be the nature of the property and regardless of the
country wherein said property may be found.
CHAPTER FOUR: CHOICE OF LAW
Llorente v. Court of Appeals, G.R. No.
124371. November 23, 200
The Issue
Stripping the petition of its legalese and sorting
through the various arguments raised,[36] the issue is
simple. Who are entitled to inherit from the late Lorenzo
N. Llorente?
We do not agree with the decision of the Court of
Appeals. We remand the case to the trial court for ruling
on the intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became
an American citizen long before and at the time of: (1)
his divorce from Paula; (2) marriage to Alicia; (3)
execution of his will; and (4) death, is duly established,
admitted and undisputed.
Thus, as a rule, issues arising from these
incidents are necessarily governed by foreign law.
The Civil Code clearly provides:
Art. 15. Laws relating to family rights and duties, or to
the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even
though living abroad.
Art. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary succession, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be
regulated by the national law of the person whose
succession is under consideration, whatever may
Validity of the Foreign Divorce
(emphasis ours)
True, foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take
judicial notice of them. Like any other fact, they must
be alleged and proved.[37]
While the substance of the foreign law was
pleaded, the Court of Appeals did not admit the foreign
law. The Court of Appeals and the trial court called to
the fore the renvoi doctrine, where the case was
referred back to the law of the decedents domicile, in
this case, Philippine law.
We note that while the trial court stated that the
law of New York was not sufficiently proven, in the
same breath it made the categorical, albeit equally
unproven statement that American law follows the
domiciliary theory hence, Philippine law applies when
determining the validity of Lorenzos will.[38]
First, there is no such thing as one American law.
The "national law" indicated in Article 16 of the Civil
Code cannot possibly apply to general American law.
There is no such law governing the validity of
testamentary provisions in the United States. Each
State of the union has its own law applicable to its
citizens and in force only within the State. It can
therefore refer to no other than the law of the State of
which the decedent was a resident.[39] Second, there
is no showing that the application of the renvoi doctrine
is called for or required by New York State law.
The trial court held that the will was intrinsically
invalid since it contained dispositions in favor of Alice,
who in the trial courts opinion was a mere paramour.
The trial court threw the will out, leaving Alice, and her
two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It
declared Alice entitled to one half (1/2) of whatever
property she and Lorenzo acquired during their
cohabitation, applying Article 144 of the Civil Code of
the Philippines.
The hasty application of Philippine law and the
complete disregard of the will, already probated as duly
executed in accordance with the formalities of
Philippine law, is fatal, especially in light of the
factual and legal circumstances here obtaining.
In Van Dorn v. Romillo, Jr.[40] we held that owing
to the nationality principle embodied in Article 15 of the
Civil Code, only Philippine nationals are covered by the
policy against absolute divorces, the same being
considered contrary to our concept of public policy and
morality. In the same case, the Court ruled that aliens
may obtain divorces abroad, provided they are valid
according to their national law.
Citing this landmark case, the Court held in Quita
v. Court of Appeals,[41] that once proven that
respondent was no longer a Filipino citizen when he
obtained the divorce from petitioner, the ruling in Van
Dorn would become applicable and petitioner could
very well lose her right to inherit from him.
In Pilapil v. Ibay-Somera,[42] we recognized the
divorce obtained by the respondent in his country, the
Federal Republic of Germany. There, we stated that
divorce and its legal effects may be recognized in the
Philippines insofar as respondent is concerned in view
of the nationality principle in our civil law on the status
of persons.
For failing to apply these doctrines, the decision
of the Court of Appeals must be reversed. [43] We hold
that the divorce obtained by Lorenzo H. Llorente from
his first wife Paula was valid and recognized in this
jurisdiction as a matter of comity. Now, the effects of
this divorce (as to the succession to the estate of the
decedent) are matters best left to the determination of
the trial court.
Validity of the Will
The Civil Code provides:
Art. 17. The forms and solemnities of contracts,
wills, and other public instruments shall be governed
by the laws of the country in which they are
executed.
When the acts referred to are executed before the
diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in
their execution. (underscoring ours)
 The clear intent of Lorenzo to bequeath his
property to his second wife and children by her is
glaringly shown in the will he executed. We do not wish
to frustrate his wishes, since he was a foreigner, not
covered by our laws on family rights and duties, status,
condition and legal capacity.[44]
Whether the will is intrinsically valid and who shall
inherit from Lorenzo are issues best proved by foreign
law which must be pleaded and proved. Whether the
will was executed in accordance with the formalities
required is answered by referring to Philippine law. In
fact, the will was duly probated.
As a guide however, the trial court should note
that whatever public policy or good customs may be
involved in our system of legitimes, Congress did not
intend to extend the same to the succession of foreign
nationals. Congress specifically left the amount of
successional rights to the decedent's national law.[45]
Having thus ruled, we find it unnecessary to pass
upon the other issues raised.
Aznar v. Garcia, G.R. No. L-16749.
January 31, 1963
Appellees argue that what Article 16 of the Civil Code
of the Philippines pointed out as the national law is the
internal law of California. But as above explained the
laws of California have prescribed two sets of laws for
its citizens, one for residents therein and another for
those domiciled in other jurisdictions. Reason demands
that We should enforce the California internal law
prescribed for its citizens residing therein, and enforce
the conflict of laws rules for the citizens domiciled
abroad. If we must enforce the law of California as in
comity we are bound to go, as so declared in Article 16
of our Civil Code, then we must enforce the law of
California in accordance with the express mandate
thereof and as above explained, i.e., apply the internal
law for residents therein, and its conflict-of-laws rule for
those domiciled abroad.
It is argued on appellees' behalf that the clause "if there
is no law to the contrary in the place where the property
is situated" in Sec. 946 of the California Civil Code
refers to Article 16 of the Civil Code of the Philippines
and that the law to the contrary in the Philippines is the
provision in said Article 16 that the national law of the
deceased should govern. This contention can not be
sustained. As explained in the various authorities cited
above the national law mentioned in Article 16 of our
Civil Code is the law on conflict of laws in the California
Civil Code, i.e., Article 946, which authorizes the
reference or return of the question to the law of the
testator's domicile. The conflict of laws rule in
California, Article 946, Civil Code, precisely refers back
the case, when a decedent is not domiciled in
California, to the law of his domicile, the Philippines in
the case at bar. The court of the domicile can not and
should not refer the case back to California; such action
would leave the issue incapable of determination
because the case will then be like a football, tossed
back and forth between the two states, between the
country of which the decedent was a citizen and the
country of his domicile. The Philippine court must apply
its own law as directed in the conflict of laws rule of the
state of the decedent, if the question has to be decided,
especially as the application of the internal law of
California provides no legitime for children while the
Philippine law, Arts. 887(4) and 894, Civil Code of the
Philippines, makes natural children legally
acknowledged forced heirs of the parent recognizing
them.
The Philippine cases (In re Estate of Johnson, 39 Phil.
156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs.
Brimo, 50 Phil. 867; Babcock Templeton vs. Rider
Babcock, 52 Phil. 130; and Gibbs vs. Government, 59
Phil. 293.) cited by appellees to support the decision
can not possibly apply in the case at bar, for two
important reasons, i.e., the subject in each case does
not appear to be a citizen of a state in the United States
but with domicile in the Philippines, and it does not
appear in each case that there exists in the state of
which the subject is a citizen, a law similar to or
identical with Art. 946 of the California Civil Code.
We therefore find that as the domicile of the deceased
Christensen, a citizen of California, is the Philippines,
the validity of the provisions of his will depriving his
acknowledged natural child, the appellant, should be
governed by the Philippine Law, the domicile, pursuant
to Art. 946 of the Civil Code of California, not by the
internal law of California..
PCI Bank v. Escolin, G.R. Nos. L-27860 &
L-27896. March 29, 1974
We also hold, however, that the estate of Mrs.
Hodges inherited by her brothers and sisters
could be more than just stated, but this would
depend on (1) whether upon the proper
application of the principle of renvoi in relation
to Article 16 of the Civil Code and the
pertinent laws of Texas, it will appear that
Hodges had no legitime as contended by
Magno, and (2) whether or not it can be held
that Hodges had legally and effectively
renounced his inheritance from his wife.
Under the circumstances presently obtaining
and in the state of the record of these cases,
as of now, the Court is not in a position to
make a final ruling, whether of fact or of law,
on any of these two issues, and We,
therefore, reserve said issues for further
proceedings and resolution in the first
instance by the court a quo, as hereinabove
indicated. We reiterate, however, that pending
such further proceedings, as matters stand at
this stage, Our considered opinion is that it is
beyond cavil that since, under the terms of the
will of Mrs. Hodges, her husband could not
have anyway legally adjudicated or caused to
be adjudicated to himself her whole share of
their conjugal partnership, albeit he could
have disposed any part thereof during his
lifetime, the resulting estate of Mrs. Hodges,
of which Magno is the uncontested
administratrix, cannot be less than one-fourth
of the conjugal partnership properties, as of
the time of her death, minus what, as
explained earlier, have been gratuitously
disposed of therefrom, by Hodges in favor of
third persons since then, for even if it were
assumed that, as contended by PCIB, under
Article 16 of the Civil Code and applying
renvoi the laws of the Philippines are the ones
ultimately applicable, such one-fourth share
would be her free disposable portion, taking
into account already the legitime of her
husband under Article 900 of the Civil Code.
Obergefell vs. Hodges, 14-556 (June 26,
2015), 576 US __
The State laws challenged by Petitioners in these cases are
now held invalid to the extent they exclude same-sex
couples from civil marriage on the same terms and
conditions as opposite-sex couples.
The Court, holds same-sex couples may exercise the
fundamental right to marry in all States. It follows that the
Court also must hold—and it now does hold—that there is
no lawful basis for a State to refuse to recognize a lawful
same-sex marriage performed in another State on the
ground of its same-sex character.
Tayag Renato vs. Benguet Consolidated,
Inc., G.R. No. 23145, November 29, 1968
In the first place, Benguet did not and cannot
question the AA’s power to gain control and
possession of the decedent’s assets within the
jurisdiction of the Philippines. The ancillary
administrator has the power to gain control and
possession of all assets of the decedent within
the jurisdiction of the Philippines. Such power is
inherent in his duty to settle the decedent’s
estate and satisfy the claims of local creditors.
In addition to this, the actual situs of the shares
of stock is in the Philippines, since the
corporation which issued it is domiciled here.
Administration, whether principal or ancillary,
extends to the assets of a decedent found
within the state or country where it was
granted, the corollary being that an
administrator appointed in one state or country
The first clause of paragraph 10 cannot be
has no power over property in another state or
invoked to prevent the application of Philippine
country.
labor laws and regulations to the subject matter
United Airlines Inc. vs. Court of Appeals, of this case, i.e., the employer-employee
relationship between petitioner PIA and private
G.R. No. 124110, 20 April 2001
The appellate court, however, erred in applying respondents.
the laws of the United States as, in the case at bar,
Philippine law is the applicable law. Although, the
contract of carriage was to be performed in the United
States, the tickets were purchased through petitioners The relationship is much affected with public
agent in Manila. It is true that the tickets were rewritten interest and that the otherwise applicable
in Washington, D.C. However, such fact did not change
the nature of the original contract of carriage entered Philippine laws and regulations cannot be
into by the parties in Manila. rendered illusory by the parties agreeing upon
In the case of Zalamea vs. Court of Appeals,[30]
this Court applied the doctrine of lex loci contractus. some other law to govern their relationship.
According to the doctrine, as a general rule, the law of
the place where a contract is made or entered into
governs with respect to its nature and validity,
Neither may petitioner invoke the second
obligation and interpretation. This has been said to be
the rule even though the place where the contract was clause of paragraph 10, specifying the Karachi
made is different from the place where it is to be
performed, and particularly so, if the place of the courts as the sole venue for the settlement of
making and the place of performance are the same. dispute; between the contracting parties.
Hence, the court should apply the law of the place
where the airline ticket was issued, when the
passengers are residents and nationals of the forum
and the ticket is issued in such State by the defendant
Even a cursory scrutiny of the relevant
airline.
circumstances of this case will show the
multiple and substantive contacts between
Pakistan International Airlines vs. Ople, Philippine law and Philippine courts, on the one
190 SCRA 1990, G.R. No. 61594, hand, and the relationship between the parties,
September 28, 199 upon the other: the contract was not only
Petitioner PIA cannot take refuge in paragraph executed in the Philippines, it was also
10 of its employment agreement which performed here, at least partially; private
specifies, firstly, the law of Pakistan as the respondents are Philippine citizens and
applicable law of the agreement and, secondly, respondents, while petitioner, although a
lays the venue for settlement of any dispute foreign corporation, is licensed to do business
arising out of or in connection with the (and actually doing business) and hence
agreement "only [in] courts of Karachi resident in the Philippines; lastly, private
Pakistan". respondents were based in the Philippines in
between their assigned flights to the Middle
East and Europe.
