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AN OVERVIEW OF THE LAW OF PERSONAL (ADJUDICATORY) JURISDICTION: THE UNITED STATES PERSPECTIVE



Assertions of jurisdiction over the person of the defendant by courts of the United States and of the states must comport with due process in order to be enforceable either by the court rendering the judgment or by other state or federal courts.(1) Since 1945, the constitutional(2) jurisdictional inquiry has focused on the contacts between the defendant, the forum, and the litigation.(3) The defendant must have such "minimum contacts" with the forum that the assertion of jurisdiction by it does not offend "traditional notions of fair play and substantial justice."(4) Whether the co

contacts are sufficient to satisfy the constitutional standard depends upon the "quality and nature" of the defendant's acts in the forum "in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure."(5) This formula focuses on two inquiries: the degree to which the defendant acted in the state and the relationship between those acts and the claim brought against her. It is always necessary that there be an act "by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."(6) Such an act may be a single occurrence, such as driving a car through the territory of the state; it may be the continuous presence of the defendant in the state as a citizen or domiciliary; it may be (and frequently is) something in between. But any time a defendant is by choice physically present in a state, she has benefitted from its legal protections; Hanson is satisfied, a prerequisite of the assertion of jurisdiction though not sufficient to sustain it. It remains necessary to consider whether the claim brought against the defendant "arose out of" the defendant's activities in the state, was completely unrelated to those activities, or was in some way related to them even though the in-state activity is not an element of the plaintiff's prima facie case.

The consideration of these two variables led the Shoe Court to describe four paradigm fact patterns: 1) the activity of the defendant in the state is "continuous and systematic" and gives rise to the claim (for example, as in Shoe itself, a corporation has employees acting in the state and is sued for failure to contribute to an unemployment compensation fund), in which case jurisdiction is properly asserted; 2) the activity of the defendant in the state is "continuous and systematic" but is unrelated to the claim (for example, a citizen of Illinois is involved in a car accident with a citizen of Ohio in Alaska and suit is brought against him in Illinois), in which case whether jurisdiction is proper depends upon the nature and substantiality of the contacts with the state(7); 3) the activity of the defendant in the state is single and isolated, but the claim arises directly out of that activity (for example, the defendant drives once through Illinois but, while driving there, is involved in a car accident and is sued for negligent driving in Illinois), in which case jurisdiction depends upon the "nature and quality" of the acts and the "circumstances of their commission;"(8) and 4) the activity of the defendant in the state is single and isolated and unrelated to the claim (for example, the defendant drove through Illinois once and is being sued there for breach of a contract entered into and to be performed elsewhere), in which case an assertion of jurisdiction would violate due process.

Although this jurisdictional approach has remained constant, the Court has quietly changed the precise word formula it uses to describe the requirements of due process. "Minimum contacts" is now equated with the Hanson requirement that the defendant act purposefully to connect herself to the forum state; Shoe's concern with the "fair and orderly administration of the laws" is now said to require that the assertion of jurisdiction be "reasonable."(9) But the two variables remain the same and are at the heart of inquiry.

Shoe seemed clear on two points: if a defendant acted continuously and systematically in a state and the claim against her arose out of those activities, jurisdiction was proper; if a defendant was only present casually in the state and the claim was unrelated to his presence, jurisdiction was not proper. Prior to Shoe, of course, jurisdiction was in no way dependent upon the relationship between the defendant's activities and the claim.(10) The Court's first comment on the relationship between the two lines of authority seemed a straight-forward reaffirmation of Shoe:

"... all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny."(11) The statement was made in the context of a case involving the assertion of jurisdiction by Delaware over defendants who owned stock in a Delaware corporation which, pursuant to Delaware law, was "found" in Delaware even if the physical certificates were elsewhere. Under pre-Shoe law, jurisdiction would have been proper over the property itself, which had been seized at the commencement of the law suit. However, utilizing a minimum contacts analysis, the Court held that jurisdiction was not available because the claim arose out of state. The apparent implication of the holding was that jurisdiction based on the service of process on a defendant while she was physically present in the state would now also fail; in Shoe terms, there was a single contact unrelated to the claim. Nothing, however, is as easy as it looks.

