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Vol. 9 - Issue 5
July 16, 2020


The Most Entertaining Personal Jurisdiction Decision Of All-Time [And It Involves Baseball!]


As someone with a keen interest in quirky legal cases involving sports, I could hardly believe my good fortune when I came across this gem. 

The Court of Appeals of Wisconsin’s recent decision in Ewing v. State Auto, No. 2018AP2265 (Ct. App. Wis. June 30, 2020) is the most entertaining personal jurisdiction decision of all-time.  [Yes, I recognize the oxymoron in that statement.] 

I know -- most entertaining of all-time – that’s a bold statement.  Especially since I have read about four personal jurisdiction decisions in my lifetime.  The last was in Civil Procedure, Spring Semester 1989.  But I’m sure I read about a few while preparing for the bar exam.  And that was Summer 1991.  So there, I’m not as out of date as you think.

In Ewing, the court addressed whether it had personal jurisdiction over a defendant on account of the manner in which he had been served with a law suit.  Specifically, Jonathan Davis, a player for the Lancaster JetHawks, a minor league baseball team, was sued by Skyler Ewing in a motor vehicle action.  Davis was (allegedly) served with the complaint by a process server tossing a manila envelope to him, while Davis was walking down the right field line, pre-game, to retrieve his batting gloves from the clubhouse.  The toss came from the stands 20 feet above.  While doing so, the process server yelled “You have been served.”  Davis did not pick up the envelope.  A coach did, saw it was addressed to Davis, and gave it to him.     

[Folks, let’s pause here for a second.  Even as a minor league player, Jonathan “J.D.” Davis was an incredibly elite baseball player.  The Lancaster JetHawks are a Class A-Advanced affiliate of the Colorado Rockies.  According to Wikipedia, this is often a second or third promotion for a minor league player.  That’s all true.  What’s also true is that he was not Mike Trout.  How hard could it have been for the process server to meet Davis at his car after a game and simply hand him the manila envelope.  Postscript – In 2019, Davis, a left fielder/3rd baseman, played in 149 games for the N.Y. Mets, batted .307 and had 22 home runs and 55 RBIs.  On August 26, 2019, MLB.com awarded with the MLB Play of the Week for an over-the-shoulder basket catch.  Wow!]  

Back to the most entertaining personal jurisdiction case of all-time.  The trial court dismissed Davis from the suit on the basis that he had not been properly served.  Hence, the court did not have personal jurisdiction over him.  Ewing was outta-there.  [I just complied with my legal obligation to use at least one baseball pun in an article involving baseball and the law.]  The Wisconsin appeals court affirmed. 

The crux of the appeals court’s decision was the rejection of Ewing’s argument that “personal service is accomplished if the process server and the defendant are within speaking distance of each other, and such action is taken as to convince a reasonable person that personal service is being attempted.” 

But the court was not willing to provide an exception to the statutory preference that process should be physically placed in the hands of the party to be served if possible.

While the court noted that exceptions to this preference are permitted, those generally involve situations where the party to be served is being obstinate or taking steps to avoid service.  For several reasons, the court concluded that that was not the case with Davis.

My favorite of Ewing’s rejected arguments: “Ewing argues that Davis ‘kept himself in a physically removed area from the process server, thanks to the railings that separated spectators from the baseball field, in order to avoid service.’ The absurdity of this argument is evident on its face. The choice of the location to attempt service was not Davis’s but that of the process server. Davis was a professional baseball player and was merely present at his place of employment, one which is known to separate the general public from the playing field. Rather than attempt to serve Davis at his home or as he entered or exited the ballpark, the process server chose to attend the baseball game and attempt service from the fan section of the stadium. The railing located between Davis and the process server was a function of the server’s choice to attempt service upon Davis from the crowd, not an obstacle to service affirmatively placed by Davis.”

The most entertaining personal jurisdiction case of all-time.  If you can top it let me know.  I’ll admit you beat me and send you a copy of Insurance Key Issues

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