Transcript: Jurisdiction Questions Arise for Holloway Lawsuit

This is a partial transcript from "On the Record," February 20, 2006, that has been edited for clarity.

GRETA VAN SUSTEREN, HOST: Joran van der Sloot is from Aruba and he goes to school in Holland. Natalee Holloway is from Alabama and she disappeared in Aruba. So why did Natalee's family sue Joran and his father in New York? Joining me live in Atlanta is Richard Freer, the Robert Howell Hall professor of law at Emory University, and of course, the professor who e-mailed me Friday night during our show about this very complicated question.

So let me jump to the bottom of the story first. I mean, Professor, in your opinion, is this lawsuit going to stay in court or out of court?

RICHARD FREER, EMORY UNIVERSITY LAW PROFESSOR: I think it is probably ultimately going to be dismissed in New York, but not on jurisdictional grounds, and I think that's important.

VAN SUSTEREN: Why do you say that? Could you explain?

FREER: OK. First of all, we have to worry about jurisdiction. Jurisdiction's is a great chameleon word. It means different things at different times. But it describes and determines the power of a court to decide a case. I do think the New York court has jurisdiction. There are really two kinds of jurisdiction that a court must have. If does it not have either of those, then any judgment, any order that it enters is void. It has to have, first of all, personal jurisdiction, and personal jurisdiction means power over the defendant.

VAN SUSTEREN: And do they have that here, power over the defendant?

FREER: Yes, they do. Historically, the way you got power over the defendant was to have an appropriate person serve process, the legal papers, on the defendant while the defendant was in the forum, in the state of New York. That happened here. We don't care about why the person was there, just so voluntarily he was there. That has always been good, way back to Roman times, and it never mattered why the person was there.

VAN SUSTEREN: All right. Now, so let's go to the next step, the subject matter of jurisdiction. Do they have that?

FREER: Yes, they do have subject matter jurisdiction. Subject matter jurisdiction determines the power over this particular case. Can this court hear this particular case? And state courts — and this is in a New York state court — have general subject matter jurisdiction. They can hear any case, no matter where it arose, where the parties are from. It's completely irrelevant to that. They can hear any cognizable claim. New York courts have subject matter jurisdiction over this case. They have personal jurisdiction over the defendants.

VAN SUSTEREN: All right, so the third prong is: whether it's a convenient forum. Is this a convenient forum, or is that where it gets thrown out or stays in?

FREER: That's going to be the determining issue. Jurisdiction is OK. Personal and subject matter jurisdiction are OK. But there will be a motion to dismiss on the basis of an inconvenient forum — lawyers like to say forum non-convenience — and that basically appeals to the judge to look at whether New York has any interest in litigating this case. Why should New York taxpayers pay for this? Why should a New York jury be used here? Why should they be burdened, when in reality, there's not a New Yorker involved, the events all took place somewhere else? And they will look at the fact that Aruba law applies, and so forth, and determine whether New York is not an appropriate forum, even though it is a proper jurisdiction.

The reason I think it's important that jurisdiction is OK here is that when we get to this forum non-convenience argument, it is a matter of the court's discretion. Jurisdiction is not. If there's no jurisdiction, the court has to dismiss. But with forum non-convenience, it's in the court's discretion, and the plaintiffs here, the Holloways, can appeal to the court and argue that, We have to have this case here in New York because we're not going to get justice in Aruba. This is the only place we can get justice. So I think it opens that argument. I think it's an uphill battle, however.

VAN SUSTEREN: All right, so it's going to be fascinating. I'm sure that will be great discussion in law school classes. Professor, thank you very much. And thank you for e-mailing me Friday night and saving me with the gentlemen who were on. And thank you for joining us tonight.

FREER: Thank you, Greta.

Content and Programming Copyright 2006 FOX News Network, LLC. ALL RIGHTS RESERVED. Transcription Copyright 2006 Voxant, Inc. (www.voxant.com), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon FOX News Network, LLC'S and Voxant, Inc.'s copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.