In 1990, a unanimous Court held that jurisdiction was proper when a nonresident of California was personally served with process there, although why that was so fractured the Court.(12) Writing for himself and three others, Justice Scalia held that Shoe was meant to expand, not contract, the availability of jurisdiction and was directed to the propriety of jurisdictional assertions over nonpresent defendants. In his view, the acceptance of personal service in the forum as a basis of jurisdiction at the time of the adoption of the Fourteenth Amendment and its continuing acceptance today made it obvious that assertion of such jurisdiction comported with the "traditional notions of fair play and substantial justice" at the heart of the Shoe opinion. Furthermore, writing for himself and two others, Justice Scalia distinguished Shaffer by dividing the world of potential defendants into those physically served with process in the forum, for whom a minimum contacts analysis is unnecessary, and those not so served, for whom minimum contacts are required. He nonetheless did acknowledge that the Court's approach in Shaffer differed from his; he engaged in no independent evaluation of the fairness of the assertion of jurisdiction, stating that "its validation is its pedigree."(13) Of course, his approach might well have resulted in a different result in Shaffer, at least to the extent that that opinion spoke to the validity of jurisdiction based on the seizure of all kinds of property. While no then-accepted national tradition supported Delaware's status as the situs of intangible corporate ownership rights (all other states referred to the location of the stock certificate or its owner), prior to the Court's opinion the same tradition that justified jurisdiction in Burnham would clearly have justified jurisdiction based on the seizure of real property. Indeed, Justices Powell and Stevens concurred in Shaffer for precisely that reason; they were unwilling to hold that the attachment of real estate could not confer jurisdiction.

Four justices in Burnham disagreed with Justice Scalia that a minimum contacts analysis was unnecessary but found that such contacts did exist. Justice Brennan, with whom Justices Marshall, Blackmun and O'Connor joined, argued that by being present in California the defendant did avail himself of the benefits and protections of the state's law, that the burden of returning to the state to defend the suit was slight, and that the defendant could clearly anticipate the assertion of jurisdiction. However, as Justice Scalia pointed out, the first two prongs of the argument would hold true whether or not the defendant had been personally served while in California, and the third is simply another way of stating Scalia's own reliance on tradition: the defendant is aware that he may be subject to California's jurisdiction IF he is served there because that has always been the law.

Justice Stevens said "... this is, indeed, a very easy case."(14)

Whether logically convincing or not, the Court currently accepts jurisdiction based on physical service of process on a defendant in the forum state but does not assume that jurisdiction based on the seizure of the defendant's property in the state satisfies the requirements of due process. In any situation involving a defendant NOT served in the state, Shoe must be satisfied.(15)

Both Shoe and Hanson assumed that a defendant had at some time been physically present in the forum state. The difficulty both cases were attempting to overcome was the traditionally perceived lack of authority to insist a defendant not "caught" within the state return to it to defend a lawsuit arising out of her past presence. A classic car accident case provides the perfect example; indeed, Shoe is frequently praised as an honest statement of jurisdictional concerns previously hidden by rhetoric forced into the Pennoyer framework.(16) However, it may be that a defendant who has never set foot into the forum has nonetheless caused compensable injury to a plaintiff there; in three different situations, the Court has found that jurisdiction is constitutionally permissible, even thought the defendant did not literally "purposefully avail itself of the privilege of conducting activities in the state." Acts outside the state, the Court reasoned, did invoke the benefits and protections of state law, thus satisfying the Hanson requirement and permitting the assertion of jurisdiction if such an assertion would otherwise be reasonable.

The most common scenario in which a defendant never physically present in the forum may nonetheless constitutionally be subject to jurisdiction there involves a doctrine known as the "stream of commerce." Initially formulated by the Illinois Supreme Court in Gray v. American Radiator & Standard Sanitary Corp.,(17) the doctrine permits jurisdiction to be asserted over a component parts manufacturer when a good containing its part is purchased in the forum by a consumer who is later injured there by an alleged malfunction of the part. The Court reasoned that without the sale to the Illinois consumer of the completed product, the parts manufacturer would have had no market for its part; therefore, the laws of Illinois that protect and facilitate commerce within the state benefit and protect the defendant, whose true, although indirect, source of economic benefit is Illinois. The United States Supreme Court appeared to accept the Gray logic in World-wide Volkswagen Corp. v. Woodson,(18) although it held that the doctrine would not sustain jurisdiction on the fact pattern there before it. In World-wide, the objecting defendants were a New York car retail dealer and its regional distributor. The plaintiffs had purchased a car in New York and, when injured in an accident in Oklahoma, attempted to sue the defendants, as well as the car manufacturer and importer, in Oklahoma. The Court held that whatever "stream of commerce" the car had entered, it left that stream at the point of its purchase, i.e. in New York. The later unilateral decision of the purchasers to remove the car from New York could not provide a basis of jurisdiction over the retailer and distributor, who had had no voice in the decision and procured no benefit from it.(19)

