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personal v. subject matter jurisdiction

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Does a  federal court have authority to render a judgment if defendants have been improperly served. (Fed. R. Civ. 4) and notified the court that the court lacked personal jurisdiction over them regarding claims laid out in complaint? 

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12 minutes ago, foolish said:

 

Does a  federal court have authority to render a judgment if defendants have been improperly served. (Fed. R. Civ. 4) and notified the court that the court lacked personal jurisdiction over them regarding claims laid out in complaint? 

 

That depends. Assuming that the defendant is correct that the defective service prevents the court from exercising personal jurisdiction over the defendant (and the details of the service would matter there) then the court lacks the power to enter judgment against the defendant unless either the defect is cured or the defendant waives the defect and consents to jurisdiction anyway. The basic rule to keep in mind is that a court must have both subject matter jurisdiction and personal jurisdiction in order for its orders and judgments to be valid. It is possible for parties to consent to personal jurisdiction where the court otherwise lacks it. It is not possible for the parties to consent to subject matter jurisdiction if the court otherwise lacks it. 

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1 hour ago, Tax_Counsel said:

 

That depends. Assuming that the defendant is correct that the defective service prevents the court from exercising personal jurisdiction over the defendant (and the details of the service would matter there) then the court lacks the power to enter judgment against the defendant unless either the defect is cured or the defendant waives the defect and consents to jurisdiction anyway. The basic rule to keep in mind is that a court must have both subject matter jurisdiction and personal jurisdiction in order for its orders and judgments to be valid. It is possible for parties to consent to personal jurisdiction where the court otherwise lacks it. It is not possible for the parties to consent to subject matter jurisdiction if the court otherwise lacks it. 

 

The order was against the plaintiff, no the court didn't didn't allow time to correct the defective service about 9 days after defendant's served their notice and notified it that it lacked personal jurisdiction over them e.g., it claim that the superseding complaint was not served on one of the defendants.) 

  Despite the need to address the possible lack of personal jurisdiction the court went a head and issued an sua sponte order dismissing FOIA  complaint for failure to state a claim. Isn't the burden on agency to sustain its action by affidavit or declaration and that the district court review de novo agency action.   

 

Is it valid.   Or better yet can any findings done sua sponte be used to support a claim that defendants didn't argue much-less prove? In a subsequent related case that clearly they have used to evade explaining the original grounds. . .  

 

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3 hours ago, foolish said:

 

The order was against the plaintiff, no the court didn't didn't allow time to correct the defective service about 9 days after defendant's served their notice and notified it that it lacked personal jurisdiction over them e.g., it claim that the superseding complaint was not served on one of the defendants.) 

  Despite the need to address the possible lack of personal jurisdiction the court went a head and issued an sua sponte order dismissing FOIA  complaint for failure to state a claim.

 

You won't get the dismissal of the complaint vacated based on lack of personal jurisdiction over the defendant. The court still had subject matter jurisdiction and it had personal jurisdiction over you. Thus, the dismissal as to you is valid. What the court could not have done is issued an order or judgment enforceable against the defendant. When the court finds that the complaint is insufficient, it may dismiss that sua sponte and since the case is going to be dismissed there is no need to consider the personal jurisdiction issue. There is no rule that says the court must first consider the personal jurisdiction issue before dismissing the case for failure to state a claim under Rule 12(b)(6). 

 

3 hours ago, foolish said:

Isn't the burden on agency to sustain its action by affidavit or declaration and that the district court review de novo agency action.   

 

I’m not quite seeing the connection between this and the personal jurisdiction question you asked. But assuming that you had filed a good FOIA complaint and that you had properly served the government then what the government would have to do is file an answer to your complaint. Though the government gets 60 days to answer most lawsuits, in a FOIA action the government has just 30 days to answer. The answer itself is not required to have an affidavit attached in every instance. If you filed a motion for a Vaughen Index that the court grants then the agency would need to provide that index with the affividavit of the agency official who prepared the index. It is indeed the burden of the agency to justify its decision to withhold releasing the requested records to you. What is necessary to do that will depend on the records sought and the reason(s) the agency is relying upon for not releasing them to you. 

 

3 hours ago, foolish said:

Is it valid.

 

Is what valid?

 

3 hours ago, foolish said:

Or better yet can any findings done sua sponte be used to support a claim that defendants didn't argue much-less prove? In a subsequent related case that clearly they have used to evade explaining the original grounds. . .  

 

It’s not clear what you have in mind here. If the court dismissed the case for your failure to state a claim prior to you properly serving the agency then the agency never had to answer, let alone prove anything. And you could not use that in a later case to somehow bolster your later case. You can’t paint the agency as being evasive when the agency had no requirement to do anything in the first place.