All the above contacts point to the Philippine
courts and administrative agencies as a proper
forum for the resolution of contractual disputes
between the parties.
Under these circumstances, paragraph 10 of the
employment agreement cannot be given effect
so as to oust Philippine agencies and courts of
the jurisdiction vested upon them by Philippine
law.
Finally, and in any event, the petitioner PIA did
not undertake to plead and prove the contents
of Pakistan law on the matter; it must therefore
be presumed that the applicable provisions of
the law of Pakistan are the same as the
applicable provisions of Philippine law.
Testate Estate of Amos G. Bellis et al. vs.
Edward Bellis, L-23678, June 6, 1967
In this regard, the parties do not submit the case on,
nor even discuss, the doctrine of renvoi, applied by
this Court in Aznar v. Christensen Garcia, L-16749,
January 31, 1963. Said doctrine is usually pertinent
where the decedent is a national of one country, and
a domicile of another. In the present case, it is not
disputed that the decedent was both a national of
Texas and a domicile thereof at the time of his death.2
So that even assuming Texas has a conflict of law
rule providing that the domiciliary system (law of the
domicile) should govern, the same would not result in
a reference back (renvoi) to Philippine law, but would
still refer to Texas law. Nonetheless, if Texas has a
conflicts rule adopting the situs theory (lex rei sitae)
calling for the application of the law of the place where
the properties are situated, renvoi would arise, since
the properties here involved are found in the
Philippines. In the absence, however, of proof as to
the conflict of law rule of Texas, it should not be
presumed different from ours.3 Appellants' position is
therefore not rested on the doctrine of renvoi. As
stated, they never invoked nor even mentioned it in
their arguments. Rather, they argue that their case
falls under the circumstances mentioned in the third
paragraph of Article 17 in relation to Article 16 of the
Civil Code.
It is therefore evident that whatever public policy or
good customs may be involved in our System of
legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
Appellants would also point out that the decedent
executed two wills — one to govern his Texas estate
and the other his Philippine estate — arguing from this
that he intended Philippine law to govern his Philippine
estate. Assuming that such was the decedent's
intention in executing a separate Philippine will, it
would not alter the law, for as this Court ruled in
Miciano v. Brimo, 50 Phil. 867, 870, a provision in a
foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not
with his national law, is illegal and void, for his national
law cannot be ignored in regard to those matters that
Article 10 — now Article 16 — of the Civil Code states
said national law should govern.
The parties admit that the decedent, Amos G. Bellis,
was a citizen of the State of Texas, U.S.A., and that
under the laws of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic validity of the
provision of the will and the amount of successional
rights are to be determined under Texas law, the
Philippine law on legitimes cannot be applied to the
testacy of Amos G. Bellis.
Asiavest Merchant Bankers vs. Court of
Appeals, G.R. No. 110263, 20 July 200
Generally, in the absence of a special
compact, no sovereign is bound to give
effect within its dominion to a judgment
rendered by a tribunal of another
country;[13] however, the rules of comity,
utility and convenience of nations have
established a usage among civilized states
by which final judgments of foreign courts
of competent jurisdiction are reciprocally
respected and rendered efficacious under
certain conditions that may vary in
different countries.[14]
In this jurisdiction, a valid judgment
rendered by a foreign tribunal may be
recognized insofar as the immediate
parties and the underlying cause of action
are concerned so long as it is convincingly
shown that there has been an opportunity
for a full and fair hearing before a court of
competent jurisdiction; that the trial upon
regular proceedings has been conducted,
following due citation or voluntary
appearance of the defendant and under a
system of jurisprudence likely to secure an
impartial administration of justice; and
that there is nothing to indicate either a
prejudice in court and in the system of
laws under which it is sitting or fraud in
procuring the judgment.[15]
A foreign judgment is presumed to be
valid and binding in the country from
which it comes, until a contrary showing,
on the basis of a presumption of regularity
of proceedings and the giving of due notice
in the foreign forum. Under Section
50(b),[16] Rule 39 of the Revised Rules of
Court, which was the governing law at the
time the instant case was decided by the
trial court and respondent appellate court,
a judgment, against a person, of a tribunal
of a foreign country having jurisdiction to
pronounce the same is presumptive
evidence of a right as between the parties
and their successors in interest by a
subsequent title. The judgment may,
however, be assailed by evidence of want
of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or
fact. In addition, under Section 3(n), Rule
131 of the Revised Rules of Court, a court,
whether in the Philippines or elsewhere,
enjoys the presumption that it was acting
in the lawful exercise of its jurisdiction.
Hence, once the authenticity of the foreign
judgment is proved, the party attacking a
foreign judgment, is tasked with the
burden of overcoming its presumptive
validity.
In the instant case, petitioner
sufficiently established the existence of the
money judgment of the High Court of
Malaya by the evidence it offered. Vinayak
Prabhakar Pradhan, presented as
petitioners sole witness, testified to the
effect that he is in active practice of the law
profession in Malaysia;[17] that he was
connected with Skrine and Company as
Legal Assistant up to 1981;[18] that private
respondent, then known as Construction
and Development Corporation of the
Philippines, was sued by his client,
Asiavest Merchant Bankers (M) Berhad, in
Kuala Lumpur;[19] that the writ of summons
were served on March 17, 1983 at the
registered office of private respondent and
on March 21, 1983 on Cora S. Deala, a
financial planning officer of private
respondent for Southeast Asia
operations; that upon the filing of the
[20]
case, Messrs. Allen and Gledhill, Advocates
and Solicitors, with address at 24th Floor,
UMBC Building, Jalan Sulaiman, Kuala
Lumpur, entered their conditional
appearance for private respondent
questioning the regularity of the service of
the writ of summons but subsequently
withdrew the same when it realized that
the writ was properly served;[21] that
because private respondent failed to file a
statement of defense within two (2)
weeks, petitioner filed an application for
summary judgment and submitted
affidavits and documentary evidence in
support of its claim;[22] that the matter was
then heard before the High Court of Kuala
Lumpur in a series of dates where private
respondent was represented by
counsel; and that the end result of all
[23]
these proceedings is the judgment sought
to be enforced.
Having thus proven, through the
foregoing evidence, the existence and
authenticity of the foreign judgment, said
foreign judgment enjoys presumptive
validity and the burden then fell upon the
party who disputes its validity, herein
private respondent, to prove otherwise.
Private respondent failed to
sufficiently discharge the burden that fell
upon it to prove by clear and convincing
evidence the grounds which it relied upon
to prevent enforcement of the Malaysian
High Court judgment, namely, (a) that
jurisdiction was not acquired by the
Malaysian Court over the person of private
respondent due to alleged improper
service of summons upon private
respondent and the alleged lack of
authority of its counsel to appear and
represent private respondent in the suit;
(b) the foreign judgment is allegedly
tainted by evident collusion, fraud and
clear mistake of fact or law; and (c) not
only were the requisites for enforcement
or recognition allegedly not complied with
but also that the Malaysian judgment is
allegedly contrary to the Constitutional
prescription that the every decision must
state the facts and law on which it is
based.[36]
Garcia vs. Recio, G.R. No. 138322, 02
October 2001
Proving the Divorce Between
Respondent and Editha Samson
Petitioner assails the trial courts
recognition of the divorce between
respondent and Editha Samson. Citing
Adong v. Cheong Seng Gee,[20] petitioner
argues that the divorce decree, like any
other foreign judgment, may be given
recognition in this jurisdiction only upon
proof of the existence of (1) the foreign law
allowing absolute divorce and (2) the
alleged divorce decree itself. She adds that
respondent miserably failed to establish
these elements.
Petitioner adds that, based on the first
paragraph of Article 26 of the Family Code,
marriages solemnized abroad are
governed by the law of the place where
they were celebrated (the lex loci
celebrationis). In effect, the Code requires
the presentation of the foreign law to show
the conformity of the marriage in question
to the legal requirements of the place
where the marriage was performed.
At the outset, we lay the following
basic legal principles as the take-off points
for our discussion. Philippine law does not
provide for absolute divorce; hence, our
courts cannot grant it.[21] A marriage
between two Filipinos cannot be dissolved
even by a divorce obtained abroad,
because of Articles 15[22] and 17[23] of the
Civil Code.[24] In mixed marriages involving
a Filipino and a foreigner, Article 26[25] of
the Family Code allows the former to
contract a subsequent marriage in case the
divorce is validly obtained abroad by the
alien spouse capacitating him or her to
remarry.[26] A divorce obtained abroad by a
couple, who are both aliens, may be
recognized in the Philippines, provided it
is consistent with their respective national
laws.[27]
A comparison between marriage and
divorce, as far as pleading and proof are
concerned, can be made. Van Dorn v.
Romillo Jr. decrees that aliens may obtain
divorces abroad, which may be recognized
in the Philippines, provided they are valid
according to their national law.[28]
Therefore, before a foreign divorce decree
can be recognized by our courts, the party
pleading it must prove the divorce as a fact
and demonstrate its conformity to the
foreign law allowing it.[29] Presentation
solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce
decree can be admitted in evidence, it must
first comply with the registration
requirements under Articles 11, 13 and 52
of the Family Code
Respondent, on the other hand, argues
that the Australian divorce decree is a
public document -- a written official act of
an Australian family court. Therefore, it
requires no further proof of its
authenticity and due execution.
Respondent is getting ahead of
himself. Before a foreign judgment is given
presumptive evidentiary value, the
document must first be presented and
admitted in evidence.[30] A divorce
obtained abroad is proven by the divorce
decree itself. Indeed the best evidence of a
judgment is the judgment itself.[31] The
decree purports to be a written act or
record of an act of an official body or
tribunal of a foreign country.[32]
Under Sections 24 and 25 of Rule 132,
on the other hand, a writing or document
may be proven as a public or official record
of a foreign country by either (1) an official
publication or (2) a copy thereof
attested[33] by the officer having legal
custody of the document. If the record is
not kept in the Philippines, such copy must
be (a) accompanied by a certificate issued
by the proper diplomatic or consular
officer in the Philippine foreign service
stationed in the foreign country in which
the record is kept and (b) authenticated by
the seal of his office. [34]
The divorce decree between
respondent and Editha Samson appears to
be an authentic one issued by an
Australian family court.[35] However,
appearance is not sufficient; compliance
with the aforementioned rules on
evidence must be demonstrated.
Fortunately for respondents cause,
when the divorce decree of May 18, 1989
was submitted in evidence, counsel for
petitioner objected, not to its admissibility,
but only to the fact that it had not been
registered in the Local Civil Registry of
Cabanatuan City.[36] The trial court ruled
that it was admissible, subject to
petitioners qualification.[37] Hence, it was
admitted in evidence and accorded weight
by the judge. Indeed, petitioners failure to
object properly rendered the divorce
decree admissible as a written act of the
Family Court of Sydney, Australia.[38]
Compliance with the quoted articles
(11, 13 and 52) of the Family Code is not
necessary; respondent was no longer
bound by Philippine personal laws after he
acquired Australian citizenship in 1992.[39]
Naturalization is the legal act of adopting
an alien and clothing him with the political
and civil rights belonging to a citizen.[40]
Naturalized citizens, freed from the
protective cloak of their former states, don
the attires of their adoptive countries. By
becoming an Australian, respondent
severed his allegiance to the Philippines
and the vinculum juris that had tied him to
Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden
to prove Australian divorce law falls upon
petitioner, because she is the party
challenging the validity of a foreign
judgment. He contends that petitioner was
satisfied with the original of the divorce
decree and was cognizant of the marital
laws of Australia, because she had lived
and worked in that country for quite a long
time. Besides, the Australian divorce law is
allegedly known by Philippine courts;
thus, judges may take judicial notice of
foreign laws in the exercise of sound
discretion.
We are not persuaded. The burden of
proof lies with the party who alleges the
existence of a fact or thing necessary in the
prosecution or defense of an action.[41] In
civil cases, plaintiffs have the burden of
proving the material allegations of the
complaint when those are denied by the
answer; and defendants have the burden
of proving the material allegations in their
answer when they introduce new
matters.[42] Since the divorce was a defense
raised by respondent, the burden of
proving the pertinent Australian law
validating it falls squarely upon him.
