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Can 209A Restraining Orders against out-of-state defendant?
There are two types of requirements, the jurisdiction must be met in order for a court that the authority to decide on questions: subject matter and personal jurisdiction. Subject simply means that a court has the authority to hear a particular kind of case. Personal or in personam jurisdiction means that a court has the authority to assert power over a particular person, usually the defendant.
In Massachusetts, Chapter 209A § 1 Subject matter jurisdiction to grant 209A Restraining Order cases, Superior, District, Probate and Family, and Boston Municipal departments. In cases where there is only a dating relationship between the parties, Superior Court is not competent. For example, Subject matter jurisdiction is usually not a problem in 209A cases.
On the issue of personal jurisdiction, the court said in Lamarche v. Lussier, 65 Mass. App. Ct. 887, in April 2006 with the clarification of this issue. In this case, the plaintiff a native of Massachusetts, while the defendant was from New Hampshire. The couple had a ratio of 2 years, in which the plaintiff moved to New Hampshire to live with the defendant. Shortly thereafter, the defendant moved to the State of Washington on a Navy deployment, and the plaintiff followed. One child was born, and after a brief return to New Hampshire, the plaintiff remained in Washington. After the relationship ended, the plaintiffs moved permanently Massachusetts.
Immediately after the plaintiff returned to Massachusetts, she sought a 209A Restraining Order alleges various threats and fears based in part on the defendant's Navy connections. All of these alleged threats, while both parties in Washington.
Generally, for personal jurisdiction to exist, the defendant must be served with court papers, and have sufficient contacts with the state, so that the assertion of jurisdiction by the court meets basic process and fairness standards. There is no minimum or types of contacts that are necessary, the court will analyze these issues on a case by case basis.
The most obvious contact with a state resident. If the defendant is domiciled in the state where the court sits, personal jurisdiction is likely to set up. The other strong, but less apparent basis for jurisdiction is the liberation. That is, if the defendant is not domiciled in the state, but come to defend and argue the case, at the conclusion, without jurisdiction as a claim. The defendant is classified as "waived" his lack of competence of the defense, as the case of litigation, he has voluntarily to the jurisdiction of the Court. In the words of the court, common factor in the abandonment of personal responsibility are "" procrastination, and participation in or promotion of judicial proceedings. "
The defendant may also be a "special appearance" solely for the purposes of personal jurisdiction of the dispute without waiving the defense.
When a court may assert jurisdiction over a non-resident defendant?
There are two questions that are asked: Is the assertion of jurisdiction, under statutes, and if so, is the exercise of jurisdiction consistent with due process requirements under the U.S. Constitution? In Massachusetts, the statute that grants jurisdiction over the defendant is established Mass. Gen. Laws Chapter 223A, Section 3 This is the so-called "long arm" statutes. It consists of eight factors in determining whether jurisdiction can be asserted:
* The settlement of transactions in the state
* Contracting States to be delivered or the things in the state
* An injury by act or omission in the state
* An injury outside of the state and business or other persistent contacts within the state
* The interest in real estate in the state
* The insurance within the State of
* Maintenance of residence within the state during a party to a relationship, it arises from a divorce, custody, alimony, alimony, property settlement or action. Note that a seat is not the same as for a residence permit. A person can have more than one residence but only one seat, which is the basis for the "intention to continue indefinitely." "
* After the item in the past in the jurisdiction of the state, the maintenance, custody, alimony, or property settlement contracts, if the current measure, the modification of such orders.
It is the provision relating to damage to the state, which in most cases be restricted 209A. Moreover, it is the plaintiff who bears the burden of proof as to whether jurisdiction is valid claims.
In Lamarche v. Lussier court case went on the eight factors outlined above and found that none of the factors for the defendant, and therefore personal jurisdiction was not alleged. In short, the defendant did not reside in Massachusetts, still no business still delivered the goods or services, nor in possession of real property of the state. The alleged injury to the plaintiff, while the couple lived in another state.
During the action the defendant caused the plaintiffs injuries in Massachusetts, the defendant does not have the "ongoing contacts" with Massachusetts, as required by the statute.
Since the requirements of the Act were not met, the court has no need for further analysis of the second question of due process and whether constitutional requirements have been fulfilled, so not to offend "traditional notions of fair play and substantial justice. ' "International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (the landmark Supreme Court case setting forth the requirements for personal jurisdiction).
In this sense, the 209A Restraining orders against the defendant were dismissed.
With regard to the question whether 209A Restraining Orders against the state defendants, the answer to a very unsatisfactory and concise overview of everything discussed above, and a classic lawyerly answer: It depends.
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Boston Attorney Dmitry Lev handles Criminal Court Defense and 209A Restraining Order Defense cases in Massachusetts. In addition, Attorney Lev supports people who Restraining orders against them and hope that these orders removed, as well as for breach of such contracts.
Attorney Lev http://www.levlaw.net/blog in a blog and a website at http://www.bostoncriminallaw.net
Attorneys D. Lev, PC
77 Franklin St., 3rd Floor
Boston, MA 02110
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