More recently, at least some members of the Court have expressed concern at the breadth of jurisdiction made possible by the doctrine. In Asahi Metal Industry Co. v. Superior Court,(20) the Court was unanimous in its opinion that the assertion of jurisdiction by a California court over a Japanese company being sued as a third party by a Taiwanese component parts manufacturer seeking contract indemnification would be unreasonable and, therefore, unconstitutional. The Court split, however, on the question of whether the Japanese defendant's use of the stream of commerce was sufficient to constitute "purposeful availing" and thus provide the requisite "minimum contacts." Writing for herself and three others, Justice O'Connor argued that it was not. The defendant manufactured tube valve assemblies, which it sold to the Taiwanese company that manufactured the tube used in a tire sold to Honda which burst while the plaintiff was riding a Honda motorcycle in California. The plaintiff's suit had settled, leaving only the claim between the two foreign companies. Accepting that the Japanese defendant was aware that its product might well be used in a motorcycle purchased in California, Justice O'Connor found that "mere awareness" was insufficient to satisfy Hanson; it was necessary that the defendant in some fashion purposefully direct its action toward the forum state.(21) Her examples included designing a product for a market, advertising, establishing channels for advice to customers in the forum, or using a distributor as a sales agent in the state.(22) Intuitively, it would seem unlikely that many parts manufacturers would engage in such conduct, however. Four of the remaining justices thought that the "regular and anticipated flow of products from manufacture to distribution to retail sale" in a forum was sufficient to satisfy Hanson,(23) while Justice Stevens thought the inquiry depended upon "the volume, the value, and the hazardous character of the components."(24)

Given recent changes in the composition of the Court, it is hard to predict whether the kind of directed activity thought necessary by Justice O'Connor will be required by a majority. However, her argument leaves open another question: if a manufacturer does direct its activity toward a particular forum, is that conduct alone sufficient to constitute "minimum contacts," even if the manufacturer does not utilize a stream of commerce. Advertising is the obvious example; a seller may advertise in a market in which its products are not sold, intending to reap economic benefit from consumers in that market when they purchase the product at the seller's home. On the one hand, the seller has targeting the advertising forum, connecting itself to that forum in a way that is at least marginally related to any claim caused by the purchase of the advertised product. On the other hand, the liability of the seller for defects in its product is in no way dependent upon the advertising, as would be a claim, for example, for false advertising. In addition, no economic benefit, direct or indirect, accrues to the seller in the forum where the advertising occurred; the benefit accrues when the product is purchased at the seller's home.

A second situation in which a defendant never physically present in the forum may nonetheless be subject to jurisdiction there arises when the defendant intends to and does cause damage in the forum. The classic international law example involves a defendant standing in the United States shooting an individual standing a few feet away in Canada. The Court's acceptance of the constitutionality of jurisdiction in this fact pattern is exemplified in Calder v. Jones.(25) The plaintiff alleged that two individual defendants, a newspaper editor and reporter, as well as the newspaper itself, had libeled her. Jurisdiction over the paper was not challenged; it sold copies of the paper in California, the forum state.(26) The individual defendants, however, had never been in California in any jurisdictionally significant way. Nonetheless, jurisdiction over them was constitutionally asserted. The Court focused on two sets of facts: first, everything relevant to the claim other than the actual writing and editing of the story focused on California. The plaintiff and her career were there; the alleged acts took place there; the sources were there. Second, every aspect of the defendants' activities was intentional (rather than negligent): writing is an intentional act, libel is an intentional tort, and the causation of damage in California was intentional (given that the defendants knew the location of the plaintiff and her business).