It is well-settled in our jurisdiction
that our courts cannot take judicial notice
of foreign laws.[43] Like any other facts, they
must be alleged and proved. Australian
marital laws are not among those matters
that judges are supposed to know by
reason of their judicial function.[44] The
power of judicial notice must be exercised
with caution, and every reasonable doubt
upon the subject should be resolved in the
negative.
Neither can we grant petitioners
prayer to declare her marriage to
respondent null and void on the ground of
bigamy. After all, it may turn out that
under Australian law, he was really
capacitated to marry petitioner as a direct
result of the divorce decree. Hence, we
believe that the most judicious course is to
remand this case to the trial court to
receive evidence, if any, which show
petitioners legal capacity to marry
petitioner. Failing in that, then the court a
quo may declare a nullity of the parties
marriage on the ground of bigamy, there
being already in evidence two existing
marriage certificates, which were both
obtained in the Philippines, one in
Malabon, Metro Manila dated March 1,
1987 and the other, in Cabanatuan City
dated January 12, 1994.
WHEREFORE, in the interest of
orderly procedure and substantial justice,
we REMAND the case to the court a quo for
the purpose of receiving evidence which
conclusively show respondents legal
capacity to marry petitioner; and failing in
that, of declaring the parties marriage void
on the ground of bigamy, as above
discussed. No costs.
Sps. Zalamea vs. Court of Appeals and
Transworld Airlines, Inc. G.R. No. 104235,
18 November 1993
That there was fraud or bad faith on the part of
respondent airline when it did not allow petitioners to
board their flight for Los Angeles in spite of confirmed
tickets cannot be disputed. The U.S. law or regulation
allegedly authorizing overbooking has never been
proved. Foreign laws do not prove themselves nor can
the courts take judicial notice of them. Like any other
fact, they must be alleged and proved.6 Written law
may be evidenced by an official publication thereof or
by a copy attested by the officer having the legal
custody of the record, or by his deputy, and
accompanied with a certificate that such officer has
custody. The certificate may be made by a secretary of
an embassy or legation, consul general, consul, vice-
consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated
by the seal of his office.7
Respondent TWA relied solely on the statement of Ms.
Gwendolyn Lather, its customer service agent, in her
deposition dated January 27, 1986 that the Code of
Federal Regulations of the Civil Aeronautics Board
allows overbooking. Aside from said statement, no
official publication of said code was presented as
evidence. Thus, respondent court's finding that
overbooking is specifically allowed by the US Code of
Federal Regulations has no basis in fact.
Even if the claimed U.S. Code of Federal Regulations
does exist, the same is not applicable to the case at bar
in accordance with the principle of lex loci contractus
which require that the law of the place where the airline
ticket was issued should be applied by the court where
the passengers are residents and nationals of the
forum and the ticket is issued in such State by the
defendant airline.8 Since the tickets were sold and
issued in the Philippines, the applicable law in this case
would be Philippine law.
Existing jurisprudence explicitly states that
overbooking amounts to bad faith, entitling the
passengers concerned to an award of moral damages.
In Alitalia Airways v. Court of Appeals,9 where
passengers with confirmed bookings were refused
carriage on the last minute, this Court held that when
an airline issues a ticket to a passenger confirmed on
a particular flight, on a certain date, a contract of
carriage arises, and the passenger has every right to
expect that he would fly on that flight and on that date.
If he does not, then the carrier opens itself to a suit for
breach of contract of carriage. Where an airline had
deliberately overbooked, it took the risk of having to
deprive some passengers of their seats in case all of
them would show up for the check in. For the indignity
and inconvenience of being refused a confirmed seat
on the last minute, said passenger is entitled to an
award of moral damages.
Chapter Five: Enforcement of
Judgments
Asiavest Merchant Bankers v. Court of
Appeals, G.R. No. 110263, July 20, 2001
Private respondent failed to sufficiently
discharge the burden that fell upon it to prove
by clear and convincing evidence the grounds
which it relied upon to prevent enforcement of
the Malaysian High Court judgment, namely, (a)
that jurisdiction was not acquired by the
Malaysian Court over the person of private
respondent due to alleged improper service of
summons upon private respondent and the
alleged lack of authority of its counsel to appear
and represent private respondent in the suit; (b)
the foreign judgment is allegedly tainted by
evident collusion, fraud and clear mistake of
fact or law; and (c) not only were the requisites
for enforcement or recognition allegedly not
complied with but also that the Malaysian
judgment is allegedly contrary to the
Constitutional prescription that the every
decision must state the facts and law on which
it is based
The foregoing reasons or grounds relied upon
by private respondent in preventing
enforcement and recognition of the Malaysian
judgment primarily refer to matters of
remedy and procedure taken by the
Malaysian High Court relative to the suit for
collection initiated by petitioner. Needless to
stress, the recognition to be accorded a
foreign judgment is not necessarily affected
by the fact that the procedure in the courts of
the country in which such judgment was
rendered differs from that of the courts of the
country in which the judgment is relied on.[42]
Ultimately, matters of remedy and procedure
such as those relating to the service of
summons or court process upon the
defendant, the authority of counsel to appear
and represent a defendant and the formal
requirements in a decision are governed by
the lex fori or the internal law of the forum,[43]
i.e., the law of Malaysia in this case.
Furthermore, even when the foreign
judgment is based on the drafts prepared
by counsel for the successful party, such is
not per se indicative of collusion or fraud.
Fraud to hinder the enforcement within
the jurisdiction of a foreign judgment must
be extrinsic, i.e., fraud based on facts not
controverted or resolved in the case where
judgment is rendered,[50] or that which
would go to the jurisdiction of the court or
would deprive the party against whom
judgment is rendered a chance to defend
the action to which he has a meritorious
defense.[51] Intrinsic fraud is one which
goes to the very existence of the cause of
action is deemed already adjudged, and it,
therefore, cannot militate against the
recognition or enforcement of the foreign
judgment.[52] Evidence is wanting on the
alleged extrinsic fraud. Hence, such
unsubstantiated allegation cannot give
rise to liability therein.
Lastly, there is no merit to the
argument that the foreign judgment is not
enforceable in view of the absence of any
statement of facts and law upon which the
award in favor of the petitioner was based.
As aforestated, the lex fori or the internal
law of the forum governs matters of
remedy and procedure.[53] Considering that
under the procedural rules of the High
Court of Malaya, a valid judgment may be
rendered even without stating in the
judgment every fact and law upon which
the judgment is based, then the same must
be accorded respect and the courts in this
jurisdiction cannot invalidate the
judgment of the foreign court simply
because our rules provide otherwise.
All in all, private respondent had the
ultimate duty to demonstrate the alleged
invalidity of such foreign judgment, being
the party challenging the judgment
rendered by the High Court of Malaya. But
instead of doing so, private respondent
merely argued, to which the trial court
agreed, that the burden lay upon
petitioner to prove the validity of the
money judgment. Such is clearly
erroneous and would render meaningless
the presumption of validity accorded a
foreign judgment were the party seeking
to enforce it be required to first establish
its validity
Philsec Investment Corp., v. Court of
Appeals, G.R. No. 103493, June 19, 1997
While this Court has given the effect
of res judicata to foreign judgments in
several cases,[7] it was after the parties
opposed to the judgment had been given
ample opportunity to repel them on
grounds allowed under the law.[8] It is not
necessary for this purpose to initiate a
separate action or proceeding for
enforcement of the foreign judgment.
What is essential is that there is
opportunity to challenge the foreign
judgment, in order for the court to
properly determine its efficacy. This is
because in this jurisdiction, with respect
to actions in personam, as distinguished
from actions in rem, a foreign judgment
merely constitutes prima facie evidence
of the justness of the claim of a party and,
as such, is subject to proof to the
contrary.[9] Rule 39, 50 provides:
SEC. 50. Effect of foreign judgments. - The
effect of a judgment of a tribunal of a
foreign country, having jurisdiction to
pronounce the judgment is as follows:
(a) In case of a judgment upon a specific
thing, the judgment is conclusive upon the
title to the thing;
(b) In case of a judgment against a person,
the judgment is presumptive evidence of a
right as between the parties and their
successors in interest by a subsequent title;
but the judgment may be repelled by
evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
mistake of law or fact.
Thus, in the case of General
Corporation of the Philippines v. Union
Insurance Society of Canton, Ltd.,[10]
which private respondents invoke for
claiming conclusive effect for the foreign
judgment in their favor, the foreign
judgment was considered res judicata
because this Court found from the
evidence as well as from appellants own
pleadings[11] that the foreign court did not
make a clear mistake of law or fact or that
its judgment was void for want of
jurisdiction or because of fraud or
collusion by the defendants. Trial had
been previously held in the lower court
and only afterward was a decision
rendered, declaring the judgment of the
Supreme Court of the State of
Washington to have the effect of res
judicata in the case before the lower
court. In the same vein, in Philippine
International Shipping Corp. v. Court of
Appeals,[12] this Court held that the foreign
judgment was valid and enforceable in
the Philippines there being no showing
that it was vitiated by want of notice to the
party, collusion, fraud or clear mistake of
law or fact. The prima facie presumption
under the Rule had not been rebutted.
In the case at bar, it cannot be said
that petitioners were given the
opportunity to challenge the judgment of
the U.S. court as basis for declaring it res
judicata or conclusive of the rights of
private respondents. The proceedings in
the trial court were summary. Neither the
trial court nor the appellate court was
even furnished copies of the pleadings in
the U.S. court or apprised of the evidence
presented thereat, to assure a proper
determination of whether the issues then
being litigated in the U.S. court were
exactly the issues raised in this case
such that the judgment that might be
rendered would constitute res judicata.
As the trial court stated in its disputed
order dated March 9, 1988:
On the plaintiffs claim in its
Opposition that the causes of action
of this case and the pending case in
the United States are not identical,
precisely the Order of January 26,
1988 never found that the causes of
action of this case and the case
pending before the USA Court, were
identical. (emphasis added)
It was error therefore for the Court of
Appeals to summarily rule that petitioners
action is barred by the principle of res
judicata. Petitioners in fact questioned
the jurisdiction of the U.S. court over their
persons, but their claim was brushed
aside by both the trial court and the Court
of Appeals.[13]
Moreover, the Court notes that on
April 22, 1992, 1488, Inc. and Daic filed a
petition for the enforcement of judgment
in the Regional Trial Court of Makati,
where it was docketed as Civil Case No.
92-1070 and assigned to Branch 134,
although the proceedings were
suspended because of the pendency of
this case. To sustain the appellate courts
ruling that the foreign judgment
constitutes res judicata and is a bar to the
claim of petitioners would effectively
preclude petitioners from repelling the
judgment in the case for enforcement. An
absurdity could then arise: a foreign
judgment is not subject to challenge by
the plaintiff against whom it is invoked, if
it is pleaded to resist a claim as in this
case, but it may be opposed by the
defendant if the foreign judgment is
sought to be enforced against him in a
separate proceeding. This is plainly
untenable. It has been held therefore
that:
[A] foreign judgment may not be enforced if
it is not recognized in the jurisdiction where
affirmative relief is being sought. Hence, in
the interest of justice, the complaint should
be considered as a petition for the
recognition of the Hongkong judgment
under Section 50 (b), Rule 39 of the Rules of
Court in order that the defendant, private
respondent herein, may present evidence of
lack of jurisdiction, notice, collusion, fraud
or clear mistake of fact and law, if
applicable
WHEREFORE, the decision of the Court of
Appeals is REVERSED and Civil Case No.
16563 is REMANDED to the Regional Trial
Court of Makati for consolidation with Civil
Case No. 92-1070 and for further
proceedings in accordance with this
decision. The temporary restraining order
issued on June 29, 1994 is hereby LIFTED.
Phil. Aluminum Wheels v. FASGI
Enterprises, G.R. No. 137378, Oct. 12,
200
Unable to obtain satisfaction of the
final judgment within the United States,
FASGI filed a complaint for "enforcement
of foreign judgment" in February 1983,
before the Regional Trial Court, Branch 61,
of Makati, Philippines. The Makati court,
however, in an order of 11 September
1990, dismissed the case, thereby denying
the enforcement of the foreign judgment
within Philippine jurisdiction, on the
ground that the decree was tainted with
collusion, fraud, and clear mistake of law
and fact.[11] The lower court ruled that the
foreign judgment ignored the reciprocal
obligations of the parties. While the
assailed foreign judgment ordered the
return by PAWI of the purchase amount,
no similar order was made requiring
FASGI to return to PAWI the third and
fourth containers of wheels.[12] This
situation, the trial court maintained,
amounted to an unjust enrichment on the
part of FASGI. Furthermore, the trial court
said, the supplemental settlement
agreement and the subsequent motion for
entry of judgment upon which the
California court had based its judgment
were a nullity for having been entered into
by Mr. Thomas Ready, counsel for PAWI,
without the latter's authorization.