 

The agency is allowed to contest your request to get the records and use the rules to its advantage to do so. As long as it is playing within the rules there is no foul, to use a sports analogy. I know that you don’t like that the agency has been resistent to giving you what you want and do not like that the agency is using your mistakes against you, but that's to be expected in a dispute — you have to anticipate your opponent will use whatever rules and legal tactics it can to win. You may not think it fair play, but if the rules allow for it a court isn’t going to sanction the agency over it. 

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3 hours ago, Tax_Counsel said:

The agency is allowed to contest your request to get the records and use the rules to its advantage to do so. As long as it is playing within the rules there is no foul, to use a sports analogy. I know that you don’t like that the agency has been resistent to giving you what you want and do not like that the agency is using your mistakes against you, but that's to be expected in a dispute — you have to anticipate your opponent will use whatever rules and legal tactics it can to win. You may not think it fair play, but if the rules allow for it a court isn’t going to sanction the agency over it. 

 

No understand that that is their job to take advantage of the circumstances and the rules to a get a win, this I learned early from my being severely handicapped in this litigation.  Is can they use this (no show) win. To support and otherwise unsupportable fact. For example their claiming that because the records ''originated'' somewhere lese their not agency records.  The problem is is that they must stand on the withholding letter. which didn't claim that and as far I researched the law once it chose to withhold and retain the documents they become agency records within the meaning of FOIA being improperly withheld until they prove its not. Am I correct.    

 

 

 

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Doesn't matter if you are correct or not.  Your claim was dismissed.  You could have filed a new claim based on matters that were actionable.  You would,of course, have to file your new claim within the limitations period.  Did you do so?

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17 minutes ago, RetiredinVA said:

Doesn't matter if you are correct or not.  Your claim was dismissed.  You could have filed a new claim based on matters that were actionable.  You would,of course, have to file your new claim within the limitations period.  Did you do so?

 

 

Yes, in fact I did a new claims within limitation period of 28 USC 2401(a), requesting the same withheld documents that was not appealed citing that to regulations of Title 14 General Records Schedule Rule 11(3)(a) preservation of records. .  The issue to me is the sua sponte finding. .    

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4 hours ago, RetiredinVA said:

Doesn't matter if you are correct or not.  Your claim was dismissed.  You could have filed a new claim based on matters that were actionable.  You would,of course, have to file your new claim within the limitations period.  Did you do so?

 

Just so it's clear for the OP though, under the federal rules a dismissal for failure to state a claim generally has preclusive effect unless the court specifically says otherwise, preventing the plaintiff from refiling the same claim against the defendant.  See FRCP Rule 41(b). I discussed this a couple weeks ago in the OP's earlier thread on that issue. This rule differs from what some states do — some states treat a dismissal for failure to state a claim as a dismissal without prejudice even if the court does not expressly state that. But that is not the case in federal courts. Thus, filing a new federal FOIA action in court seeking the same documents that were the subject of the dismissed FOIA complaint may well get rejected based on res judicata. The plaintiff in that situation would want to perfect the complaint in the first action by seeking leave to amend (if amending might fix the problem) to avoid the dismissal. District courts are usually fairly liberal in granting a pro se litigant at least one shot at correcting a defective complaint before dismissing it under Rule 12(b)(6). 

 

Looking back at that prior thread, I think the OP believes that res judicata may be avoided here since, as I understand it, the new claim is against a different agency of the same Department but seeking the same documents. That might not work, since res judicata can apply where the second defendant’s interests were fully at issue in the action against the first defendant, either because they were in privity or because they were similarly situated such that they would share the same interests. In the prior requests, the agency that received the FOIA request handed it off to the second agency and then the second agency evidently would communicate its response to the first, who would then respond to the OP. In that case, the first agency in the litigation is defending the same interests as the second agency, which may make res judicata applicable here, too. 

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10 minutes ago, Tax_Counsel said:

 

 

Looking back at that prior thread, I think the OP believes that res judicata may be avoided here since, as I understand it, the new claim is against a different agency of the same Department but seeking the same documents. That might not work, since res judicata can apply where the second defendant’s interests were fully at issue in the action against the first defendant, either because they were in privity or because they were similarly situated such that they would share the same interests. In the prior requests, the agency that received the FOIA request handed it off to the second agency and then the second agency evidently would communicate its response to the first, who would then respond to the OP. In that case, the first agency in the litigation is defending the same interests as the second agency, which may make res judicata applicable here, too. 