It is certainly possible to imagine a situation analogous to but distinct from Calder. To return to the international law example, if a defendant in the U.S. aims at a man in the U.S. but, because of her bad aim, hits a man in Canada, is jurisdiction in Canada proper? What if the woman in the U.S. aims at a squirrel in Canada but hits a man there? In none of these instances, as compared to the stream of commerce fact patterns, is there any economic benefit to be traced to the defendant; what matters is the defendant's intent. But the intent to do what? To shoot a specific individual? In that case, jurisdiction in neither hypothetical would be appropriate. It is helpful, however, to return to basics: jurisdiction is about contacts between the defendant and the forum and, more specifically, between contacts between the defendant and the forum that the defendant has chosen. In other words, if a defendant never wishes to have any connection with Illinois, it ought to be possible for him to structure his life and his business to avoid such contacts and, therefore, to never be subject to jurisdiction in an Illinois court. The defendant in the first hypothetical did not intend in any way to connect herself to Canada. But the defendant in the second hypothetical did. True, she did not intend the contact that occurred. But she did intend a Canadian contact. She is in a position similar to that of a defendant who, while driving through a state, is involved in an accident and sued there for negligence. The contact (driving/shooting) is intentional, although the results arise from negligence, not intent.

Finally, the third situation in which a defendant never physically present in the forum may still be subject to jurisdiction there is that reflected by Burger King Corp. v. Rudzewicz.(27) Other Supreme Court adjudicatory jurisdiction cases had involved claims of tortious injury; Burger King was at least the modern Court's first attempt to resolve jurisdictional issues in the context of a claim for breach of contract. The defendant franchisee, a Michigan businessman, had allegedly breached his contract with Burger King, a Florida corporation. While the defendant had not been present in Florida in any way the Court considered jurisdictionally significant, and although he argued strongly that his contacts had been with the Michigan district office, the Court found that he had intentionally affiliated himself with a Florida entity in a way that satisfied Hanson's requirement. Determinative was a combination of factors: the defendant was seen as a sophisticated businessman who had not only solicited the franchise arrangement but had actively negotiated its terms with Burger King's Miami headquarters; the resulting franchise agreement was of high value, long-term, and closely supervised; the contract called for the use of Florida law to determine claims arising under it; and payments were to be made to the Miami headquarters. The failure to make those payments was the basis of the plaintiff's claim.

The Burger King Court specifically rejected what it termed "any talismanic jurisdictional formula,"(28) noting that its decision did not justify an assertion of jurisdiction over any party to a contract in the other party's home state.

The fact that Burger King involved a claim for breach of contract rather than damages caused by negligence in the end seems insignificant. The requirements of Hanson must be satisfied; they may be satisfied by a non-present defendant; once they are satisfied, the propriety of an assertion of jurisdiction depends upon its reasonableness, i.e. upon the relationship between the defendant's contacts with the state and the claim brought against her.

All three situations considered thus far, like the paradigm car accident that heralded the discussion,(29) involve assertion of what is called "specific" jurisdiction. The contacts the defendant has with the forum are sufficient to permit jurisdiction to be asserted with respect to related claims but are presumptively insufficient to permit jurisdiction to be asserted with respect to claims that have no relationship to those contacts.(30) The relevant Shoe category would be "single act/related claim." "General" jurisdiction, on the other hand, describes jurisdictional assertions which are proper no matter what the claim brought against the defendant is because of the substantiality and nature of the defendant's contacts with the forum. The easiest example is that of a state asserting jurisdiction over one of its own citizens. If a citizen of Illinois is involved, for example, in a car accident in California with a citizen of Indiana, the Indiana plaintiff could institute suit in California, where the accident occurred, but for convenience might well prefer to bring suit closer to her home. Jurisdiction over the Illinois citizen in Indiana would not be proper, since the defendant has no contacts with that forum, but an assertion of jurisdiction by Illinois would be consistent with due process.(31)

Whether general jurisdiction is proper when the defendant has "continuous and systematic" contact with the state but is not a citizen of the state is a matter of debate. The Supreme Court since 1945 has decided two cases which it believed raised the issue. The first, Perkins v. Benguet Consol. Min. Co.,(32) permitted Ohio to exercise jurisdiction over a Philippine mining company that had its (sole) U.S. office in that state in a cryptic opinion that merely concluded that the assertion was "reasonable and just," although the claim did not relate to the activities in Ohio. However, at the time suit was brought the Philippines were occupied by Japan, which was at war with the United States. Therefore, if jurisdiction in Ohio was not proper, there would literally be no forum in which the plaintiff could proceed. More recently, in Helicopteros Nacionales de Colombia, S.A. v. Hall,(33) the Court found that Texas could not constitutionally as assert jurisdiction over a Colombian corporation in a claim arising out of a Peruvian helicopter crash. Although Justice Brennan dissented, the majority of the Court and the parties agreed that the claim was not relevantly related to the contacts between the defendant and Texas.(34) Those contacts included negotiating the contract pursuant to which the defendant provided the transportation service being used at the time of the crash, the purchase of the helicopter involved (as well as eighty percent of the defendant's entire fleet of helicopters) from a Texas corporation, and the training of the defendant's pilots in Texas. However, the majority held that "mere purchases, even if occurring at regular intervals"(35) were insufficient to support the assertion of general jurisdiction. The activity described in the case is quite clearly continuous and systematic, so presumably the difficult lies in its "substantiality and nature." The majority pointed out that the defendant did not have a place of business in the state, nor was it licensed to do business there. The latter point would seem of greater relevance to an argument that the defendant had previously consented to the assertion by Texas of jurisdiction; a license to do business says nothing at all about the business actually done in the state. On the other hand, the lack of any actual place of business in the state means that the defendant cannot be characterized as a "resident" of Texas.