FASGI appealed the decision of the
trial court to the Court of Appeals. In a
decision,[13] dated 30 July 1997, the
appellate court reversed the decision of
the trial court and ordered the full
enforcement of the California judgment.
In Soorajmull Nagarmull vs.
Binalbagan-Isabela Sugar Co. Inc., one of
[17]
the early Philippine cases on the
enforcement of foreign judgments, this
Court has ruled that a judgment for a sum
of money rendered in a foreign court is
presumptive evidence of a right between
the parties and their successors-in-
interest by subsequent title, but when suit
for its enforcement is brought in a
Philippine court, such judgment may be
repelled by evidence of want of
jurisdiction, want of notice to the party,
collusion, fraud or clear mistake of law or
fact. In Northwest Orient Airlines, Inc., vs.
Court of Appeals,[18] the Court has said that
a party attacking a foreign judgment is
tasked with the burden of overcoming its
presumptive validity.
PAWI claims that its counsel, Mr.
Ready, has acted without its authority.
Verily, in this jurisdiction, it is clear that an
attorney cannot, without a client's
authorization, settle the action or subject
matter of the litigation even when he
honestly believes that such a settlement
will best serve his client's interest.[19]
In the instant case, the supplemental
settlement agreement was signed by the
parties, including Mr. Thomas Ready, on
06 October 1980. The agreement was
lodged in the California case on 26
November 1980 or two (2) days after the
pre-trial conference held on 24 November
1980. If Mr. Ready was indeed not
authorized by PAWI to enter into the
supplemental settlement agreement,
PAWI could have forthwith signified to
FASGI a disclaimer of the settlement.
Instead, more than a year after the
execution of the supplemental settlement
agreement, particularly on 09 October
1981, PAWI President Romeo S. Rojas sent
a communication to Elena Buholzer of
FASGI that failed to mention Mr. Ready's
supposed lack of authority. On the
contrary, the letter confirmed the terms of
the agreement when Mr. Rojas sought
forbearance for the impending delay in the
opening of the first letter of credit under
the schedule stipulated in the agreement.
It is an accepted rule that when a
client, upon becoming aware of the
compromise and the judgment thereon,
fails to promptly repudiate the action of
his attorney, he will not afterwards be
heard to complain about it.[20]
Nor could PAWI claim any prejudice
by the settlement. PAWI was spared from
possibly paying FASGI substantial
amounts of damages and incurring heavy
litigation expenses normally generated in with FASGI, it should have aptly raised the
a full-blown trial. PAWI, under the issue before the forum which issued the
agreement was afforded time to reimburse judgment in line with the principle of
FASGI the price it had paid for the international comity that a court of
defective wheels. PAWI, should not, after another jurisdiction should refrain, as a
its opportunity to enjoy the benefits of the matter of propriety and fairness, from so
agreement, be allowed to later disown the assuming the power of passing judgment
arrangement when the terms thereof on the correctness of the application of law
ultimately would prove to operate against and the evaluation of the facts of the
its hopeful expectations. judgment issued by another tribunal.[21]
Fraud, to hinder the enforcement
PAWI assailed not only Mr. Ready's
within this jurisdiction of a foreign
authority to sign on its behalf the
judgment, must be extrinsic, i.e., fraud
Supplemental Settlement Agreement but
based on facts not controverted or
denounced likewise his authority to enter
resolved in the case where judgment is
into a stipulation for judgment before the
rendered,[22] or that which would go to the
California court on 06 August 1982 on the
jurisdiction of the court or would deprive
ground that it had by then already
the party against whom judgment is
terminated the former's services. For his
rendered a chance to defend the action to
part, Mr. Ready admitted that while he did
which he has a meritorious case or
receive a request from Manuel Singson of
defense. In fine, intrinsic fraud, that is,
PAWI to withdraw from the motion of
fraud which goes to the very existence of
judgment, the request unfortunately came
the cause of action - such as fraud in
too late. In an explanatory telex, Mr. Ready
obtaining the consent to a contract - is
told Mr. Singson that under American
deemed already adjudged, and it,
Judicial Procedures when a motion for
therefore, cannot militate against the
judgment had already been filed a counsel
recognition or enforcement of the foreign
would not be permitted to withdraw
judgment
unilaterally without a court order. From
the time the stipulation for judgment was
entered into on 26 April 1982 until the Gil Miguel Puyat v. Ron Zabarte, G.R. No.
certificate of finality of judgment was 141536, February 26, 2001
issued by the California court on 07
The RTC granted respondents Motion
September 1982, no notification was
for Summary Judgment because
issued by PAWI to FASGI regarding its
petitioner, in his Answer, admitted the
termination of Mr. Ready's services. If
existence of the Judgment on Stipulation
PAWI were indeed hoodwinked by Mr.
for Entry in Judgment. Besides, he had
Ready who purportedly acted in collusion
already paid $5,000 to respondent, as
provided in the foreign judgment sought to
be enforced.[12] Hence, the trial court ruled
that, there being no genuine issue as to any
material fact, the case should properly be
resolved through summary judgment. The
CA affirmed this ruling.
We concur with the lower courts.
Summary judgment is a procedural device
for the prompt disposition of actions in
which the pleadings raise only a legal
issue, and not a genuine issue as to any
material fact. By genuine issue is meant a
question of fact that calls for the
presentation of evidence. It should be
distinguished from an issue that is sham,
contrived, set in bad faith and patently
unsubstantial
Petitioner alleges that jurisdiction
over Case No. C21-00265, which involved
partnership interest, was vested in the
Securities and Exchange Commission, not
in the Superior Court of California, County
of Contra Costa.
We disagree. In the absence of proof of
California law on the jurisdiction of courts,
we presume that such law, if any, is similar
to Philippine law. We base this conclusion
on the presumption of identity or
similarity, also known as processual
presumption.[18] The Complaint,[19] which
respondent filed with the trial court, was
for the enforcement of a foreign judgment.
He alleged therein that the action of the
foreign court was for the collection of a
sum of money, breach of promissory notes,
and damages.[20]
In our jurisdiction, such a case falls
under the jurisdiction of civil courts, not of
the Securities and Exchange Commission
(SEC). The jurisdiction of the latter is
exclusively over matters enumerated in
Section 5, PD 902-A,[21] prior to its latest
amendment. If the foreign court did not
really have jurisdiction over the case, as
petitioner claims, it would have been very
easy for him to show this. Since
jurisdiction is determined by the
allegations in a complaint, he only had to
submit a copy of the complaint filed with
the foreign court. Clearly, this issue did not
warrant trial.
Petitioner argues that the RTC should
have refused to entertain the Complaint
for enforcement of the foreign judgment
on the principle of forum non conveniens.
He claims that the trial court had no
jurisdiction, because the case involved
partnership interest, and there was
difficulty in ascertaining the applicable
law in California. All the aspects of the
transaction took place in a foreign country,
and respondent is not even Filipino.
We disagree. Under the principle of
forum non conveniens, even if the exercise
of jurisdiction is authorized by law, courts
may nonetheless refuse to entertain a case
for any of the following practical reasons:
1) The belief that the matter can be better
tried and decided elsewhere, either because
the main aspects of the case transpired in a
foreign jurisdiction or the material witnesses
have their residence there;
2) The belief that the non-resident plaintiff
sought the forum[,] a practice known as
forum shopping[,] merely to secure
procedural advantages or to convey or
harass the defendant;
3) The unwillingness to extend local judicial
facilities to non-residents or aliens when the
docket may already be overcrowded;
4) The inadequacy of the local judicial
machinery for effectuating the right sought
to be maintained; and
The difficulty of ascertaining foreign law.[27]
None of the aforementioned reasons
barred the RTC from exercising its
jurisdiction. In the present action, there
was no more need for material witnesses,
no forum shopping or harassment of
petitioner, no inadequacy in the local
machinery to enforce the foreign
judgment, and no question raised as to the
application of any foreign law.
Authorities agree that the issue of
whether a suit should be entertained or
dismissed on the basis of the above-
mentioned principle depends largely upon
the facts of each case and on the sound
discretion of the trial court.[28] Since the
present action lodged in the RTC was for
the enforcement of a foreign judgment,
there was no need to ascertain the rights
and the obligations of the parties based on
foreign laws or contracts. The parties
needed only to perform their obligations
under the Compromise Agreement they
had entered into.
Under Section 48, Rule 39 of the 1997
Rules of Civil Procedure, a judgment in an
action in personam rendered by a foreign
tribunal clothed with jurisdiction is
presumptive evidence of a right as
between the parties and their successors-
in-interest by a subsequent title.[29]
Also, under Section 5(n) of Rule 131, a
court -- whether in the Philippines or
elsewhere -- enjoys the presumption that
it is acting in the lawful exercise of its
jurisdiction, and that it is regularly
performing its official duty.[30] Its judgment
may, however, be assailed if there is
evidence of want of jurisdiction, want of
notice to the party, collusion, fraud or clear
mistake of law or fact. But precisely, this
possibility signals the need for a local trial
court to exercise jurisdiction. Clearly, the
application of forum non coveniens is not
called for.
The grounds relied upon by petitioner
are contradictory. On the one hand, he
insists that the RTC take jurisdiction over
the enforcement case in order to invalidate
the foreign judgment; yet, he avers that the
trial court should not exercise jurisdiction
over the same case on the basis of forum
non conveniens. Not only do these defenses
weaken each other, but they bolster the
finding of the lower courts that he was
merely maneuvering to avoid or delay
payment of his obligation.
Oil & Natural Gas Commission v. CA, G.R.
No. 114323, September 28, 1999
The foreign court explicitly declared
in its Order that Award Paper No. 3/B-1
shall be part of the decree. This curt ruling
of the foreign court may be categorized in
the nature of memorandum decisions or
those which adopt by reference the
findings of facts and conclusions of law of
inferior tribunals. In this jurisdiction, it has
been held that memorandum decisions do
not transgress the constitutional
requirement in Article VIII, Section 14, on
clearly and distinctly stating the facts and
the law on which the decision is based.[16]
Nonetheless, it would be more prudent for
a memorandum decision not to be simply
limited to the dispositive portion but to
state the nature of the case, summarize the
facts with references to the record, and
contain a statement of the applicable laws
and jurisprudence and the tribunals
assessments and conclusions on the case.
This practice would better enable a court
to make an appropriate consideration of
whether the dispositive portion of the
judgment sought to be enforced is
consistent with the findings of facts and
conclusions of law made by the tribunal
that rendered the decision. This is
particularly true where the decisions,
orders, or resolutions came from a court in
another jurisdiction. Otherwise, the
enforcement of the decisions would be
based on presumptions that laws in other
jurisdictions are similar to our laws, at the
expense of justice based on the merits.
Moreover, the constitutional guideline
set forth in Article VIII, Section 14 cannot
prevail over the fundamental elements of
due process. Matters of procedure even if
laid down in the Constitution must be
tempered by substantial justice provided
it has factual and legal basis. Considering
that the case involves significant
properties, the overriding consideration of
a judgment based on the merits should
prevail over the primordial interests of
strict enforcement on matters of
technicalities. Procedural lapses, absent
any collusion or intent to defraud the
parties or mislead the tribunals, should
not be allowed to defeat the claim of a
party who is not well-informed in the
technical aspects of the case but whose
interest is merely to enforce what he
believes to be his rightful claim.
In this case, considering that
petitioner simply prayed for the remand of
the case to the lower court, the outright
ruling and adherence to the foreign courts
order adopting by reference another
entitys findings and conclusion was
misplaced. The adjudication of this case
demands a full ventilation of the facts and
issues and the presentation of their
respective arguments in support and in
rebuttal of the claims of the contending
parties. This is all the more applicable
herein since the Court is not a trier of
facts,[17] but oftentimes simply relies on the
cold pages of the silent records of the case.
 ACCORDINGLY, in the interest of due
process, the case is REMANDED to the
Regional Trial Court of Surigao City for
further proceedings.
Mijares v. Hon. Ranada, G.R. No. 139325.
April 12, 200
What provision, if any, then should apply in
determining the filing fees for an action to enforce a
foreign judgment?
SEC. 48. Effect of foreign judgments. The effect of a
judgment of a tribunal of a foreign country, having
jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the
judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the
judgment is presumptive evidence of a right as
between the parties and their successors in interest by
a subsequent title;
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of
law or fact.
