hp_fa
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The first issue in any case is that the court must have the jurisdiction over a given subject and any and all defendants or else the court lacks the power to enter a judgment against them. So jurisdiction and venue (that is the place where the suit is brought) are the very first items that a lawyer drafting a Complaint must deal with when drafting that Complaint. A defendant must raise any alleged jurisdictional infirmities more or less immediately under the provisions of Rule 12, Fed.R.Civ.P. Link So, the court in it's Order did not **fully** delve into the issues. However, it did make quite a few observations.
(Before I go further it needs to be explained that various crimes and other legal actions require that various elements be present in their entirety. Let's use "negligence" (car accident, etc.) as an example. Negligence has four elements; a duty (drive a car safely within the law); a breach of that duty (failure to yield, speeding, etc.); causation (the breach of duty caused an accident); and, damages (the plaintiff was injured and something because of the failure of the defendant to safely and legally drive their automobile). In the Order the Court addressed both RICO and the extortion allegations that plaintiffs contended gave rise to the RICO claim, starting at page 25. Starting at page 32 the Court begins to specify where the plaintiffs allegations fail to meet the legal elements (requirements) of both extortion and the required predicate pattern of alleged racketeering activity. "After considering all of the allegations in the Amended Complaint, the Court concludes that the facts asserted by the Plaintiff are inadequate to meet the requisite open-ended continuity." (Order, pg 37)
As far as personal jurisdiction over the named defendants, the Court opined as follows:
"Having determined that this action should be dismissed on the grounds that the Plaintiff has failed to state a federal claim and therefore the Court lacks subject matter jurisdiction on the basis of a federal question, and further having exercised its discretion in declining to exercising supplemental jurisdiction over the Plaintiff’s state-law claims, the Court need not address the Individual Defendants’ arguments with respect to personal jurisdiction and venue. If it were necessary to reach such issues, the Court would have serious concerns as to whether the exercise of in personam jurisdiction over the Individual Defendants would comport with the requirements of due process. See ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 626 (4th Cir. 1997) (assertion of jurisdiction over defendant must be “compatible with due processâ€), cert. denied, 523 U.S. 1048, 118 S.Ct. 1364, 140 L.Ed.2d 513 (1998). Upon reviewing the Amended Complaint, the Court notes that there is a paucity of allegations to support the Court’s assertion of jurisdiction over each of the Individual Defendants. Further, the Court questions whether the actions alleged to have been committed by these Defendants – the making of phone calls to USAPA’s hotline and the posting of messages on AWAPPA’s Web Board – would support a finding that “a substantial part of the events†giving rise to the Plaintiff’s claims arose in this District. See 28 U.S.C. §1391(B). Because the Court has dismissed the Plaintiff’s claims based on a lack of subject matter jurisdiction, however, such issues need not be reached." (Order, pg 43-44) (Italics Added.)
The preceding paragraph was dicta, but it clearly establishes that the Court had significant problems with the issue of in personam jurisdiction. However, because the Court had already decided to dismiss Counts One and Two with prejudice and dismiss the rest of the case without prejudice, it did not need to proceed further with an actual finding of a lack of in personam jurisdiction because the remainder of the case was now moot as to federal court.
Directly, perhaps not. However, in my opinion, this issue, at a minimum, calls into question the legal advice that has been potentially rendered and the issue of how a neutral party views at least some of the facts involved. As I previously posted, in my experience this kind of ruling is extremely rare. I had personally never seen one in any case I was in any way involved in.
If one were to stand back and view the purpose of attorneys in our society you might come up with at least some of these items: 1) to represent a party in legal proceedings; 2) to provide legal representation to a party in order to expound the party's position; and, 3) To impartially advise the party in connection with a given fact pattern and how those facts impact upon legal principles and rulings.
The giving of legal advice to a client is designed to provide the client with a view of the law and how the fact pattern a client brings to an issue is likely to be seen in the context of both statutory and case law. The attorney is not supposed to have a vested interest in the matter and is supposed to actually explain the pros and cons of various potential courses of action to the client so the client can make an informed judgment, both about how to proceed and whether the client feels comfortable with that attorney representing the client. Some of the best attorneys I have ever seen make it a point of giving their client a list of a lot potentially bad things that can happen if certain actions occur. Many clients don't want to hear that sort of information and think that the lawyers objective view is not the kind of representation they want, rather they want someone who will proceed onward and give the client exactly what they want without clearly thinking through the issues.
My point is that based on what has happened can you rely on whatever advice has been given, or is what happened a rather large manifestation of larger potential issues? Let's be honest, USAPA is not flush with cash. No union just starting out is flush with cash. Whatever budget exists for legal matters needs to be spent wisely. I would opine that at least one federal judge would question the value of monies that have been spent.
I know. I read your posts and skip those that I don't wish to sully my day with. I do think that kind of behavior is directly the result of how our culture has deteriorated. More is the pity.