A resident of a state, unlike one who simply has continuous dealings with others in the state, has entered into a permanent relationship with the forum. The "nature" of that relationship is distinct. It may be inferred from Helicopteros that general jurisdiction requires such permanence, as it is difficult to imagine a business relationship absent residence stronger than that which bound the defendant to Texas. However, assuming that residency or at least a permanent presence in the state(36) is necessary before general jurisdiction may be asserted, it is not clear that that is all that is necessary. New York, for instance, assumes that it is;(37) Maryland assumes it is not.(38) Arguably, Shoe supports the need for further inquiry. That case, after all, referred to not only the nature but also the substantiality of the continuous and systematic contact necessary to support jurisdiction when the claim is not related to the activity. In addition, New York's position results in nation-wide general jurisdiction with respect to large national corporations with offices in every state. There seems to be no policy justification for that result; why should a plaintiff injured in a car accident with an Allied Van Lines truck in California be able to sued Allied Van Lines in Idaho? The burden on the defendant is also a heavy one, since witnesses, evidence, applicable law etc. are all likely to be in the state where the claim arose. If the suit is brought in the defendant's state of citizenship, the practical inconveniences are thought to be outweighed by the generic convenience of being sued "at home;"(39) also, given the complexities of the law of personal jurisdiction, it seems appropriate that there be one forum in which a plaintiff can be assured that the defendant is amenable to service of process. But one such state is sufficient.

Finally, the complexities of the law of personal jurisdiction may in some instances be obviated by prior agreement between the parties. Such an agreement may simply express a party's consent to be sued in a specific forum (usually the home of the other party),(40) or it may identify the only forum in which litigation concerning the contract shall be filed.(41) In both instances, there may be difficulties with respect to the validity of the agreement under the applicable law of contract (very often these clauses are attacked as violating the doctrine preventing contracts of adhesion), but if contractually valid they govern the location of the litigation.

The Supreme Court has not, as yet, addressed the application of this well-developed jurisprudence to a case involving a defendant's use of internet technology as an alleged relevant contact between the defendant and the forum. However, an increasing number of lower courts have confronted a variety of such fact patterns; predictably, they attempt to determine the relationship between a web site and the central requirement that a defendant purposefully connect herself to the forum.

For the most part, courts are in agreement that the maintenance of a web site, even when coupled with sales into the forum, is insufficient to sustain an assertion of general jurisdiction. In light of the Court's decision in Helicopteros, this conclusion must be correct.(42)

Another relatively obvious analogy is exemplified by Blumenthal v. Drudge and America Online.(43) Although the court focused on the interactive nature of the individual defendant's web site, the plaintiff's defamation claim closely resembles that involved in Calder. The plaintiff was a White House employee whose connection with the District of Columbia paralleled that of Jones to California. The Drudge Report containing the alleged libel was circulated in the District, albeit on the internet, and given its political and gossip content was designed for an audience likely to live there. The column, while posted on the defendant's web site, also was ent to subscribers via e-mail. Had the internet not been involved, a one line cite to Calder would have explained the decision.