There is an evident distinction between a foreign
judgment in an action in rem and one in personam. For
an action in rem, the foreign judgment is deemed
conclusive upon the title to the thing, while in an action
in personam, the foreign judgment is presumptive, and
not conclusive, of a right as between the parties and
their successors in interest by a subsequent title. [21]
However, in both cases, the foreign judgment is
susceptible to impeachment in our local courts on the
grounds of want of jurisdiction or notice to the party, [22]
collusion, fraud,[23] or clear mistake of law or fact.[24]
Thus, the party aggrieved by the foreign judgment is
entitled to defend against the enforcement of such
decision in the local forum. It is essential that there
should be an opportunity to challenge the foreign
judgment, in order for the court in this jurisdiction to
properly determine its efficacy.[25]
It is clear then that it is usually necessary for an
action to be filed in order to enforce a foreign
judgment[26], even if such judgment has conclusive
effect as in the case of in rem actions, if only for the
purpose of allowing the losing party an opportunity to
challenge the foreign judgment, and in order for the
court to properly determine its efficacy.[27]
Consequently, the party attacking a foreign judgment
has the burden of overcoming the presumption of its
validity.[28]
The rules are silent as to what initiatory procedure
must be undertaken in order to enforce a foreign
judgment in the Philippines. But there is no question
that the filing of a civil complaint is an appropriate
measure for such purpose. A civil action is one by
which a party sues another for the enforcement or
protection of a right,[29] and clearly an action to enforce
a foreign judgment is in essence a vindication of a right
prescinding either from a conclusive judgment upon
title or the presumptive evidence of a right.[30] Absent
perhaps a statutory grant of jurisdiction to a quasi-
judicial body, the claim for enforcement of judgment
must be brought before the regular courts
There are distinctions, nuanced but discernible,
between the cause of action arising from the
enforcement of a foreign judgment, and that
arising from the facts or allegations that
occasioned the foreign judgment.
They may pertain to the same set of facts, but
there is an essential difference in the right-duty
correlatives that are sought to be vindicated.
For example, in a complaint for damages against a
tortfeasor, the cause of action emanates from the
violation of the right of the complainant through
the act or omission of the respondent.
On the other hand, in a complaint for the
enforcement of a foreign judgment awarding
damages from the same tortfeasor, for the
violation of the same right through the same
manner of action, the cause of action derives not
from the tortious act but from the foreign
judgment itself.
More importantly, the matters for proof are different.
Using the above example, the complainant will have
to establish before the court the tortious act or
omission committed by the tortfeasor, who in turn is
allowed to rebut these factual allegations or prove
extenuating circumstances. Extensive litigation is thus
conducted on the facts, and from there the right to
and amount of damages are assessed. On the other
hand, in an action to enforce a foreign judgment, the
matter left for proof is the foreign judgment itself, and
not the facts from which it prescinds
Petitioners go on to add that among the actions
the Court has recognized as being incapable of
pecuniary estimation include legality of conveyances
and money deposits,[38] validity of a mortgage,[39] the
right to support,[40] validity of documents,[41] rescission
of contracts,[42] specific performance,[43] and validity or
annulment of judgments.[44] It is urged that an action for
enforcement of a foreign judgment belongs to the same
class.
This is an intriguing argument, but ultimately it is
self-evident that while the subject matter of the action
is undoubtedly the enforcement of a foreign judgment,
the effect of a providential award would be the
adjudication of a sum of money. Perhaps in theory,
such an action is primarily for the enforcement of the
foreign judgment, but there is a certain obtuseness to
that sort of argument since there is no denying that the
enforcement of the foreign judgment will necessarily
result in the award of a definite sum of money.
But before we insist upon this conclusion past
beyond the point of reckoning, we must examine its
possible ramifications. Petitioners raise the point that a
declaration that an action for enforcement of foreign
judgment may be capable of pecuniary estimation
might lead to an instance wherein a first level court
such as the Municipal Trial Court would have
jurisdiction to enforce a foreign judgment. But under the
statute defining the jurisdiction of first level courts, B.P.
129, such courts are not vested with jurisdiction over
actions for the enforcement of foreign judgments.
Section 33 of B.P. 129 refers to instances wherein
the cause of action or subject matter pertains to an
assertion of rights and interests over property or a sum
of money. But as earlier pointed out, the subject matter
of an action to enforce a foreign judgment is the foreign
judgment itself, and the cause of action arising from the
adjudication of such judgment.
 An examination of Section 19(6), B.P. 129 reveals
that the instant complaint for enforcement of a foreign
judgment, even if capable of pecuniary estimation,
would fall under the jurisdiction of the Regional Trial
Courts, thus negating the fears of the petitioners.
Indeed, an examination of the provision indicates that
it can be relied upon as jurisdictional basis with respect
to actions for enforcement of foreign judgments,
provided that no other court or office is vested
jurisdiction over such complaint:
Sec. 19. Jurisdiction in civil cases. Regional Trial
Courts shall exercise exclusive original jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of
any court, tribunal, person or body exercising
jurisdiction or any court, tribunal, person or body
exercising judicial or quasi-judicial functions.
Thus, we are comfortable in asserting the
obvious, that the complaint to enforce the US District
Court judgment is one capable of pecuniary estimation.
But at the same time, it is also an action based on
judgment against an estate, thus placing it beyond the
ambit of Section 7(a) of Rule 141. What provision then
governs the proper computation of the filing fees over
the instant complaint? For this case and other similarly
situated instances, we find that it is covered by Section
7(b)(3), involving as it does, other actions not involving
property
One more word. It bears noting that Section
48, Rule 39 acknowledges that the Final Judgment
is not conclusive yet, but presumptive evidence of
a right of the petitioners against the Marcos Estate.
Moreover, the Marcos Estate is not precluded to
present evidence, if any, of want of jurisdiction,
want of notice to the party, collusion, fraud, or clear
mistake of law or fact. This ruling, decisive as it is
on the question of filing fees and no other, does not
render verdict on the enforceability of the Final
Judgment before the courts under the jurisdiction
of the Philippines, or for that matter any other issue
which may legitimately be presented before the
trial court. Such issues are to be litigated before
the trial court, but within the confines of the
matters for proof as laid down in Section 48, Rule
39. On the other hand, the speedy resolution of this
claim by the trial court is encouraged, and
contumacious delay of the decision on the merits
will not be brooked by this Court.
Quasha et al., v. Court of Appeals, G.R.
No. 182013. December 4, 200
Moreover, there is actually no foreign judgment or
order that is being enforced in this jurisdiction
because what is involved is the prerogative of
petitioner LIRL, through its duly authorized
representative, which in this case is its appointed
liquidators, to terminate and engage the services of a
counsel, which is an internal affair that requires no
prior recognition in a separate action. The right of
petitioner LIRL to terminate the authority of its counsel
includes the right to cause a change or substitution of
counsel at any stage of the proceedings.
Borthwick vs. Castro Bartolome, 152
SCRA 229, 198
1. Is a foreign judgment against a person rendered
without jurisdiction over the cause of action and without
proper summons to the defendant enforceable in the
Philippines?
It is true that a foreign judgment against a person is
merely "presumptive evidence of a right as between the
parties," and rejection thereof may be justified, among
others, by "evidence of a want of jurisdiction" of the
issuing authority, under Rule 39 of the Rules of Court.22
In the case at bar, the jurisdiction of the Circuit Court of
Hawaii hinged entirely on the existence of either of two
facts in accordance with its State laws, i.e., either
Borthwick owned real property in Hawaii, or the
promissory notes sued upon resulted from his business
transactions therein. Scallon's complaint clearly
alleged both facts. Borthwick was accorded opportunity
to answer the complaint and impugn those facts, but he
failed to appear and was in consequence declared in
default. There thus exists no evidence in the record of
the Hawaii case upon which to lay a conclusion of lack
of jurisdiction, as Borthwick now urges.
The opportunity to negate the foreign court's
competence by proving the non-existence of said
jurisdictional facts established in the original action,
was again afforded to Borthwick in the Court of First
Instance of Makati, where enforcement of the Hawaii
judgment was sought. This time it was the summons of
the domestic court which Borthwick chose to ignore,
but with the same result: he was declared in default.
And in the default judgment subsequently promulgated,
the Court a quo decreed enforcement of the judgment
affirming among others the jurisdictional facts, that
Borthwick owned real property in Hawaii and
transacted business therein.
Klaxon Co. vs. Stentor Electric
Manufacturing Co.313 U.S. 487 (1941)
Must federal district courts apply the conflict of
law rules prevailing in the state where the court
sits when deciding a case based upon diversity
jurisdiction?
Yes. Federal courts cannot make independent
determinations of what the law in the state
where the court sits should be, but are required
to apply the conflicts rules of the state when
deciding diversity jurisdiction cases. An
independent general law of conflicts does not
exist. Each state in the federal system is free to
determine whether a specified matter is to be
governed by the law of the forum or some other
law. There must, therefore, be uniformity
within each state in order to avoid forum
shopping between state and federal courts
within each state. The proper function of the
federal courts is to determine what the state
law is, rather than what the law should be. Any
other decision would lead to a disruption of the
equal administration of justice in state and
federal courts that sit in the same state and
apply the same state law. Reversed and
remanded.
Siedler v. Jacobson, 383 N.Y. S.2d 833
(NY Sup.Ct.App.1976
The Austrian judgment should not be enforceable in New
York for lack of jurisdiction over the Jacobson.
Analysis of the legislative history of Article 53 makes clear
that the statute did not intend to adopt the broad definition
of “transacting any business” applicable under CPLR 302 as
the criterion for extending recognition to foreign country
judgments themselves bottomed upon correspondingly
liberal bases of jurisdiction. While this Court is cognizant of
the desirability of affording recognition to foreign country
judgments so that judgments obtained in our own courts
will receive reciprocally favorable treatment abroad, the
nature of defendant's solitary act in this case was so casual
and incidental to the foreign forum that it could not possibly
serve as a jurisdictional predicate sufficient to grant
conclusive effect to the default judgment sued upon.
Bridgeway Corp. V. Citibank, 201 F. 3d
134
As a policy matter, parties in foreign proceedings
should not be required to explicitly assert the position
that the particular forum in which they are litigating is
unfair and impartial to preserve their right to challenge
the enforceability of the judgment rendered by that
tribunal in a subsequent proceeding. Indeed, the very
reason statutes such as CPLR Article 53 exist is so
that parties who believe that they have not been
treated fairly in foreign courts have an avenue of
redress in courts in the United States. To hold that
Citibank is barred from collaterally attacking the
Liberian Judgment on the ground that it failed to
challenge the fairness and impartiality of the Liberian
judicial system would offend the very notion of due
process that statutes such as CPLR Article 53 were
designed to uphold.
Similarly, a foreign country judgment "need not be
recognized" if:
(1) the foreign court did not have subject
matter jurisdiction;
(2) the defendant in the proceedings in the
foreign court did not receive notice of the
proceedings in sufficient time to enable a
defense;
(3) the judgment was obtained by fraud;
(4) the cause of action violates public policy;
(5) the judgment conflicts with another final
and conclusive judgment;
(6) the proceeding in the foreign country was
contrary to an agreement between the
parties under which the dispute in question
was to be settled otherwise than by
proceedings in that court; or
(7) the foreign court was a seriously
inconvenient forum for the trial of the action.
CPLR § 5304(b).
These bases of non-recognition are discretionary
In this case, Citibank does not dispute that Bridgeway
has established the first three elements of a prima
face case. Rather, Citibank challenges enforcement of
the Liberian Judgment on the ground that Bridgeway
has failed to offer any evidence that the Liberian
Supreme Court was impartial or that its procedures
were *287 compatible with due process of law, at the
time the Liberian Judgment was rendered. On the
record before the Court, a reasonable factfinder could
only conclude that, at the time the judgment at issue
here was rendered, the Liberian judicial system was
not fair and impartial and did not comport with the
requirements of due process. The Liberian Judgment
is therefore unenforceable as a matter of law.
First, the record demonstrates that, throughout the
period during which the Liberian action was pending,
the country was embroiled in a civil war. The country
was in a state of chaos, as the various factions fought.
The Liberian Constitution was ignored. Some 200,000
Liberian citizens were killed, more than one million
more were left homeless, and approximately 750,000
fled Liberia to seek refuge in other countries. It is
difficult to imagine any judicial system functioning
properly in these circumstances.