 

First of all, I appreciate everybody's patience here, If we back one request further were it originally was requested, the initial response never claimed it didn't locate the "extremely" specific records, nor that it fell outside of FOIA's reach.  I didn't appealed that withholding for circumstances beyond my control (see GRS Title 14 rule 11(3)(a) I filed the second request as you noted that referred (handed off) to a secondary agency.  And that's when the sua sponte ruling occurred.  The primary that originally withheld handed off the second request requesting the same withheld documents.  The problem is that the primary agency is well known for not transferring this type of data (prejudicial to them) for processing. See Declaration of Chief Records for USCIS paragraph 3

at 



 https://www.scribd.com/document/33979398/Declaration-of-Dominick-Gentile-on-SB-1070

 In this case finally the primary agency responded to my request, now there trying piggy-back a sua sponte. . . . that they should sustained their original action.

 

 

 

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3 hours ago, foolish said:

 

 

Yes, in fact I did a new claims within limitation period of 28 USC 2401(a), requesting the same withheld documents that was not appealed citing that to regulations of Title 14 General Records Schedule Rule 11(3)(a) preservation of records. .  The issue to me is the sua sponte finding. .    

 

The problem with that is that Congress did not provide you any remedy for an agency who does not retain records in accordance with the GS retention rules. Moreover, you need to understand that the records referred to in the old Title 14 of the GRS (now found in GRS 4.2 item 020) are the records created for the agency FOIA file in response to your request, NOT the actual documents you requested from the agency. The retention of the actual documents you requested remains subject to whatever rules govern those. That FOIA file may or may not have contained copies of the records you requested, but that FOIA file is a distinctly different record within the agency.  If you did not request a copy of that FOIA file the agency had no reason to know that record was there, to search it, or to respond to you to either provide you a copy of it or assert an exemption from disclosure.

 

I get the impression you think that civilian agencies are far more organized about how they handle their records than they actually are. My own experience in having worked for one of the largest civilian agencies is that a lot of records are not centrally organized and that finding records responsive to a FOIA request can involve sending out requests to multiple units within the organization to see if they have any of the requested records. When they do, that unit forwards the records to the FOIA official along with that units take on whether to release the record or withhold it. Depending on the responses provided and the basis for any withholding of documents, the responsive records, if any, may end up in the FOIA file. But if you make a similar FOIA request some years later, the same FOIA official may not be there and may not know there was a prior FOIA file on it. In that case, the FOIA wont know to retrieve that file. Instead, the FOIA official just looks at it as a new request and sends out inquiries to the units that might have responsive records. The people there may also be new since the last request and not know of the prior one. They just respond with what they have and their recommendation on what response to provide. The problem here is that those records in those units may have been disposed of because they were no longer subject to retention. Those units holding the original records are not subject to the GS rule you referred to because they are not holding the FOIA file. So in that case, you'd get back a response that there are no records that match your request. If you didn't ask for that prior FOIA file, that is outside the scope of your request and might fail to get you any copies of the records you want that are in that FOIA file. 

 

Because of what I just described, you could very well get differing responses each time you ask for the same records because the people responding are different and the nature of the records in the agency at the time are different. So while you seem to think the agency is coordinating a long time concerted effort to block you, I think it is more likely that simply the agency is not as organized as you think and what you get in response is based simply on the state of affairs at the agency at the time.

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3 minutes ago, foolish said:

 

 In this case finally the primary agency responded to my request, now there trying piggy-back a sua sponte. . . . that they should sustained their original action.

 

 

 

 

I'm not quite following this. I gather you are saying that USCIS is the primary agency but that in the past you had made the FOIA request to ICE, which then handed it off to USCIS for records it may have responsive to your request. You got a response from ICE denying you records and you filed a FOIA complaint in district court against ICE. The court then dismissed that action for failure to state a claim, a dismissal under 12(b)(6) or the equivalent rule for those proceeding in forma papauris. Now you have made a new request directly with USCIS and it responded. Have you filed a FOIA action in court on that? Is that the case that you did the interlocutory appeal on that was discussed a few months ago? Or is this now something totally new that you have just filed in court? If so, are you saying that USCIS has filed a motion to dismiss based on res judicata?

 

USCIS may well be able to rely on res judicata here for the reason I mentioned earlier. You are filing essentially the same claim. The defendants are different — USCIS rather than ICE — but the prior case involved USCIS in that ICE referred the matter to USCIS and ICE tthen acted based on the response it got. 