Many cases arise from allegations of trademark infringement by the defendant through its use of a web site name. Zippo Manufacturing Company v. Zippo Dot Com, Inc.(44) has provided the analytical framework most commonly used by lower courts. The plaintiff, which manufactured Zippo lighters, sued the California defendant, an internet news service, in the western district of Pennsylvania for violations of trademark laws. The court's critical insight was:

... the likelihood that personal jurisdiction can be constitutionally exercised

is directly proportionate to the nature and quality of commercial activity that

an entity conducts over the Internet. This sliding scale is consistent with well

developed personal jurisdiction principles. At one end of the spectrum are

situations where a defendant clearly does business over the Internet. If the

defendant enters into contracts with residents of a foreign jurisdiction that

involve the knowing and repeated transmission of computer files over the

Internet, personal jurisdiction is proper. At the opposite end are situations

where a defendant has simply posted information on an Internet Web site

which is accessible to users in foreign jurisdictions. A passive Web site

that does little more than make information available to those who are

interested is not grounds for the exercise of personal jurisdiction. The middle

ground is occupied by interactive Web sites where a use can exchange

information with the host computer. In these cases, the exercise of jurisdiction

is determined by examining the level of interactivity and commercial nature

of the exchange of information that occurs on the Web site.(45)

The failure of a passive web site to alone sustain jurisdiction been previously noted in a case Zippo cites, Bensusan Restaurant Corp. v. King, (46) in which the court acknowledged that placing a site on the internet permits access throughout the world but denied that the defendant's act was directed toward New York. The common sense justification for the decision is two-fold: first, a party who wishes to post anything on a web site cannot control or limit where the site is accessed; it is not possible to choose "local" as opposed to "worldwide" distribution. Second, the poster itself does not determine who sees the site; "pull" technology requires an active rather than passive viewer.

Similarly, Zippo's treatment of actual contractual sales utilizing internet technology follows prior case law and is not problematic. If a contract for the sale of a book subjects a non-resident seller to jurisdiction in the buyer's home forum should the book be missing the second chapter, it makes no difference whether the agreement to sell the book was entered into over the telephone or over the internet.(47)

It is, of course, the "middle ground" that most cases in which jurisdiction is litigated occupy. One example of Zippo's application is sufficient here: Millenium Enterprises, Inc. v. Millennium Music Lp.(48) This, too, was a trademark case; in agreement with other courts, the issue was framed as whether the defendant's efforts had been "purposefully directed toward forum residents."(49) In determining that the answer was "no," the court carefully identified the kind of technology involved (while characterizing it as "interactive," the technology itself permitted the actual conduct of business over the site, from which compact discs could be purchased) and the extent to which that technology had actually been used by residents of the forum. Refusing to conflate the potential for with the reality of conducting business,(50) the court found that without "something more" jurisdiction would be improper.

Courts utilizing Zippo first determine that the site at issue is not merely passive. If it is not, the search then becomes for additional acts by the defendant, either on or off the internet, which would justify a conclusion that the defendant directed his activities at or targeted the forum. As the Millenium court noted, this search is presumably propelled by Justice O'Connor's plurality opinion in Asahi. But it raises the issue noted above: is targeting per se sufficient to sustain jurisdiction absent the economic benefit that accrues when a product is sold in the forum? While if the court requires actual sales, that benefit will exist, surely there are other ways to demonstrate that a given site "targets" a forum. Content alone, for example, might be sufficient: if my web site advertises "the boots that conquered Mt. Denali," have I targeted Alaska? In any event, if targeting the forum is sufficiently purposeful to satisfy Hanson, the claim must still be related to that targeting. In the suit by an injured purchaser, courts are seemingly satisfied by the fact that, without the purchase, no injury could have occurred. Presumably, when a claim alleges that the plaintiff's trademark has been infringed, the purposeful insertion of the infringing site into the forum forms the basis of the plaintiff's suit.


1. Any deprivation of property by the United States, pursuant to the Fifth Amendment to the U.S. Constitution, or by a state, pursuant to the Fourteenth Amendment, must comport with due process; either the extinguishing of a claim by an unsuccessful plaintiff or the award of damages to a successful one constitutes such a deprivation. Courts of each state are required to give full faith and credit to judgments of other states (Article IV, Section 1, U.S. Constitution) only if those judgments also satisfy the constitutional requirement. Pennoyer v. Neff, 95 U.S. 714 (1877).

2. Before asserting jurisdiction, a court must be statutorily authorized to do so. Only when such authorization exists does the constitutional inquiry arise. Neither states nor the United States are required to assert the entirety of constitutionally permissible jurisdiction. Compare, for example, Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961) with Feathers v. McLucas, 15 N.Y.2d 443, 209 N.E.2d68 (1965).