Second, the record shows that the regular procedures
governing the selection of justices and judges had not
been followed since the suspension of the 1986
Constitution. As a result, justices and judges served at
the will of the leaders of the warring factions, and
judicial officers were subject to political and social
influence. The Liberian judicial system simply did not
provide for impartial tribunals.
Third, the courts that did exist were barely functioning.
The due process rights of litigants were often ignored,
as corruption and incompetent handling of cases were
prevalent. Although the Liberian judicial system might
have been modeled on our own, it did not comport
with the requirements of due process during the
period of civil war.
Bridgeway offers the following as evidence that the
Liberian judicial system is a system of jurisprudence
likely to secure an impartial administration of justice:
(1) a statement in the certification of James E. Pierre,
Esq., a member of the Liberian Bar and the attorney
who represented Bridgeway in the Liberian action,
that the procedural rules of Liberia's courts are
modeled on those of the New York State courts
(Certification of James E. Pierre dated April 23, 1998
¶ 6); (2) H. Varney G. Sherman's statement in his
First Sworn Statement that, "[i]n essence, the Liberian
Government is patterned after state governments of
the United States of America" (Varney Aff. I ¶ 2); and
(3) a statement in the certification of N. Oswald Tweh,
former Vice President of the Liberian National Bar
Association and also counsel to Bridgeway, that
"Liberia's judicial system was and is structured and
administered to afford party-litigants therein impartial
justice." (Certification of N. Oswald Tweh dated July 6,
1998 ¶ 5).
The evidence presented by Bridgeway does not
create a genuine issue of fact requiring a trial in this
action. First, that the Liberian judicial system was
modeled after judicial systems in the United States
does not mean, of course, that the Liberian system
was actually implemented in a manner consistent with
procedures used in the American courts. Second, the
statement that "Liberia's judicial system was and is
structured and administered to afford party-litigants
therein impartial justice" is purely conclusory and is
not, by itself, sufficient to raise a genuine issue of fact.
See Kulak v. City of New York, 88 F.3d 63, 71 (2d
Cir.1996) ("Though we must accept as true the
allegations of the party defending against the
summary judgment motion, drawing all reasonable
inferences in his favor, conclusory statements,
conjecture, or speculation by the party resisting the
motion will not defeat summary judgment.") (citation
omitted); Tadros v. Coleman, 717 F. Supp. 996, 1006
(S.D.N.Y.1989) ("[S]elf-serving, conclusory allegations
cannot defeat" motion for summary judgment), aff'd,
898 F.2d 10 (2d Cir.), cert. denied, 498 U.S. 869, 111
S. Ct. 186, 112 L. Ed. 2d 149 (1990).
No genuine issues of fact exist for trial. On the record
before the Court, a reasonable factfinder could only
conclude that the *288 Liberian Judgment was
rendered by a system that does not provide impartial
tribunals or procedures compatible with the
requirements of due process. Accordingly, the
Liberian Judgment will not be enforced.
Chapter six: Internet cases
Bensuan Restaurant Corporation vs.
Richard B. King, Docket No. 96-9344;
Decided: September 10, 1997
we conclude that Bensusan has failed to allege
that King or his agents committed a tortious act
in New York as required for exercise of personal
jurisdiction under CPLR § 302(a)(2). The acts
giving rise to Bensusan's lawsuit-including the
authorization and creation of King's web site, the
use of the words “Blue Note” and the Blue Note
logo on the site, and the creation of a hyperlink
to Bensusan's web site-were performed by
persons physically present in Missouri and not
in New York. Even if Bensusan suffered injury in
New York, that does not establish a tortious act
in the state of New York within the meaning of §
302(a)(2).
Insofar as is pertinent herein it restricted the
exercise of jurisdiction under sub-paragraph
(a)(3) to persons who expect or should
reasonably expect the tortious act to have
consequences in the state and in addition derive
substantial revenue from interstate commerce.
To satisfy the latter requirement, Bensusan
relies on the arguments that King participated in
interstate commerce by hiring bands of national
stature and received revenue from customers-
students of the University of Missouri-who,
while residing in Missouri, were domiciliaries of
other states. These alleged facts were not
sufficient to establish that substantial revenues
were derived from interstate commerce, a
requirement that “is intended to exclude non-
domiciliaries whose business operations are of a
local character
America Online, Inc., v. Superior Court
(Mendoza) (2001) 108 Cal. Rptr. 2d 699,
90 Cal. App. 4th 1
This petition for writ of mandate was filed by petitioner
America Online, Inc. (AOL) following the denial of its
motion to stay or dismiss a putative consumer class-
action lawsuit. The motion was based on a claim that
California is an inconvenient forum in which to litigate
the dispute concerning AOL's proprietary Internet
service. In support of its motion, AOL exclusively
relied on a forum selection clause in its contracts with
real parties in interest, Al Mendoza, Jr. (Mendoza)
and the potential class members, which designated
Virginia as the jurisdiction in which all disputes arising
out of the relationship would be litigated. The
agreement also included a choice of law provision
requiring that Virginia law be applied to any such
dispute.
We conclude the court properly denied AOL's motion.
First, one of the causes of action seeks class action
relief under the California Consumers [90 Cal. App.
4th 5] Legal Remedies Act (CLRA) (Civ. Code, §
1750 et seq.). This act contains a provision that voids
any purported waiver of rights under the CLRA as
being contrary to California public policy. Enforcement
of the contractual forum selection and choice of law
clauses would be the functional equivalent of a
contractual waiver of the consumer protections under
the CLRA and, thus, is prohibited under California
law.
Second, we conclude that Virginia law does not allow
consumer lawsuits to be brought as class actions and
the available remedies are more limited than those
afforded by California law. Accordingly, the rights of
Mendoza and the California consumer class members
would be substantially diminished if they are required
to litigate their dispute in Virginia, thereby violating an
important public policy underlying California's
consumer protection law. For this independent
reason, the forum selection clause is unenforceable.
Panavision International vs. Dennis Toeppen, 9th
Circuit Court of Appeals, No. 97-55467, 17 April 1998
(Jurisdiction
A district court's determination that personal
jurisdiction can properly be exercised is a question of
law reviewable de novo when the underlying facts are
undisputed. Fireman's Fund Ins. Co. v. National
Bank of Coops., 103 F.3d 888, 893 (9th Cir.1996). A
district court's factual findings regarding jurisdiction
are reviewed for clear error. Adler v. Federal Rep. of
Nig., 107 F.3d 720, 723 (9th Cir.1997).
There is no applicable federal statute governing
personal jurisdiction in this case. Accordingly, we
apply the law of California, the state in which the
district court sits. Core-Vent Corp. v. Nobel
Industries AB, 11 F.3d 1482, 1484 (9th Cir.1993).
California's long-arm statute permits a court to
exercise personal jurisdiction over a defendant to the
extent permitted by the Due Process Clause of the
Constitution. Cal.Code Civ. P. § 410.10;  Gordy v.
Daily News, L.P., 95 F.3d 829, 831 (9th Cir.1996).
The issue we address, therefore, is whether the
requirements of due process are satisfied by the
district court's exercise of personal jurisdiction over
Toeppen. Core-Vent, 11 F.3d at 1484.
Personal jurisdiction may be founded on either
general jurisdiction or specific jurisdiction.
1. General Jurisdiction
 General jurisdiction exists when a defendant is
domiciled in the forum state or his activities there are
“substantial” or “continuous and systematic.”
Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 414-16, 104 S.Ct. 1868, 1872-73, 80
L.Ed.2d 404 (1984). The district court correctly
concluded that it did not have general jurisdiction over
Toeppen. Toeppen is domiciled in Illinois and his
activities in California are not substantial or
continuous and systematic. See Toeppen, 938
F.Supp. at 620.
2. Specific Jurisdiction
We apply a three-part test to determine if a district
court may exercise specific jurisdiction:
(1) The nonresident defendant must do some act or
consummate some transaction with the forum or
perform some act 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) the claim must be one which arises out
of or results from the defendant's forum-related
activities;  and (3) exercise of jurisdiction must be
reasonable.
Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d
267, 270 (9th Cir.1995) (quotation omitted).
The first of these requirements is purposeful
availment.
a. Purposeful Availment
The purposeful availment requirement ensures that
a nonresident defendant will not be haled into court
based upon “random, fortuitous or attenuated”
contacts with the forum state. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183-
84, 85 L.Ed.2d 528 (1985). This requirement is
satisfied if the defendant “has taken deliberate action”
toward the forum state. Ballard v. Savage, 65 F.3d
1495, 1498 (9th Cir.1995). It is not required that a
defendant be physically present or have physical
contacts with the forum, so long as his efforts are
“purposefully directed” toward forum residents. Id.
i. Application to the Internet
Applying principles of personal jurisdiction to conduct
in cyberspace is relatively new. “With this global
revolution looming on the horizon, the development of
the law concerning the permissible scope of personal
jurisdiction based on Internet use is in its infant
stages. The cases are scant.” Zippo Mfg. Co. v.
Zippo Dot Com, Inc., 952 F.Supp. 1119, 1123
(W.D.Pa.1997). We have, however, recently
addressed the personal availment aspect of personal
jurisdiction in a case involving the Internet. See
Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th
Cir.1997).
In Cybersell, an Arizona corporation, Cybersell, Inc.
(“Cybersell AZ”), held a registered servicemark for the
name Cybersell. A Florida corporation, Cybersell,
Inc. (“Cybersell FL”), created a web site with the
domain name cybsell.com. The web page had the
word “Cybersell” at the top and the phrase, “Welcome
to Cybersell!” Id. at 415. Cybersell AZ claimed that
Cybersell FL infringed its registered trademark and
brought an action in the district court in Arizona. We
held the Arizona court could not exercise personal
jurisdiction over Cybersell FL, because it had no
contacts with Arizona other than maintaining a web
page accessible to anyone over the Internet. Id. at
419-420.
In reaching this conclusion in Cybersell, we carefully
reviewed cases from other circuits regarding how
personal jurisdiction should be exercised in
cyberspace. We concluded that no court had ever
held that an Internet advertisement alone is sufficient
to subject a party to jurisdiction in another state. Id.
at 418. In each case where personal jurisdiction was
exercised, there had been “something more” to
“indicate that the defendant purposefully (albeit
electronically) directed his activity in a substantial way
to the forum state.” Id. Cybersell FL had not done
this, and the district court could not exercise personal
jurisdiction over it.
Personal jurisdiction was properly exercised,
however, in CompuServe, Inc. v. Patterson, 89 F.3d
1257 (6th Cir.1996). There, the Sixth Circuit held
that a Texas resident who had advertised his product
via a computer information service, CompuServe,
located in Ohio, was subject to personal jurisdiction in
Ohio. The court found that the Texas resident had
taken direct actions that created a connection with
Ohio. Id. at 1264. He subscribed to CompuServe,
he loaded his software onto the CompuServe system
for others to use, and he advertised his software on
the CompuServe system. Id.
In the present case, the district court's decision to
exercise personal jurisdiction over Toeppen rested on
its determination that the purposeful availment
requirement was satisfied by the “effects doctrine.”
That doctrine was not applicable in our Cybersell
case. There, we said:  “Likewise unpersuasive is
Cybersell AZ's reliance on Panavision International v.
Toeppen, 938 F.Supp. 616 (C.D.Cal.1996), [the
district court's published opinion in this case], where
the court found the ‘purposeful availment’ prong
satisfied by the effects felt in California, the home
state of Panavision, from Toeppen's alleged out-of-
state scheme to register domain names using the
trademarks of California companies, including
Panavision, for the purpose of extorting fees from
them. Again, there is nothing analogous about
Cybersell FL's conduct.” Cybersell, 130 F.3d at 420
n. 6.
Our reference in Cybersell to “the effects felt in
California” was a reference to the effects doctrine.
ii. The Effects Doctrine
In tort cases, jurisdiction may attach if the
defendant's conduct is aimed at or has an effect in the
forum state. Ziegler v. Indian River County, 64 F.3d
470, 473 (9th Cir.1995);  see Calder v. Jones, 465
U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)
(establishing an “effects test” for intentional action
aimed at the forum state). Under Calder, personal
jurisdiction can be based upon:  “(1) intentional
actions (2) expressly aimed at the forum state (3)
causing harm, the brunt of which is suffered-and
which the defendant knows is likely to be suffered-in
the forum state.” Core-Vent Corp. v. Nobel Industries
AB, 11 F.3d 1482, 1486 (9th Cir.1993).
As the district court correctly stated, the present case
is akin to a tort case. Panavision, 938 F.Supp. at
621;  see also Ziegler, 64 F.3d at 473 (application of
the purposeful availment prong differs depending on
whether the underlying claim is a tort or contract
claim). Toeppen purposefully registered
Panavision's trademarks as his domain names on the
Internet to force Panavision to pay him money.
