"FILER" BEWARE

Photo by 401(k) 2012

In a recent case the Washington Court of Appeals discussed a very important rule regarding suing out-of-state defendants.  This case is interesting for many reasons, not the least of which that it discusses a rule that can cost a plaintiff a lot of money.  Some background: There is a law in Washington that says that out-of-state defendants "submit" to jurisdiction in Washington State if they do certain things.  This kind of jurisdiction is called "personal jurisdiction." Personal jurisdiction is necessary for a Washington court to have authority over the defendant, for example, to make the defendant pay the plaintiff money.  An out-of-state defendant submits to personal jurisdiction in Washington if the lawsuit against the defendant arises from the defendant's transaction of business within Washington, or from a tort the defendant committed in Washington.  If an out-of-state defendant drives into Washington and causes an auto accident that defendant has submitted to personal jurisdiction in Washington, and the injured person can file a lawsuit against the defendant in Washington.  Within this personal jurisdiction law is the following provision:

"(5) In the event the defendant is personal served outside the state on causes of action enumerated in this section and prevails in the action, there may be taxed and allowed to the defendant as part of the costs of defending the action a reasonable amount to be fixed by the court as attorneys' fees."

Washington judges have interpreted this provision to allow them to award a prevailing defendant their added costs of litigating in Washington.  Washington's law on personal jurisdiction represents a balancing of values.  Washington didn't want to leave its residents who sustained damages caused by an out-of-state defendant without a place to sue in their home state, but Washington also didn't want its residents filing suit against out-of-state defendants who hadn't done anything that connected them to Washington.  This is because of the expense of defending an out-of-state lawsuit, even a meritless lawsuit.  The painful punchline of the court is stated simply and as follows: "Because Deltek prevails in this action, we award attorney fees and costs to Deltek, limited to the amount necessary to compensate it for any additional costs of defending in Washington." Not only did the plaintiff not prevail against Deltek, it was ordered to pay Deltek money.