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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Matthew Garrett writes:

> A use fee imposes a cost where no cost would otherwise exist. For a big
> evil corporation, the difference in cost between suing me in the UK and
> suing me in the US is sufficiently small that they're unlikely to worry
> greatly about the amount. Even without a choice of venue clause, they
> can launch a lawsuit against me and make my life miserable. They pay
> slightly more, I pay slightly less.

The relative costs to a well-bankrolled plaintiff are not relevant to
the DFSG.  What is relevant is the relative cost or discrimination to
the user, who will generally be the defendant in these cases.

>> At least in the US, it is fairly cheap (<$10k, predominantly in lawyer
>> fees) to have a lawsuit with improper venue dismissed, and those costs
>> can often be awarded to the defendant.  Even if costs are not awarded,
>> the US's Federal Rules of Civil Procedure (to wit, FRCP 41(d)) can
>> have the judge order the plaintiff to pay for previously dismissed
>> actions before further hearing any sufficiently similar action.
> So, in fact, it might be *cheaper* for me to have the case handled in
> the US than in some other jurisdictions?

It may be cheaper to have a US-venued case dismissed *if venue is
obviously improper*.  Where the form is correct (or correctable
through further filings) and there is a reasonable dispute over the
facts, US courts are infamously expensive and prone to cost inflation.

> (Out of interest, are there any jurisdictions where the defendant is
> required to be present in a civil case, or is legal representation
> acceptable everywhere?)

US courts generally require the parties to be physically present at a
few points: trial is the most universal, but (from my own experience)
there may be a pre-trial conference where a judge orders all the
parties to attend in person.  It will also be cheaper for a party to
fly to the court's venue to be deposed than to fly their lawyer to
where they live, and no US-filed case goes to trial without
depositions of all the parties.

Michael Poole

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