Panavision, 938 F.Supp. at 621. The brunt of the
harm to Panavision was felt in California. Toeppen
knew Panavision would likely suffer harm there
because, although at all relevant times Panavision
was a Delaware limited partnership, its principal place
of business was in California, and the heart of the
theatrical motion picture and television industry is
located there. Id. at 621-622.
The harm to Panavision is similar to the harm to the
Indianapolis Colts football team in Indianapolis Colts,
Inc. v. Metropolitan Baltimore Football Club Ltd.
Partnership, 34 F.3d 410 (7th Cir.1994). There, the
Indianapolis Colts brought a trademark infringement
action in the district court in Indiana against the
Canadian Football League's new team, the “Baltimore
CFL Colts.” Id. at 411. The Seventh Circuit held
that the Baltimore CFL Colts team was subject to
personal jurisdiction in Indiana even though its only
activity directed toward Indiana was the broadcast of
its games on nationwide cable television. Id.
Because the Indianapolis Colts used their trademarks
in Indiana, any infringement of those marks would
create an injury which would be felt mainly in Indiana,
and this, coupled with the defendant's “entry” into the
state by the television broadcasts, was sufficient for
the exercise of personal jurisdiction. Id.
Toeppen argues he has not directed any activity
toward Panavision in California, much less “entered”
the state. He contends that all he did was register
Panavision's trademarks on the Internet and post web
sites using those marks;  if this activity injured
Panavision, the injury occurred in cyberspace.2
We agree that simply registering someone else's
trademark as a domain name and posting a web site
on the Internet is not sufficient to subject a party
domiciled in one state to jurisdiction in another.
Cybersell, 130 F.3d at 418. As we said in Cybersell,
there must be “something more” to demonstrate that
the defendant directed his activity toward the forum
state. Id. Here, that has been shown. Toeppen
engaged in a scheme to register Panavision's
trademarks as his domain names for the purpose of
extorting money from Panavision. His conduct, as
he knew it likely would, had the effect of injuring
Panavision in California where Panavision has its
principal place of business and where the movie and
television industry is centered.3 Under the “effects
test,” the purposeful availment requirement necessary
for specific, personal jurisdiction is satisfied.
b. Defendant's Forum-Related Activities
The second requirement for specific, personal
jurisdiction is that the claim asserted in the litigation
arises out of the defendant's forum related activities.
Ziegler, 64 F.3d at 474. We must determine if the
plaintiff Panavision would not have been injured “but
for” the defendant Toeppen's conduct directed toward
Panavision in California. See Ballard, 65 F.3d at
1500.
This requirement is satisfied. Toeppen's registration
of Panavision's trademarks as his own domain names
on the Internet had the effect of injuring Panavision in
California. But for Toeppen's conduct, this injury
would not have occurred. Panavision's claims arise
out of Toeppen's California-related activities.
c. Reasonableness
Even if the first two requirements are met, in order
to satisfy the Due Process Clause, the exercise of
personal jurisdiction must be reasonable. Ziegler, 64
F.3d at 474-75. For jurisdiction to be reasonable, it
must comport with “fair play and substantial justice.”
Burger King, 471 U.S. at 476, 105 S.Ct. at 2184.
“[W]here a defendant who purposefully has directed
his activities at forum residents seeks to defeat
jurisdiction, he must present a compelling case that
the presence of some other considerations would
render jurisdiction unreasonable.” Core-Vent, 11
F.3d at 1487 (citing Burger King, 471 U.S. at 476-77,
105 S.Ct. at 2184-85).
As we have said, Toeppen purposefully directed his
activities at Panavision in California. This placed the
burden on him to “present a compelling case that the
presence of some other considerations would render
jurisdiction unreasonable.” Id.
In addressing the question of reasonableness, we
consider seven factors:  (1) the extent of a defendant's
purposeful interjection;  (2) the burden on the
defendant in defending in the forum;  (3) the extent of
conflict with the sovereignty of the defendant's state;
 (4) the forum state's interest in adjudicating the
dispute;  (5) the most efficient judicial resolution of the
controversy;  (6) the importance of the forum to the
plaintiff's interest in convenient and effective relief;
 and (7) the existence of an alternative forum. Burger
King, 471 U.S. at 476-77, 105 S.Ct. at 2184-85. No
one factor is dispositive;  a court must balance all
seven. Core-Vent, 11 F.3d at 1488.
The district court found that Toeppen had not
presented a compelling case that jurisdiction was
unreasonable. Panavision, 938 F.Supp. at 622. We
agree. The balance of the Burger King factors which
we articulated in Core-Vent tips in favor of the
exercise of personal jurisdiction.
i. Purposeful Interjection
“Even if there is sufficient ‘interjection’ into the state to
satisfy the purposeful availment prong, the degree of
interjection is a factor to be weighed in assessing the
overall reasonableness of jurisdiction under the
reasonableness prong.” Core-Vent, 11 F.3d at 1488
(citing Insurance Company of North America v.
Marina Salina Cruz, 649 F.2d 1266, 1271 (9th
Cir.1981)). Here, the degree of interjection was
substantial.
Toeppen's acts were aimed at Panavision in
California. He registered Panavision's trademarks
as his domain names, knowing that this would likely
injure Panavision in California. In addition, he sent a
letter to Panavision in California demanding $13,000
to release his registration of Panavision.com. The
purposeful interjection factor weighs strongly in favor
of the district court's exercise of personal jurisdiction.
ii. Defendant's Burden in Litigating
A defendant's burden in litigating in the forum is a
factor in the assessment of reasonableness, but
unless the “inconvenience is so great as to constitute
a deprivation of due process, it will not overcome
clear justifications for the exercise of jurisdiction.”
Caruth v. International Psychoanalytical Ass'n, 59
F.3d 126, 128-29 (9th Cir.1995) (citing Roth v. Garcia
Marquez, 942 F.2d 617, 623 (9th Cir.1991)).
The burden on Toeppen as an individual living in
Illinois to litigate in California is significant, but the
inconvenience is not so great as to deprive him of due
process. As the district court stated, “ ‘in this era of
fax machines and discount air travel’ requiring
Toeppen to litigate in California is not constitutionally
unreasonable.” Panavision, 938 F.Supp. at 622
(quoting Sher v. Johnson, 911 F.2d 1357, 1365 (9th
Cir.1990)).
iii. Sovereignty
This factor concerns the extent to which the district
court's exercise of jurisdiction in California would
conflict with the sovereignty of Illinois, Toeppen's state
of domicile. Core-Vent, 11 F.3d at 1489. Such a
conflict is not a concern in this case. The allegations
in support of Panavision's state law claim and those in
support of its federal claim under the Trademark
Dilution Act require the same analysis. The federal
analysis would be the same in either Illinois or
California. In this circumstance, the exercise of
jurisdiction by a federal court in California does not
implicate sovereignty concerns of Illinois.
iv. Forum State's Interest
“California maintains a strong interest in providing an
effective means of redress for its residents tortiously
injured.” Gordy v. Daily News, L.P., 95 F.3d 829, 836
(9th Cir.1996) (citing Sinatra v. National Enquirer, Inc.,
854 F.2d 1191, 1200 (9th Cir.1988)). Panavision's
principal place of business is in California. This
factor weighs in Panavision's favor.
v. Efficient Resolution
This factor focuses on the location of the evidence
and witnesses. Caruth, 59 F.3d at 129. It is no
longer weighed heavily given the modern advances in
communication and transportation. Id. In any event,
due to the limited amount of evidence and few
potential witnesses in the present litigation, this factor
is probably neutral.
vi. Convenient & Effective Relief for Plaintiff
In evaluating the convenience and effectiveness of
relief for the plaintiff, we have given little weight to the
plaintiff's inconvenience. Ziegler, 64 F.3d at 476. It
may be somewhat more costly and inconvenient for
Panavision to litigate in another forum, but the burden
on Panavision is relatively slight. This factor is
essentially neutral, perhaps weighing slightly in
Toeppen's favor.
vii. Alternative Forum
Panavision has not demonstrated the unavailability of
an alternative forum. In this case, Illinois is an
alternative forum. As stated above, it may be more
costly and inconvenient for Panavision to litigate in
Illinois, but this is not an unreasonable burden. This
factor weighs in Toeppen's favor.
In balancing the Burger King factors, we conclude that
although some factors weigh in Toeppen's favor, he
failed to present a compelling case that the district
court's exercise of jurisdiction in California would be
unreasonable.
We conclude that all of the requirements for the
exercise of specific, personal jurisdiction are satisfied.
The district court properly exercised personal
jurisdiction over Toeppen. We next consider the
district court's summary judgment in favor of
Panavision on its trademark dilution claims.
Maritz, Inc. v. Cybergold, Inc., 947 F.
Supp. 1328 (E.D. Mo. 1996
 Due process requires that there be “minimum contacts”
between the non-resident defendant and the forum
state before a court can exercise personal jurisdiction
over the defendant.
 Sufficient contacts = defendant’s conduct and
connection with the forum state are such that he should
reasonably anticipate being haled into court there and
it does not offend notions of fair play and substantial
justice.
 5-part test for measuring minimum contacts:
o (1) the nature and quality of the contacts
with the forum state;
o (2) the quantity of those contacts:
o (3) the relation of the cause of action to the
contacts;
o (4) the interest of the forum state in
providing a forum for its residents;
o (5) the convenience of the parties.
 Note: only 3 factors are examined because they are the
most important ones
 1st factor: Through its website, CyberGold has
consciously decided to transmit advertising information
to all internet users, knowing that such information will
be transmitted globally. Thus, CyberGold's contacts are
of such a quality and nature, albeit a very new quality
and nature for personal jurisdiction jurisprudence, that
they favor the exercise of personal jurisdiction over
defendant.
 2nd factor: Cybergold has transmitted information into
Missouri 131 times for its potential customers.
Therefore, Cybergold is purposefully availing itself to
the privilege of conducting activities in Missouri.
 3rd factor: the action against CyberGold results from
alleged injuries that, at least in part, arise out of or
relate to Cybergold's website and the information
posted at the website. While Cybergold has not yet set
up its service of sending advertisements to internet
users on its mailing list, Cybergold's acts of developing a
mailing list through its acceptance of addresses on its
website are also part of the allegedly infringing activity
about which plaintiff complains.
 The Court also stated that the notions of fair play and
substantial justice do not dictate against the exercise of
personal jurisdiction over Cybergold in Missouri.
o Missouri has an interest in resolving this case
and in determining w/n a Missouri
corporation’s trademark is being infringed in
violation of a federal statute.
 Defendant's argument that venue is improper must also
be denied. Because the Court has concluded it has
personal jurisdiction over defendant, venue is proper in
this judicial district
Here, defendant clearly has not actually
commenced its service of sending
advertisements over the internet to internet
users on its mailing list. However, defendant
does, as discussed above, maintain a website
from which it sends out information regarding
its upcoming services. The information is an
advertisement of its services and solicits names
and addresses of internet users who are
potential users on its mailing list. Defendant is
using the internet to develop an indispensable
part of its advertising service its mailing list.
Thus, because of these activities, the Court
concludes that the "uses in commerce" test has
been satisfied. See Lobo Enters. v. Tunnel, Inc.,
822 F.2d 331, 333 (2d Cir.1987) ("in commerce"
requirement satisfied where "service mark has
been advertised significantly in travel guides or
publications having interstate circulation"); see
also Jerome Gilson, 1 Trademark Protection and
Practice § 5.11[2] at 5-234 (1996) ("Because
Internet communications transmit
instantaneously on a worldwide basis, there is
little question that the `in commerce'
requirement would be met in a typical Internet
*1336 message, be it trademark infringement
or false advertising"). The Court also concludes
that it is imminent and impending that
defendant will be fully operating its internet
advertising service in the near future. Both
developing a mailing list and obtaining
advertisers are integral to defendant's business.
Plaintiff need not wait until both are fully
established before it can maintain an action for
violation of the Lanham Act.
CompuServe vs. Patterson, 89 F. 3d 1257
No. 95-3452, Decided: July 22, 1996
ISSUE: Whether the Ohio Court can exercise jurisdiction over
Patterson. – YES.
