge Presiding.
JUSTICE RAKOWSKI delivered the opinion of the court:
Defendants Sidney and Lois Cole appeal an order from the Cook County
circuit court denying their motion to set aside the registration of a money
judgment entered against Sidney Cole in the circuit court of Racine County,
Wisconsin. Defendants contend the Racine County court did not have personal
jurisdiction over Sidney and that the Cook County circuit court erred in
refusing to set aside the judgment on that basis.
The issue is whether the doctrine of res judicata bars defendants from
challenging the personal jurisdiction of the Racine County court. We conclude
that it does and now affirm.
In 1994, plaintiff First Bank Southeast filed an action in the circuit
court of Racine County, Wisconsin, against Sidney and
Lois Cole to foreclose on a mortgage executed by Sidney Cole.
(snip)
As part of the court's findings of fact and conclusions of law, also dated
February 23, 1995, the court found that it had jurisdiction over the parties
and the property, and that the summons and complaint were served by publication
upon defendants.
The judgment was subsequently registered in the Cook County circuit court.
Defendants argued that the Racine County court never had proper jurisdiction
over the parties and that it was without jurisdiction to enter judgment. The
Cook County circuit court rejected defendants' argument and refused to set
aside
registration of the judgment. The circuit court held that the doctrine of res
judicata barred defendants from relitigating the
issue of the Racine County court's jurisdiction over defendants.
The purpose of the Uniform Enforcement of Foreign Judgments
Act (the Act) (735 ILCS 5/12-652 (West 1994)) is to implement the full faith
and credit clause of the United States Constitution (U.S. Const., art. IV, 1)
and to facilitate the enforcement of
interstate judgments by providing a summary procedure through which a party in
whose favor a judgment has been rendered may enforce the judgment expeditiously
in any jurisdiction where the
judgment debtor is found.
(authorities snipped)
"Under the doctrine of full faith and credit, the forum court will not rehear a
case on its merits because the judgment is res
judicata." All Seasons Industries, Inc. v. Gregory, 174 Ill. App. 3d 700, 703
(1988). Under principles of res judicata, the
nature and amount of the judgment, together with all defenses that could have
been raised in the original trial court, are
foreclosed. Falcon v. Faulkner, 209 Ill. App. 3d 1, 13 (1991);
Dawson v. Duncan, 144 Ill. App. 3d 532, 537 (1986). The exception to this rule
is that a circuit court may inquire into
the defenses of lack of jurisdiction in the foreign court or fraud in the
procurement of the judgment, provided those issues
have not been litigated in the foreign court. Morey Fish Co. v.Rymer Foods,
Inc., 158 Ill. 2d 179, 186-87 (1994) (holding that
full faith and credit must be given to a foreign judgment when the issue of
jurisdiction has been litigated and decided in the rendering court);
(authorities snipped)
However, where a defendant has never
submitted to the jurisdiction of the court for the limited purpose of
challenging jurisdiction, that defendant need not
abide by that court's determination of the issue. Morey Fish Co., 158 Ill. 2d
at 189, citing Baldwin, 283 U.S. at 524-26, 75
L. Ed. at 1247, 51 S. Ct. at 517-18; see Klumpner v. Klumpner, 182 Ill. App. 3d
22 (1989) (holding that the registering court
could inquire into the issue of jurisdiction where the defendant refused to
appear at the hearing in the rendering court and did
not litigate the issues of res judicata and collateral estoppel).
Although an Illinois court may inquire into jurisdiction before
registering a foreign judgment, it cannot do so under res
judicata if that issue has already been litigated in the rendering court.
(authorities snipped) Thus, when a defendant claims that a foreign court lacks
personal or subject matter jurisdiction, the trial court must conduct a
two-step analysis.
First, the trial court must look to the record of the foreign court to
determine if that court ruled on the issue of personal
jurisdiction. If the foreign court did not rule on the issue, the trial court
may then perform the second step in the analysis,
which is to examine the jurisdiction of the foreign court. Where a decree is
silent as to the court's jurisdiction, there still is
a strong presumption of jurisdiction.(authorities snipped) However, if the
issue of jurisdiction has been litigated and decided in the foreign court, the
registering court is compelled to accord full faith and credit to that ruling.
