To: Michael Allen Wolf From: Me Re: Zwier v. Sea Quest I. Factors the court will consider in deciding our motion to dismiss based on lack of personal jurisdiction over Sea Quest. Pursuant to Title 12 Section 2004 of the Statute of Columbia, the Columbia long arm statute allows for the exercise of jurisdiction to the extent of the constitution. Therefore, the real analysis will be in the constitutional limits of personal jurisdiction. Traditional basis of jurisdiction: Domicile, Presence, Consent? General Jurisdiction: Substantial and continuous contancts? DUE PROCESS The due process clause of the Fourteenth Amendment requires that the defendant must have minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe. In satisfying this standard the court will look at: 1) whether the defendant did some act or transaction with the forum by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; 2) whether the claim arises out of or results from the defendant’s forum related activities; and 3) whether the exercise of jurisdiction is reasonable. PURPOSEFUL AVAILMENT In determining if the defendant has purposefully availed itself of privileges and benefits of the forum the court will specifically look to particular facts. The court will focus on how significant the defendant’s advertising efforts are in the forum. Sinatra v. National Enquirer. The court will look to the extent of solicitation of business in the forum that results in actual business being conducted. Id. The court will want to know if the defendant established channels of communication for providing regular advise to customers in the forum. Id. The court will look to whether the defendant created, controlled, and actively used a reservation and advertising system that brought customers from the forum. Id. The court will also look at the percentage of clients that came from the forum. Id. CLAIM ARISING FROM FORUM RELATED ACTIVITIES In looking at whether or not the claim arose from those forum related activities the court will look to whether or not the forum related activities listed above actually created a tortuous effect in the forum. Is the tortuous conduct related to the solicitation of business in the forum. REASONABLENESS
The court will look at seven factors in determining whether the exercise of jurisdiction is reasonable. Sinatra. 1) The extent of purposeful interjection. Did the defendant deliberately avail itself of benefits of forum laws or markets? This will be a similar analysis as above. 2) The burden on defendant. Are there continuing contacts between defendant and a forum based agent or does the defendant maintain no physical presence or agent in the forum 3) The conflict with the sovereignty of defendant’s State. This compares litigation of alien defendant versus a defendant from sister state. The court should be less open to exercising jurisdiction over an alien defendant unless the defendant exercised a degree of control over the marketing efforts conducted in forum or day-to-day activities of doing business in forum. 4) The forum state’s interest in adjudicating the suit. Is plaintiff a resident of forum? 5) Efficient judicial resolution. Where are the witnesses and evidence? 6) Convenience and effectiveness of relief for plaintiff. Can plaintiff get relief in another forum? 7) Existence of alternative forum – Does an adequate alternative forum exist? II. Facts in the file that support our position. The forum state being Columbia, the following facts in the file support our position: PURPOSEFUL AVAILMENT The court will be looking to determine if Sea Quest conducts or controls advertising operations in Columbia. The court will look to see if Sea Quest has established a line of communication in Columbia and they will seek to determine what percentage of business comes from Columbia. It will be to Sea Quest’s advantage that Sea Quest does not actively control or operate any advertising in connection with it live-aboard tour. Sea Quest has a contract with STI making STI its exclusive booking agent. Sea Quest has no control over STI and manages none of the day-to-day operations of STI. Furthermore, STI is an Indiana corporation that does not actively solicit or advertise for Sea Quest in Columbia. STI is the booking agent for many companies and if an individual calls STI and requests information about Sea Quest, STI will send them the information at their request. STI, not Sea Quest, will answer questions for customers and collect the deposit. STI will take information down and book the reservation. Further, STI, not Sea Quest, will send the customer a travel voucher. In viewing one of STI’s newsletters it should be noted that STI promotes scuba trips for numerous companies, not just Sea Quest. CLAIM ARISING FROM FORUM RELATED ACTIVITIES The fact that the claim is one of negligence in operating the boat will be helpful in obtaining dismissal for lack of personal jurisdiction. The operation of the boat is not conducted in Columbia at all. Operation of the boat is conducted wholly in the Cayman Islands and is not related to any forum related activities (if there are any).
REASONABLENESS The fact that Sea Quest does not itself conduct any advertising activities in Columbia will be helpful. The fact that Sea Quest does not maintain a physical presence or an agent in Columbia will be helpful. The fact that Sea Quest is an alien defendant from the Cayman Islands will be helpful, especially in light of the fact that they exercise no control over the marketing efforts of STI. The fact that most of the witnesses and evidence is in the Cayman Islands will be helpful. The accident took place in the Cayman Islands, the doctor that treated the plaintiff is in the Cayman Islands. III. Additional Facts Needed PURPOSEFULL AVAILMENT We will want to find out from Swift if Sea Quest undertook any advertising or marketing efforts in Columbia. We will want to find out from Swift and O’Brien if Sea Quest had any control over the operations of STI. We will want to find out from O’Brien if STI specifically advertised in Columbia or to what extent they obtained business from Columbia. We will also want to find out from O’Brien and Swift what percentage of business for both STI and Sea Quest came from Columbia. REASONABLENESS We will want to find out from Jones whether or not such a claim can go forward in the Cayman Islands. Specifically we want to find out if there is a similar cause of action as negligence and whether the statute of limitations has run. We also want to find out the availability of Cayman courts to a plaintiff from Columbia injured in the islands.
AFFIDAVIT OF REGINALD JONES, ESQ. 1. I have been a lawyer in Britain for ten years and then another 15 years in the Cayman Islands 2. The statements in this affidavit are based upon my personal knowledge and professional experience. 3. Defendant Sea Quest is amenable to process in the Cayman Islands. 4. Defendant Sea Quest is subject to jurisdiction in the Cayman Islands. 5. The justice system in the Cayman Islands [recognizes or does not recognize] a cause of action for recovery of damages for negligently causing injury to the person or plaintiff in negligently inflicting emotional distress.
6. The Statute of Limitations on an appropriate cause of action [has not run] in the Cayman Islands. 7. The courts of Cayman Islands are competent to hear the claims stated in the Complaint. 8. The constitution of Cayman Islands [grants standing] to foreign national to prosecute negligence claims. 9. The local courts of the Cayman Islands are far less congested than those of Columbia. 10. The cost of obtaining witnesses is far less in the Cayman Islands. 11. There is a process for compelling witnesses to testify in the Cayman Islands. 12. A judgment obtained in Cayman Islands would be easily enforceable on Sea Quest. 13. Cayman Islands courts will apply Cayman Islands law to the case. 14. The citizens of Columbia need not be burdened with jury duty over a case that has not arisen in Columbia. 15. The Cayman Islands have an interest in adjudicating this local controversy.
AFFIDAVIT OF FRANCIS SWIFT 1. I am the owner of Sea Quest. 2. All the statements in this affidavit are based on my personal knowledge. 3. Sea Quest is a small business wholly operated by myself, whereas spending any significant time in the United States would cause severe damage to the operations of the Sea Quest. 4. The entire alleged accident took place in the Cayman Islands. 5. All my witnesses and evidence is in the Cayman Islands and there would involve a significant expense in transferring such to Columbia. 6. I have personally [never been to Columbia].
REVIEW Organize by factor. Then under each factor give facts we have, and then facts we need. Documentary evidence, physical evidence, testimonial. Circle every person mentioned, they all have something we need. Circle every document or piece of evidence mentioned. Either we have it or we don’t and we need to gather it.