HELD: CompuServe, as the party seeking assertion of in personam
jurisdiction, bears the burden of showing that such jurisdiction
exists. When, however, a district court rules on a jurisdictional
motion to dismiss made pursuant to Federal Rule of Civil Procedure
12(b)(2) without conducting an evidentiary hearing, the court must
consider the pleadings and affidavits in a light most favorable to the
plaintiff - here, CompuServe. To defeat such a motion, a party in
CompuServe's position need only make a prima facie showing of
jurisdiction. Dismissal in this procedural posture is proper only if all
the specific facts which the plaintiff (CompuServe) alleges
collectively fail to state a prima facie case for jurisdiction.
To determine whether personal jurisdiction exists over a
defendant, federal courts apply the law of the forum state, subject
to the limits of the Due Process Clause of the Fourteenth
Amendment.
The Ohio long-arm statute allows an Ohio court to exercise
personal jurisdiction over nonresidents of Ohio on claims arising
from, inter alia, the nonresident's transacting any business in
Ohio. Ohio Rev. Code Ann. Section(s) 2307.382(A) (Anderson 1995).
It is settled Ohio law, moreover, that the "transacting business"
clause of that statute was meant to extend to the federal
constitutional limits of due process, and that as a result Ohio
personal jurisdiction cases require an examination of those limits.
Further, personal jurisdiction may be either general or specific in
nature, depending on the nature of the contacts in a given case.
E.g., Reynolds, 23 F.3d at 1116. In the instant case, because
CompuServe bases its action on Patterson's act of sending his
computer software to Ohio for sale on its service, CompuServe
seeks to establish such specific personal jurisdiction over
Patterson.
The crucial federal constitutional inquiry is whether, given the
facts of the case, the nonresident defendant has sufficient
contacts with the forum state that the district court's exercise of
jurisdiction would comport with "traditional notions of fair play
and substantial justice." This court has repeatedly employed three
criteria to make this determination:
1. the defendant must purposefully avail himself of the
privilege of acting in the forum state or causing a consequence in
the forum state.
2. the cause of action must arise from the defendant's activities
there.
3. the acts of the defendant or consequences caused by the
defendant must have a substantial enough connection with the
forum to make the exercise of jurisdiction over the defendant
reasonable.
Patterson has knowingly made an effort - and, in fact,
purposefully contracted - to market a product in other states, with
Ohio-based CompuServe operating, in effect, as his distribution
center. Thus, it is reasonable to subject Patterson to suit in Ohio,
the state which is home to the computer network service he chose
to employ.
1. The "purposeful availment" requirement
This is a sine qua non requirement for in personam jurisdiction. The
"purposeful availment" requirement is satisfied when the
defendant's contacts with the forum state "proximately result
from actions by the defendant himself that create a `substantial
connection' with the forum State," and when the defendant's
conduct and connection with the forum are such that he "should
reasonably anticipate being haled into court there." Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985); Reynolds, 23 F.3d
at 1116.
This requirement does not, however, mean that a defendant must
be physically present in the forum state. As the Burger King Corp.
Court stated, "So long as a commercial actor's efforts are
`purposefully directed' toward residents of another State, we
have consistently rejected the notion that an absence of physical
contacts can defeat personal jurisdiction there."
Physical presence of an agent is not necessary for the transaction
of business in a state. The soliciting of insurance by mail, the
transmission of radio broadcasts into a state, and the sending of
magazines and newspapers into a state to be sold there by
independent contractors are all accomplished without the physical
presence of an agent; yet all have been held to constitute the
transaction of business in a state.
There is no question that Patterson himself took actions that
created a connection with Ohio in the instant case. He subscribed
to CompuServe, and then he entered into the SRA when he loaded
his software onto the CompuServe system for others to use and,
perhaps, purchase. Once Patterson had done those two things, he
was on notice that he had made contracts, to be governed by Ohio
law, with an Ohio-based company. Then, he repeatedly sent his
computer software, via electronic links, to the CompuServe system
in Ohio, and he advertised that software on the CompuServe
system. Moreover, he initiated the events that led to the filing of
this suit by making demands of CompuServe via e-mail.
The real question is whether these connections with Ohio are
"substantial" enough that Patterson should reasonably have
anticipated being haled into an Ohio court. The district court did
not think so. It looked to "cases involving interstate business
negotiations and relationships" and held that the relationship
between CompuServe and Patterson, because it was marked by a
"minimal course of dealing," was insufficient to satisfy the
purposeful availment test. Compare Reynolds, 23 F.3d at 1118-21
(holding that the contacts between an England-based association
and an Ohio plaintiff in a contract case were "superficial" where,
although mail and telephone communications had taken place, the
parties had engaged in no prior negotiations and expected no
future consequences) and Health Communications, Inc. v. Mariner
Corp., 860 F.2d 460, 463-65 (finding no jurisdiction over a
nonresident purchaser who had bought services from a corporation
in the forum state) with Burger King Corp., 471 U.S. at 479-82
(finding significant the defendant's reaching beyond Michigan to
negotiate with a Florida corporation for the purchase of a long-
term franchise). The district court deemed this case closer to
Reynolds and Health Communications than to Burger King Corp.,
and thus it found no purposeful availment on the part of
Patterson.
Patterson, unlike the nonresident defendant in Reynolds, entered
into a written contract with CompuServe which provided for the
application of Ohio law, and he then purposefully perpetuated
the relationship with CompuServe via repeated communications
with its system in Ohio. And, unlike the nonresident defendant in
Health Communications, Patterson was far more than a purchaser
of services; he was a third-party provider of software who used
CompuServe, which is located in Columbus, to market his wares
in Ohio and elsewhere.
In fact, it is Patterson's relationship with CompuServe as a
software provider and marketer that is crucial to this case. The
district court's analysis misses the mark because it disregards the
most salient facts of that relationship: that Patterson chose to
transmit his software from Texas to CompuServe's system in
Ohio, that myriad others gained access to Patterson's software via
that system, and that Patterson advertised and sold his product
through that system. Though all this happened with a distinct
paucity of tangible, physical evidence, there can be no doubt that
Patterson purposefully transacted business in Ohio.
Moreover, this was a relationship intended to be ongoing in
nature; it was not a "one-shot affair." Patterson sent software to
CompuServe repeatedly for some three years, and the record
indicates that he intended to continue marketing his software on
CompuServe.
Patterson deliberately set in motion an ongoing marketing
relationship with CompuServe, and he should have reasonably
foreseen that doing so would have consequences in Ohio.
Admittedly, merely entering into a contract with CompuServe
would not, without more, establish that Patterson had minimum
contacts with Ohio. By the same token, Patterson's injection of his
software product into the stream of commerce, without more,
would be at best a dubious ground for jurisdiction. Because
Patterson deliberately did both of those things, however, and
because of the other factors discussed, ample contacts exist to
support the assertion of jurisdiction in this case, and certainly an
assertion of jurisdiction by the state where the computer network
service in question is headquartered.
Patterson frequently contacted Ohio to sell his computer
software over CompuServe's Ohio-based system. Patterson
repeatedly sent his "goods" to CompuServe in Ohio for their
ultimate sale. CompuServe, in effect, acted as Patterson's
distributor, albeit electronically and not physically.
The district court's reliance on the minimum amount of software
sales which Patterson claims he enjoyed in Ohio is not plausible. "It
is the `quality' of the contacts," and not their number or status,
that determines whether they amount to purposeful availment.
Reynolds, 23 F.3d at 1119. Patterson's contacts with CompuServe
here were deliberate and repeated, even if they yielded little
revenue from Ohio itself.
Moreover, focus should not solely be on the sales that Patterson
made in Ohio, because that ignores the sales Patterson may have
made through CompuServe to others elsewhere. Patterson
sought to make those sales from Texas by way of CompuServe's
system in Ohio, and the sales then involved the passage of funds
through Ohio to Patterson in Texas.
Similarly, in the instant case, Patterson consciously reached out
from Texas to Ohio to subscribe to CompuServe, and to use its
service to market his computer software on the Internet. He
entered into a contract which expressly stated that it would be
governed by and construed in light of Ohio law. As the Burger King
Corp. Court noted, the purposeful direction of one's activities
toward a state has always been significant in personal jurisdiction
cases, particularly where individuals purposefully derive benefits
from interstate activities. Moreover, the Court continued, it could
be unfair to allow individuals who purposefully engage in
interstate activities for profit to escape having to account in other
states for the proximate consequences of those activities.
Patterson not only purposefully availed himself of CompuServe's
Ohio-based services to market his software, but that he also
"originated and maintained" contacts with Ohio when he
believed that CompuServe's competing product unlawfully
infringed on his own software. Patterson repeatedly sent both e-
mail and regular mail messages to CompuServe about his claim, and
he posted a message on one of CompuServe's electronic forums,
which outlined his case against CompuServe for anyone who
wished to read it. Moreover, the record shows that Patterson
demanded at least $100,000 to settle the matter.
The facts which CompuServe has alleged, viewed in the light most
favorable to CompuServe, support a finding that Patterson
purposefully availed himself of the privilege of doing business in
Ohio. He knowingly reached out to CompuServe's Ohio home, and
he benefitted from CompuServe's handling of his software and
the fees that it generated.
2. The requirement that the cause of action arises from
Patterson's activities in Ohio
The district court viewed the presence of Patterson's software on
the CompuServe system in Ohio as "entirely incidental to the
alleged dispute between the parties." The Court disagreed. The
cause of action in the instant case concerns allegations of
trademark or trade name infringement and unfair competition.
Patterson's contacts with Ohio are certainly related to the
operative facts of that controversy. He placed his software on
CompuServe's Ohio-based system. He used that system to
advertise his software and sell it. The proceeds of those sales
flowed to him through Ohio. According to CompuServe's
allegations, Patterson has marketed his product exclusively on
their system.
As the district court points out, Patterson could have placed his
software anywhere and had the same result. Nevertheless, it is
uncontroverted that Patterson placed, marketed, and sold his
software only on Ohio-based CompuServe. Thus, any common
law trademark or trade name which Patterson might have in his
product would arguably have been created in Ohio, and any
violation of those alleged trademarks or trade names by
CompuServe would have occurred, at least in part, in Ohio.
Moreover, as noted heretofore with regard to the purposeful
availment test, CompuServe's declaratory judgment action arose in
part because Patterson threatened, via regular and electronic mail,
to seek an injunction against CompuServe's sales of its software
product, or to seek damages at law if CompuServe did not pay to
settle his purported claim. Thus, Patterson's threats - which were
contacts with Ohio - gave rise to the case.
3. The reasonableness requirement
Lastly, it is considered whether exercising personal jurisdiction
over Patterson would "comport with traditional notions of fair
play and substantial justice." Reynolds, 23 F.3d at 1117. If there is
a finding such as in this case of the first two elements of a prima
facie case - purposeful availment and a cause of action arising
from the defendant's contacts with the forum state - then an
inference arises that this third factor is also present.
A court must consider several factors in this context, including "the
burden on the defendant, the interest of the forum state, the
plaintiff's interest in obtaining relief, and the interest of other
states in securing the most efficient resolution of controversies."
Here, here is an entrepreneur who purposefully employed
CompuServe to market his computer software product. It may be
burdensome for Patterson to defend a suit in Ohio, but he knew
when he entered into the SRA with CompuServe that he was
making a connection with Ohio, and presumably he hoped that
connection would work to his benefit. Further, Ohio has a strong
interest in resolving a dispute involving an Ohio company, which
will involve the Ohio law on common law trademarks and trade
names. CompuServe alleges that more than $10 million could be at
stake in this case, and it also contends that this case will have a
profound impact on its relationships with other "shareware"
providers like Patterson, who also directed their activities toward
Ohio-based CompuServe.
Again, considering the pleadings and affidavits in a light most
favorable to CompuServe, the Court found that, there is a
substantial enough connection between Patterson and Ohio to
make it reasonable for an Ohio court to assert personal
jurisdiction over him. Someone like Patterson who employs a
computer network service like CompuServe to market a product
can reasonably expect disputes with that service to yield lawsuits
in the service's home state.
However, the Court notes that it need not and do not hold that
Patterson would be subject to suit in any state where his software
was purchased or used; that is not the case before it. There is also
no attempt by another party from a third state to sue Patterson in
Ohio for, say, a "computer virus" caused by his software, and thus
it need not address whether personal jurisdiction could be found
on those facts. Finally, we need not and do not hold that
CompuServe may, as the district court posited, sue any regular
subscriber to its service for nonpayment in Ohio, even if the
subscriber is a native Alaskan who has never left home. Each of
those cases may well arise someday, but they are not before us
now.
Dispositive: Because we believe that Patterson had sufficient
contacts with Ohio to support the exercise of personal jurisdiction
over him, we REVERSE the district court's dismissal and REMAND
this case for further proceedings consistent with this opinion.