(authorities snipped)
In the instant case, the issue of personal jurisdiction was raised as an
affirmative defense and rejected in the circuit court of Racine County.
Defense counsel appeared at the hearing on plaintiff's motion for summary
judgment but did not file anything in opposition to the motion. After the
circuit court granted summary judgment in favor of plaintiff, defendants did
not move for rehearing or appeal the issue of jurisdiction to the
Wisconsin Appellate Court. "A party cannot be permitted to merely file a
special appearance, challenge that court's
jurisdiction, and expect the lawsuit to hang in limbo! A reasonable expedition
of the administration of justice cannot be
so thwarted." Ross & Chatterton Law Offices v. Lewis, 109 Ill. App. 3d 856,
858 (1982). Accordingly, because defendants did not pursue their remedies in
Wisconsin, they cannot now come to
Illinois to relitigate the issue of jurisdiction.
(authorities snipped).
Defendants had their day in court with respect to jurisdiction at the
summary judgment hearing. Public policy
dictates that they be bound by the result.
For the above-stated reasons, the judgment of the circuit court of Cook
County is affirmed.
Affirmed.
TULLY and McNULTY, JJ., concur.
All these elements are present in the matter of Griffis v. Luban. Luban did
not contest jurisdiction in Alabama, nor made any response. A default judgment
was registered in Minnesota and the registering court determined, fr
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marianneluban@aol.comnospam (MarianneLuban) wrote in message news:<20040209151300.12686.00001724@mb-m29.aol.com>...
Can you explain why? I thought "judicial comity" pertained to courts outside
the United States territorially.
[snip]
And that was what I was talking about--the doctrine of res
judicata.
You misunderstand judicial comity, and you didn't mention res judicata
until now. I agree that res judicata is an additional good argument.
My instinctive response to the arguments both of you were raising was
to automatically reject the notion that Alabama courts are "obligated"
to do anything. They absolutely are not. Our Constitution preserves
the notion of states as sovereign entities over which only the
Constitution reigns supreme, and the federal government in specific
circumstances not relevant here. A Minnesota court cannot compel an
Alabama court to do anything. A federal court can compel Alabama
courts, of course, Chief Justice Roy's rantings notwithstanding. But
that's not at issue here.
Under general principles of common law, which the Alabama court
follows, one could certainly persuade the Alabama court to VOLUNTARILY
accept the Minnesota ruling. This would likely occur under the
doctrines of judicial comity, and as you point out, res judicata. They
are both "doctrines", over which the court has discretion to invoke or
reject at will. They are not "obligations". And judicial comity is not
a doctrine which only applies to international issues. Per a recent
Minnesota decision, "Judicial comity is the respect a court of one
state or jurisdiction shows to another state or jurisdiction in giving
effect to the other's laws and judicial decisions." Medtronic, Inc. v.
Advanced Bionics Corp., 630 N.W.2d 438 (Minn. App. 2001); see also
Swigert v. Swigert, 553 So.2d 607 (Ala. Civ. App. 1989) (mentioning
judicial comity as a factor "essential to the proper and orderly
administration of the law").
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MarianneLuban wrote:
Then explain how it can make me litigate the question of in personam
jurisdiction all over again when the matter was fully litigated in Minnesota.
It wasn't fully litigated in Minnesota.
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Subject: Re: Internet free speech legal question
From: "Arthur L. Rubin" ronnirubin@sprintmail.com
Date: 2/10/2004 12:03 PM Pacific Standard Time
Message-id: <402938F6.359D69DF@sprintmail.com>
MarianneLuban wrote:
Minnesota.
It wasn't fully litigated in Minnesota.
What do you mean? It was litigated all the way to the Supreme Court of
Minnesota, cert. denied. How much more "fully litigated" can you get than
that?
"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html
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MarianneLuban wrote:
What do you mean? It was litigated all the way to the Supreme Court of
Minnesota, cert. denied. How much more "fully litigated" can you get than
that?
Minnesota doesn't have jurisdiction for the question of whether Alabama
had jurisdiction -- all they SAID is that the Alabama courts didn't
FIND jurisdiction.