3. International Shoe Co. v. Washington, 326 U.S. 310 (1945). Prior to the Shoe decision, the Court's focus had been on the power of the state rendering the judgment to enforce it. In accordance with then-current understanding of public (international) law, the Pennoyer Court had identified the situations in which such powers existed: 1) the defendant had been personally served with process while physically present in the state (the state could theoretically imprison the defendant until the litigation was resolved and, if ordered to do so, the judgment paid; in exchange for the state's willingness to permit the defendant to leave the jurisdiction, other states acknowledged the "power" of the judgment-rendering state and agreed to enforce its decisions); 2) property belonging to the defendant in the forum state was seized at the commencement of the lawsuit (thus providing a fund from which to pay the successful plaintiff); 3) the defendant was a citizen (or domiciliary or resident) of the forum (international law acknowledged the right of each state to assert jurisdiction over its own nationals even if their absence); 4) the defendant consented to the assertion of jurisdiction (thus obviating any issue of the actual power to enforce the judgment); and 5) the lawsuit involved the status of the defendant under the domestic law of the forum (for example, an absent defendant's marital status vis a vis a citizen of the forum). However, as society became more mobile and as the Court's appreciation of the full faith and credit clause grew, it became apparent that the Pennoyer Court's understanding was both unworkably narrow and unnecessary.

4. 326 U.S. at 316.

5. Id. at 319.

6. Hanson v. Denckla, 357 U.S. 235, 253 (1958).

7. 326 U.S. at 317.

8. Id. at 318.

9. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

10. See note 3, supra.

11. Shaffer v. Heitner, 433 U.S. 186, 212 (1977).

12. Burnham v. Superior Court, 495 U.S. 604 (1990).

13. Id. at 621.

14. Id. at 640.

15. The literal language of Shoe, if not its logic, supports the result; the Court there said that "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts ..." 326 U.S. at 316 (1945).

16. See, for example, Hess v. Pawloski, 274 U.S. 352 (1927), in which a state's jurisdiction over a nonresident motorist was justified because, according to a Massachusetts statute, the motorist had "consented" to the appointment of a state official as his agent for service of process when he drove into the state. Such consent, of course, is totally fictional and hardly is what the Pennoyer Court rightly thought obviated the need for state power to enforce its judgment.

17. 22 Ill.2d 432, 176 N.E.2d 761 (1961).

18. 444 U.S. 286 (1980).

19. In dissent, Justices Marshall and Brennan argued that the defendants did indeed benefit from the existence of Audi dealerships and repair facilities throughout the United States, including Oklahoma, and that such indirect benefit, like that identified in Gray, ought suffice, at least in light of the fact that cars are intended to be driven from one place to another.

20. 480 U.S. 102 (1987).

21. Id. at 103.

22. Id.

23. Id. at 117.

24. Id. at 122.

25. 465 U.S. 783 (1984).

26. No matter how slight the actual activity of the defendant in the state is, jurisdiction is constitutionally proper if the claim arises directly out of that activity, as libel arises out of the sale of the paper in the state. Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984).

27. 471 U.S. 462 (1985).

28. Id. at 485.

29. The initial post-Shoe discussion of jurisdiction based on personal service of process on the defendant while physically within the forum (and perhaps based on the seizure of real property at the commencement of the lawsuit) doesn't fit the specific/general jurisdiction framework; the contact with the state may well be anything but continuous and systematic, but the propriety of a jurisdictional assertion has nothing to do with the nature of the claim. The traditional justification for the kind of jurisdiction, of course, was the power of the forum to enforce its judgment, not the chosen contacts of the defendant with the state.

30. There is a difference between claims that are related to a defendant's contacts with the forum and those that arise from the contacts. In the latter instance, the contact is itself an element of the claim; jurisdiction is then clear. A good example is Keeton v. Hustler Magazine, Inc., a libel suit in which the defendant argued that the plaintiff's close-to-total lack of contact with the forum and its own negligible sales there ought defeat jurisdiction. The Court, however, held that the claim arose out of the sale of magazines in the state and jurisdiction was, therefore, proper. By contrast, when the defendant's contact with the forum state is via the stream of commerce, a claim for tortious injury there caused by the product is related to but does not arise out of the forum contact. Without the defendant's use of the stream of commerce, the final product would not have been purchased by the plaintiff in the state; however, it is an alleged negligent act elsewhere that allegedly makes the defendant liable to the plaintiff for damages. In this fact pattern, jurisdiction might be defeated if other factors make the forum a less "reasonable" one, for example if the injury occurred outside the state, so that witnesses and evidence were not easily available in the state in which the purchase had taken place.