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12 minutes ago, Tax_Counsel said:

 

The problem with that is that Congress did not provide you any remedy for an agency who does not retain records in accordance with the GS retention rules. Moreover, you need to understand that the records referred to in the old Title 14 of the GRS (now found in GRS 4.2 item 020) are the records created for the agency FOIA file in response to your request, NOT the actual documents you requested from the agency. The retention of the actual documents you requested remains subject to whatever rules govern those. That FOIA file may or may not have contained copies of the records you requested, but that FOIA file is a distinctly different record within the agency.  If you did not request a copy of that FOIA file the agency had no reason to know that record was there, to search it, or to respond to you to either provide you a copy of it or assert an exemption from disclosure.

 

Actually, agencies own "preservation" regulation adopts the retention of GRS in that year and subsequent years,  

DHS/USCIS/ICE/CBP-001 - Alien File, Index, and National File Tracking System of Records June 13, 2011, 76 FR 34233. The Alien File, Index, and National File Tracking System of Records (“NFTS”) states that records originating with INS governs the handling of those records. . And I rely on the Privacy Act to for monetary relief in they cant justify its non-production or disposal. 

 

 

2 minutes ago, Tax_Counsel said:

 

I'm not quite following this. I gather you are saying that USCIS is the primary agency but that in the past you had made the FOIA request to ICE, which then handed it off to USCIS for records it may have responsive to your request. You got a response from ICE denying you records and you filed a FOIA complaint in district court against ICE. 

 

ICE, USCIS and CBP, ICE on its enforcement of it laws, USCIS took the administrative responsibility and CBP took the responsibility of protecting the boarders.  

That was the reason why my request was automatically referred to USCIS for processing, if I believe or don't believe its been concerted effort to avoid my specific request is not relevant because, this new procedure is exactly has occurred if intentional or not it has occurred.

 

In sum its ICE that is the primary agency to all this.

 

 

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On 4/21/2018 at 10:32 PM, foolish said:

Does a  federal court have authority to render a judgment if defendants have been improperly served.

 

Yes.  Keep in mind, however, that if a court made a determination that a defendant had been improperly served, it would not enter a judgment against that defendant.  Likewise, if a court entered a judgment against a defendant, that necessarily means that there was no determination that service on that defendant was improper?

 

 

On 4/21/2018 at 10:32 PM, foolish said:

(Fed. R. Civ. 4) and notified the court that the court lacked personal jurisdiction over them regarding claims laid out in complaint?

 

This sentence doesn't make much grammatical sense, but someone "notifying" a court that the court lacks personal jurisdiction isn't particularly meaningful.  If a defendant contends that it wasn't properly served, the defendant's recourse is to file a motion to dismiss for lack of personal jurisdiction or motion to quash.  Alternatively, if the defendant doesn't find out what happened until judgment is entered, the defendant can seek to have the judgment set aside.

 

 

On 4/22/2018 at 0:05 AM, foolish said:

The order was against the plaintiff

 

What order?  You seem to have switched from a very generalized inquiry to an inquiry relating to a specific case about which you've provided no factual information.

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On ‎4‎/‎23‎/‎2018 at 9:42 AM, pg1067 said:

This sentence doesn't make much grammatical sense, but someone "notifying" a court that the court lacks personal jurisdiction isn't particularly meaningful.  If a defendant contends that it wasn't properly served, the defendant's recourse is to file a motion to dismiss for lack of personal jurisdiction or motion to quash.  Alternatively, if the defendant doesn't find out what happened until judgment is entered, the defendant can seek to have the judgment set aside.

 

 

The pleading is drawn up like "notice of service defect" the contents inside the notice is more of motion to dismiss although it doesn't contain formal language regarding that particular case but it did contain memoranda of law supporting a dismissal based on lack of personal jurisdiction based on defective service. . .

 

 

On ‎4‎/‎23‎/‎2018 at 9:42 AM, pg1067 said:

 

What order?  You seem to have switched from a very generalized inquiry to an inquiry relating to a specific case about which you've provided no factual information.

 

I understand that I provide generalized information, the order was a sua sponte order that issued a few days later the plaintiff.  After defendants a complained that the court lacked jurisdiction to move forward.  However, the order was in their favor. They were never made to justify their actions.

 

 

 

 

 

 

 

 

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According to your original post, the defendants advised the court that it lacked personal jurisdiction over them.  Based on that the court issued an order dismissing the case;  If that is correct, the defendants did respond and the court found their response persuasive.  Obviously whatever they alleged was sufficient to convince the court.  We have no indication who you alleged were the defendnats in the case so have no way of considering whether the defendants' response was proper and sufficient.  The court obviously felt it was.