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"Arthur L. Rubin" <ronnirubin@sprintmail.com> wrote in message news:<4028315F.D472910F@sprintmail.com>...
MarianneLuban wrote:
Wrong. Minnesota found that the Alabama court didn't find in personam
jurisdiction. It doesn't mean that the Alabama court COULDN'T later
find
in personam jurisdiction.
This may sound like mere semantics but it's not: Minnesota did not
find that "Alabama didnt't find in personam jurisdiction." Minnesota
merely found that for purposes of enforcing an Alabama judgment in
Minnesota court, the Alabama court didn't HAVE in personam
jurisdiction. Also, in personam jurisdiction had to have existed at
the time the original defamation complaint was filed in Alabama court.
The Alabama court cannot "later" find in personam jurisdiction if, for
example, Luban decided to move to Alabama today.
Bear in mind that the Alabama judgment is still valid in Alabama, and
technically any state other than Minnesota. To completely render the
Alabama judgment void, Luban would have to have Alabama legal counsel
file a declaratory action or something similar, asking an Alabama
court to recognize the Minnesota ruling and vacate and declare void
the default judgment.
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Subject: Re: Internet free speech legal question
From: charlesbreitel@yahoo.com (cbreitel)
Date: 2/10/2004 2:29 PM Pacific Standard Time
Message-id: <74317df6.0402101429.37abaa5f@posting.google.com>
This may sound like mere semantics but it's not: Minnesota did not
find that "Alabama didnt't find in personam jurisdiction." Minnesota
merely found that for purposes of enforcing an Alabama judgment in
Minnesota court, the Alabama court didn't HAVE in personam
jurisdiction. Also, in personam jurisdiction had to have existed at
the time the original defamation complaint was filed in Alabama court.
The Alabama court cannot "later" find in personam jurisdiction if, for
example, Luban decided to move to Alabama today.
Nor can any other court. And a change in the law doesn't affect the fact that
the question of in personam jurisdiction is res judicata.
Bear in mind that the Alabama judgment is still valid in Alabama, and
technically any state other than Minnesota. To completely render the
Alabama judgment void, Luban would have to have Alabama legal counsel
file a declaratory action or something similar, asking an Alabama
court to recognize the Minnesota ruling and vacate and declare void
the default judgment.
I agree with you that a foreign court cannot actually vacate a judgment of an
issuing court. But, still, "A judgment 'is void only if the court that
rendered it lacked jurisdiction of the subject matter, or of the parties, or if
it acted in a manner inconsistent with due process of law.'"
The lack of jurisdiction over "the party" has already been decided. And, as
you state, Alabama cannot decide that question again. You seem to imply that,
once I leave Minnesota, the AL injunction can follow me around wherever I go
and that I am bound to obey it. Correct me if I read you wrong. No, I have
not asked the AL court to vacate its own judgment but I am not sure that it
isn't already "void".
My view is that an injunction, which is dependant upon having jurisdiction over
the party against whom it was issued, must be enforceable in order to be *good*
anywhere. In other words, it has to have "teeth". If one seeks to enforce it
somewhere and the defense of "lack of in personam jurisdiction" remains the
same and res judicata precludes that issue from being litigated again in any
jurisdiction (because the Supreme Court has opined that a question fully
litigated must be given the same res judicata effect in all jurisdictions),
what good is such an injunction if a motion to "show cause" is going to be
defeated at the outset by issue preclusion--even in Alabama, itself? If one is
collaterally estopped from attempting to obtain personal jurisdiction over the
same party in the same matter, once that has been decided, how does one get
jurisdiction to enforce the injunction of one state court in another state?
"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html
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"Arthur L. Rubin" <ronnirubin@sprintmail.com> wrote in message news:<402948D1.AF03F5A5@sprintmail.com>...
MarianneLuban wrote:
Minnesota doesn't have jurisdiction for the question of whether Alabama
had jurisdiction -- all they SAID is that the Alabama courts didn't
FIND jurisdiction.
That makes no sense. Minnesota had no choice but to determine whether
Alabama had personal jurisdiction, and it did so. The Minnesota court
did a full analysis of whether the Alabama extension of personal
jurisdiction complied with the U.S. Constitution's Due Process clause,
and ruled that it did not. The court did a lot more than simply remark
that "the Alabama courts didn't find jurisdiction."