31. Blackmer v. United States, 284 U.S. 421 (1932) (absent citizen of the U.S. subject to the jurisdiction of courts of the U.S.); Milliken v. Meyer, 311 U.S. 457 (1940) (absent citizen of a state subject to the exercise of personal jurisdiction by courts of the state).

32. 342 U.S. 437 (1952).

33. 466 U.S. 408 (1984).

34. Id. at 409.

35. Id. at 418. In support of its holding, the majority cited Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516 (1923), a pre-Shoe case involving an attempted assertion of personal jurisdiction by New York over an Oklahoma retail purchaser of men's clothing. The Court specifically noted that it was not determining whether, on similar facts today, an exercise of specific jurisdiction over the defendant would be permissible; the Rosenberg holding was that the defendant was not "present" in New York by virtue of its purchases, so as to subject it to jurisdiction there under the logic of Pennoyer.

36. Ownership of real property in the state, for instance, may not be the equivalent of residency; residency is possible without ownership, and ownership need not include use of the property. However, it too provides a permanent connection to the state; arguably the jurisdictional implications of that connection are best considered here rather than as an analogy to the holding of the Court in Burnham regarding jurisdiction based on the personal service of process on a defendant present in the forum.

37. Bryant v. Finnish National Airline, 15 N.Y.2d 426, 208 N.E.2d 439 (1965).

38. Nichols v. G.D. Searle & Co., 221 F.2d 1195 (4th Cir. 1993) (assuming that employees engaged in advertising and solicitation work out of an office).

39. While courts generally assume that a corporation is a citizen of both its state of incorporation and the state of its principal place of business for purposes of general jurisdiction (these being the states of corporate citizenship for purposes of diversity jurisdiction under 28 U.S.C. s 1332), this convenience argument might logically be used to defeat jurisdiction based solely on state of incorporation. While many corporations are incorporated in Delaware, that frequently is their only contact with the state and, at least with respect to claims unconnected to Delaware law (for example, a vehicular accident in Missouri), Delaware does not seem intuitively to be a "reasonable" forum.

40. See National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311 (1964).

41. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).

42. See Digital Equipment v. Altavista Technology, 960 F.Supp. 456 (D.Mass. 1997). Apparently, only one case has found an assertion of general jurisdiction over a non-resident defendant to be proper based, in part, on its internet contacts with the forum. In Mieczkowski v. Masco Corp., 997 F. Supp. 782 (E.D. Texas 1998), the court asserted jurisdiction over a North Carolina manufacturer of a children's bed, although the bed which had allegedly caused the death of the plaintiff's son had been sold by the defendant to a third party in Washington, D.C., who thereafter sold it to the plaintiff in Virginia. The defendant had, however, apparently sold the same product to Texas residents and maintained a web site from which its products could be ordered. While the plaintiff's claim clearly had nothing to do with those contacts, clearly also an identical claim could have arisen from the sale of a bed to a Texas resident; the court's jurisdiction over that claim would have been unquestioned. Given that the burden of defending the plaintiff's suit was no different than the burden of defending a suit arising from the sale of a bed in Texas which the defendant had already assumed, arguably due process was not offended by the assertion of general jurisdiction. See Buckeye Boiler Co. v. Superior Court, 71 Cal.2d 893, 458 P.2d 57 (1969). In one sense, this is not "true" general jurisdiction, but a limited variety of it which is justified by the similarity between the actual claim and the specific jurisdiction which could be asserted.

43. 992 F.Supp. 44 (D.C. 1998).

44. 952 F.Supp. 1119 (W.D. Pennsylvania 1997).

45. Id. at 1124 (citations omitted).

46. 937 F.Supp. 295 (S.D.N.Y. 1996), aff'd 126 F.3d 25 (2d Cir. 1997).

47. The issue of jurisdiction over the buyer who refuses to pay for conforming merchandise is less clear; merely entering into the contract, without more, is insufficient. See Burger King, supra note 27. However, again the medium through which the agreement is reached is not determinative.

48. 33 F. Supp.2d 907 (D. Oregon 1999). The case includes a good review of cases decided both before and after Zippo.

49. Id. at 910, 911.

50. The only sale to an Oregon resident had been made at the behest of the plaintiff.


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