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30 minutes ago, RetiredinVA said:

According to your original post, the defendants advised the court that it lacked personal jurisdiction over them.  Based on that the court issued an order dismissing the case;  If that is correct, the defendants did respond and the court found their response persuasive.  Obviously whatever they alleged was sufficient to convince the court.  We have no indication who you alleged were the defendnats in the case so have no way of considering whether the defendants' response was proper and sufficient.  The court obviously felt it was.

 

That’s not quite it. The government apparently filed a motion to dismiss for lack of jurisdiction because it alleged improper service by the OP. But prior to the court ruling on that, the court dismissed the case sua sponte failure to state a claim. Even though the government evidently did not file a Rule 12(b)(6) motion the court dismissed for failure to state a claim because the OP (IFP) was proceeding in forma pauperis (IFP) and 28 U.S.C. § 1915(e)(2)(B)(ii) directs the court to dismiss an IFP filed complaint at any time it finds it fails to state a claim. 

 

And of course, with the dismissal for failure to state a claim the government never had to defend the FOIA/Privacy Act appeal and thus never had to justify withholding the documents that the OP has been trying to get for years. That's the whole idea of a dismissal for failure to state a claim — end the litigation before the parties have to expend much time and effort. And now the OP faces the problem that a dismissal for failure to state a claim presents a res judicata problem for his next efforts to get this information, among other hurdles. I’m not convinced that switching defendants from ICE to USCIS will solve that problem. 

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2 hours ago, Tax_Counsel said:

 

That’s not quite it. The government apparently filed a motion to dismiss for lack of jurisdiction because it alleged improper service by the OP. But prior to the court ruling on that, the court dismissed the case sua sponte failure to state a claim. Even though the government evidently did not file a Rule 12(b)(6) motion the court dismissed for failure to state a claim because the OP (IFP) was proceeding in forma pauperis (IFP) and 28 U.S.C. § 1915(e)(2)(B)(ii) directs the court to dismiss an IFP filed complaint at any time it finds it fails to state a claim. 

 

 Its the other way around the government filed the motion to dismiss for lack of jurisdiction then days later the court dismissed sua sponte failure to state a claims.  . .

 

3 hours ago, Tax_Counsel said:

 And of course, with the dismissal for failure to state a claim the government never had to defend the FOIA/Privacy Act appeal and thus never had to justify withholding the documents that the OP has been trying to get for years. That's the whole idea of a dismissal for failure to state a claim — end the litigation before the parties have to expend much time and effort. And now the OP faces the problem that a dismissal for failure to state a claim presents a res judicata problem for his next efforts to get this information, among other hurdles. I’m not convinced that switching defendants from ICE to USCIS will solve that problem. 

 

Well in this case the IFP screening process flipped the script in turning the table on who was to sustain their actions in FOIA, its always on agency. .       res judicata was brought the court found it didn't apply. . .that's not the issue that concerns me. . when the sua sponte ruling occurred the request was originally filed with ICE when it referred request to USCIS for processing (even though withheld documents predated USCIS existence), therefore ICE's participation was limited to its referral to USCIS and ended there, when the sua sponte order issued.  ICE's referral policy has kept them from justifying its original withholding.  . . .

 

 

 

 

 

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1 hour ago, foolish said:

 Its the other way around the government filed the motion to dismiss for lack of jurisdiction then days later the court dismissed sua sponte failure to state a claims.  . .

 

I think you misread what I wrote. I said that the government filed the motion to dismiss for lack of jurisdiction and then before the court ruled on that motion it dismissed the case for failure to state a claim, exactly what you have said here. 

 

1 hour ago, foolish said:

Well in this case the IFP screening process flipped the script in turning the table on who was to sustain their actions in FOIA, its always on agency. .  

 

No, thats the way it's supposed to go. The agency has to justify its reasons for withholding the documents to the court but only once the issue is properly presented to the court. If you do not properly serve the defendants or if your complaint is not well drafted then the case ought to be dismissed. Why should a defendant have to do the work to defend the case when you haven't done your end of getting the complaint right and/or serving the agency properly? I realize that you really want to get to the point where the agency has to explain its reasons for withholding the records, but you have to get your part right to get there. And with the long history of this you have accumulated a set of extra hurdles to try to get there.

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Thank's for everyone's input, appreciate the assistance its an eye opener, most of this back and forth has been both therapeutic and helpful, just laying out my generalized questions alone has managed to reveal the real key to the question.  Yes, believe I familiar with hurdles, I've managed to clear a gauntlet of hurdles and obstacles over the years for documents anyone in my position would normally be entitled to by law under these circumstances. . . This has been helpful. .     

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