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On 10 Feb 2004 22:51:12 -0800, charlesbreitel@yahoo.com (cbreitel) in
misc.legal, wrote the following:
"Arthur L. Rubin" <ronnirubin@sprintmail.com> wrote in message news:<402948D1.AF03F5A5@sprintmail.com>...
That makes no sense. Minnesota had no choice but to determine whether
Alabama had personal jurisdiction, and it did so. The Minnesota court
did a full analysis of whether the Alabama extension of personal
jurisdiction complied with the U.S. Constitution's Due Process clause,
and ruled that it did not. The court did a lot more than simply remark
that "the Alabama courts didn't find jurisdiction."
In Minnesota, under its specific test for such, which is statutory.
"... Because Griffis does not claim any other basis [other than Calder
v. Jones - KGG] on which the Alabama court could properly extend
personal jurisdiction over Luban, the _judgment of the Alabama court is
not entitled to full faith and credit *in Minnesota*_. The *_decisions
of the courts below enforcing the Alabama judgment are therefore
reversed, and the Alabama judgment filed in Ramsey County District Court
on May 5, 1998, under the Uniform Enforcement of Foreign Judgments
Acts,Minn. Stat. 548.27, and the Ramsey County District Court judgment
entered on December 21,2000, based on the Alabama judgment, are
vacated*_.
Reversed and judgments [in Minnesota-KGG] vacated."
Clarifying addendum only marked with [ ] and KGG. Emphasis * *, _ _,
mine.
Source: www.securitymanagement.com/library/Griffis_Luban0703.pdf
The Minnesota Supreme Court made no comment in its decision, nor in the
Final Order of the Ramsey County District Court, that any other state in
the US, including Alabama, was bound by the decision (although Defendant
explicitly asked for such wording, it was _not_ included the Final
Order).
Note that What Mr. Rubin says is correct: Minnesota does not have
jurisdiction to tell Alabama itself didn't have jurisdiction in its own
rendering on the case. Only the federal courts have that power.
Minnesota can only say how it, Minnesota, will treat the case as to
enforcement of the injunction in Minnesota.
--
Katherine Griffis-Greenberg, J.D.
DISCLAIMER:
Not a practicing attorney, and no attorney-client relationship
is created. This response is for discussion purposes only. It
isn't meant to be legal advice. If you wish legal advice, seek
out an attorney in your own state who is familar with your
state's laws and applications thereof.
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Subject: Re: Internet free speech legal question
From: Katherine Griffis-Greenberg egylist@REMOVETHISgriffis-consulting.com
Date: 2/11/2004 12:07 AM Pacific Standard Time
Message-id: <94oj2099fmmjaau2niacgto2k73t9mm9pt@4ax.com>
On 10 Feb 2004 22:51:12 -0800, charlesbreitel@yahoo.com (cbreitel) in
misc.legal, wrote the following:
news:<402948D1.AF03F5A5@sprintmail.com>...
MarianneLuban wrote:
What do you mean? It was litigated all the way to the Supreme Court of
Minnesota, cert. denied. How much more "fully litigated" can you get
than
that?
Minnesota doesn't have jurisdiction for the question of whether Alabama
had jurisdiction -- all they SAID is that the Alabama courts didn't
FIND jurisdiction.
In Minnesota, under its specific test for such, which is statutory.
"... Because Griffis does not claim any other basis [other than Calder
v. Jones - KGG] on which the Alabama court could properly extend
personal jurisdiction over Luban, the _judgment of the Alabama court is
not entitled to full faith and credit *in Minnesota*_. The *_decisions
of the courts below enforcing the Alabama judgment are therefore
reversed, and the Alabama judgment filed in Ramsey County District Court
on May 5, 1998, under the Uniform Enforcement of Foreign Judgments
Acts,Minn. Stat. 548.27, and the Ramsey County District Court judgment
entered on December 21,2000, based on the Alabama judgment, are
vacated*_.
Reversed and judgments [in Minnesota-KGG] vacated."
Clarifying addendum only marked with [ ] and KGG. Emphasis * *, _ _,
mine.
Source: www.securitymanagement.com/library/Griffis_Luban0703.pdf
The Minnesota Supreme Court made no comment in its decision, nor in the
Final Order of the Ramsey County District Court, that any other state in
the US, including Alabama, was bound by the decision (although Defendant
explicitly asked for such wording, it was _not_ included the Final
Order).
It makes no difference to the outcome.
Note that What Mr. Rubin says is correct: Minnesota does not have
jurisdiction to tell Alabama itself didn't have jurisdiction in its own
rendering on the case. Only the federal courts have that power.
Minnesota can only say how it, Minnesota, will treat the case as to
enforcement of the injunction in Minnesota.
The judgment didn't need to say one more thing than it did. BTW, by your own
reasoning, the Alabama court didn't have the right to tell Minnesota courts
what to do at all. But you, in your court papers, said over and over again
that it did--that the court of MN was obligated to enforce the AL judgment.
Now you are implying, here,
that the courts of Alabama can just assume it *did* have jurisdiction over me
and enforce it's injunction anytime. You couldn't be more wrong. Regardless,
I don't live in Alabama. So, since you are such an expert on all this, why not
explain how you can enforce this injunction in my state, when the issue of in
personam jurisdiction is res judicata.
"THE EXODUS CHRONICLES: Beliefs, Legends & Rumors from Antiquity Regarding the
Exodus of the Jews from Egypt" by Marianne Luban
You'll never think about the Biblical Book of Exodus in the same way again!
http://www.geocities.com/scribelist/Exodus2.html
|
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otion filed in Ramsey County District Court:
STATE OF MINNESOTADISTRICT COURT
RAMSEY COUNTYSECOND JUDICIAL DISTRICT
Katherine Griffis,Plaintiff,vs.Marianne Luban,Defendant.
Case Type: Other Civil,File No. C1-98-004573
MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS
Introduction and Statement of Facts
Plaintiff Katherine Griffis commenced this action to enforce a default
judgment for money and an injunction entered in Alabama against Marianne Luban.
Luban challenged the judgment on the ground that the due process clause of the
United States Constitution prevented Alabama courts from exercising personal
jurisdiction over her. The Minnesota Supreme Court agreed, and vacated the
Alabama judgment. Griffis v. Luban, 646 N.W.2d 527 (Minn. 2002), cert. denied
__ U.S. ___ (March 10, 2003). In a separate order entered on September 17,
2002, the Minnesota Supreme Court reiterated that "there is no legal basis on
which the [Alabama] injunction that is the subject of this appeal and the court
of appeals' remand could be issued" and remanded the case "to the district
court for final disposition of the case consistent with Griffis I." Griffis v.
Luban, 2002 Minn. LEXIS 686 (Minn. 2003). Luban submitted an order for final
disposition consistent with that language, but Griffis has objected to that
order.
Griffis and her attorneys already have been found in contempt for disregarding
the discharge in bankruptcy court of the money damages portion of the Alabama
judgment. Luban previously moved in United States Bankruptcy Court to hold
Griffis and her attorneys in contempt of Luban's March 15, 2000, bankruptcy
discharge by reason of their April 17, 2000, motion to find her in contempt of
the Alabama injunction. On May 9, 2001, that court granted Luban's motion for
summary judgment against Griffis and her attorneys C. Peter Erlinder and Ralph
J. Overholt. Luban v. Griffis, United States Bankruptcy Court, District of
Minnesota, File No. BKY 99-36147, ADV 00-3163, Order dated May 9, 2001
("Order"), at 1. That court determined that the "plain intention" of Griffis'
motion in Ramsey County District Court was "to both enforce the Alabama
injunction and to either extract money damages from Luban for violations of the
injunction or persuade the state court to incarcerate her for her purported
contempt of the court." Order, at 9. The Bankruptcy Court found Griffis and
her attorneys "in civil contempt of this Court for instituting contempt
proceedings in Ramsey County District Court." Order, at 12. Following a trial
on damages, the Court awarded fees and damages on July 18, 2001. Luban v.
Griffis, United States Bankruptcy Court, District of Minnesota, File No. BKY
99-36147, ADV 00-3163, Order dated July 18, 2001 Order ("July 18, 2001 Order),
at 1. It also entered "a permanent injunction forever prohibiting the
Defendants [Griffis, Erlinder, and Overholt] individually or in concert from
seeking any redress or remedy whatsoever from the Plaintiff on the basis of
prepetition conduct that did or would otherwise violate the Jefferson County
Circuit Court of Alabama injunction entered against the Plaintiff in 1998."
July 18 , 2001 Order, at 2-3.
Griffis now has taken the position that the decisions of the Minnesota Supreme
Court extend only to the borders of the State of Minnesota and that the Alabama
default judgment entered against Marianne Luban "remains enforceable in Alabama
and all other states." See Letter to Lawrence Dease from Peter Erlinder dated
April 18, 2003. The position is frivolous and warrants the imposition of
additional sanctions.
Argument
The continuing harassment of defendant Luban and the implicit threat to seek
to enforce the Alabama judgment if Luban should ever be found in a state other
than Minnesota is unjustified and unconscionable. Throughout this litigation,
Griffis contended that the Full Faith and Credit Clause required the courts of
every other state to honor the Alabama judgment that she had obtained by
default. Now she contends that despite her fiercely contesting the issue of
personal jurisdiction all the way to the United States Supreme Court, the Full
Faith and Credit Clause somehow does not apply to the decision of the Minnesota
Supreme Court. That position is unjustified and warrants the imposition of
sanctions.
Griffis sought relief in the courts of Minnesota and voluntarily submitted
herself to the courts of this State when she entered a general appearance in
this State and sought to enforce the Alabama judgment here. Cf. Durfee v.
Duke, 375 U.S. 106, 111 & n.8 (1963); Baldwin v. Iowa State Traveling Men's
Ass'n., 283 U.S. 522, 525-26 (1931).
Because the courts of Minnesota had jurisdiction over Griffis, she is bound by
the decisions of Minnesota courts on the issues presented to those courts. Cf.
Baldwin, 283 U.S. at 525-26 ("Public policy dictates that there be an end of
litigation; that those who have contested an issue shall be bound by the result
of the contest; and that matters once tried shall be considered forever settled
as between the parties. We see no reason why this doctrine should not apply in
every case where one voluntarily appears, presents his case and is fully heard,
and why he should not, in the absence of fraud, be thereafter concluded by the
judgment of the tribunal to which he has submitted his cause.").
The Minnesota Supreme Court squarely decided the issues of lack of personal
jurisdiction and the concomitant lack of any legal basis upon which the Alabama
court could have entered the judgment that Griffis sought to enforce. Griffis
v. Luban, 646 N.W.2d 527 (Minn. 2002), and Order dated September 17, 2002.
The decisions of the Minnesota Supreme Court are binding upon Griffis
personally as collateral estoppel and res judicata. In American Surety Company
v. Baldwin, 287 U.S. 156, 166 (1932), the United States Supreme Court held:
The principles of res judicata apply to questions of jurisdiction as well as to
other issues. The principles of res judicata may apply, although the
proceeding was begun by motion. Thus, a decision in a proceeding begun by
motion to set aside a judgment for want of jurisdiction is res judicata,
and precludes a suit to enjoin enforcement of the judgment.
The present case similarly is a proceeding begun by motion to set aside the
Alabama judgment for want of jurisdiction, although the resulting decision here
was to void rather than to validate the Alabama judgment. The necessary effect
of the decision of the Minnesota Supreme Court is to preclude further attempts
by Griffis to enforce the Alabama judgment in any other location. Cf. Reed v.
Univ. of North Dakota, 589 N.W.2d 880, 885 (N.D. 1999) ("The Minnesota decision
is entitled to full faith and credit in North Dakota, and res judicata
precludes Reed from thereafter maintaining an identical claim again
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cbreitel wrote:
Bear in mind that the Alabama judgment is still valid in Alabama, and
technically any state other than Minnesota. To completely render the
Alabama judgment void, Luban would have to have Alabama legal counsel
file a declaratory action or something similar, asking an Alabama
court to recognize the Minnesota ruling and vacate and declare void
the default judgment.
Which an Alabama court would have no reason to do, unless except in
a separate motion to vacate the default judgment.
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