Preliminaries 3: Personal Jurisdiction

This unit shifts the analysis from jurisdiction over the subject matter of the controversy to jurisdiction over person(s), particularly defendant(s) in civil litigation. Personal Jurisdiction (“PJ”), like Venue and SMJ, can be thought of as playing two roles in our course. First, their absence (lack of SMJ, lack of PJ, lack of Venue) can be defenses a defendant might assert to an action to get it thrown out, for example, as FRCP 12(b)(1)–(3) defenses.

The second perspective is that they tell you, as a Plaintiff’s lawyer, in what court you can file your case. Collectively the three can be thought of as reducing the number of courts that can hear a case. SMJ tells us which system, federal or state, can hear the case: only the system with SMJ over the case or controversy. Personal Jurisdiction, meanwhile, will tell us the courts of which state within a system may hear a case: only those with personal jurisdiction over the defendant (for the most part for personal jurisdiction we don’t care about the plaintiff, she can take care of herself by deciding where to bring the action). Venue will tell us which court is appropriate within a state.

As with SMJ, there is both a constitutional power (this time, the Constitution acts as a limit to which courts may hear a case, through the Due Process Clause of the 5th and 14th Amendments) and a statutory grant authority (here in the form of so-called state "long-arm" statutes, or FRCP 4(k) in the federal system). As an aside, they are called “long-arm” statutes because they reach outside the state’s borders to grab cases not occurring within the territory of the state of the court that is seeking to assert personal jurisdiction over the defendant(s). When it comes to this statutory grant of authority, we also have variability between the states, as we will see. Some “long-arm” statutes go to the constitutional limits, i.e., allowing a state to “grab” any case where the Constitution permits it to do so; other states have chosen to have more limited laws.

It is also possible that a state’s long-arm statute purports to reach a case beyond the constitutional limit—you need to watch out for this. When the two conflict, the Constitution trumps because in our legal system federal law is supreme.

For personal jurisdiction, by the end of this unit, we will work our way up to a general three-part approach to these questions on an exam (and more-or-less in real life): (1) Does a traditional basis of jurisdiction apply? If yes, for the purposes of our course, you are done; there is personal jurisdiction. (2) If no, does the state’s long-arm statute purport to reach the defendant in this case? If no, you are also done; there is NO personal jurisdiction. (3) If the long arm does apply, is the assertion of personal jurisdiction constitutional as to the facts of this case, i.e., does asserting personal jurisdiction here exceed the Constitution’s limits? That last question will turn out to be where we spend most of our time.

5.1 In Personam, In Rem, Quasi in Rem: While our discussion of personal jurisdiction in the course will focus almost exclusively on what is called in personam personal jurisdiction, this reading briefly introduces you to two less common forms of personal jurisdiction: in rem and quasi in rem.

5.2 Diagram, Basics of PJ provides a diagram we will “work our way up to,” capturing what you will learn in much of this unit. It will not make much sense until we are further into the unit.

5.3 Traditional Bases and Modern Constitutional Limits: We will begin with a very brief overview of the history of personal jurisdiction from the 1877 decision in Pennoyer v. Neff to the decision in International Shoe v. Washington in 1945. You will learn about the four traditional bases for PJ: (i) Presence, (ii) Domicile, (iii) Agency, and (iv) Consent (express or implied). To oversimplify the real world, I will ask you to assume that when one has one of these traditional bases there is both statutory authorization for PJ and the assertion of jurisdiction here will satisfy Due Process. In a later portion of this unit we will revisit the constitutional treatment of presence and consent. International Shoe represents the watershed case that reset the playing field as to the constitutional analysis and has now been understood to split the doctrine between “general” and “specific” in personam personal jurisdiction.

5.4 Introduction to Long Arm Statutes State Long Arms introduces you to the statutory portion of the personal jurisdiction analysis (the second of the three questions mentioned above). We will use the Gray case to show you how courts engage in statutory interpretation of long-arm statutes as well as look at some more modern long-arm statutes. Students often get tripped up on this, so I want to emphasize we are only reading the long-arm analysis part of the Gray decision as an example of a state Supreme Court interpreting its own long-arm. You might also wonder whether the assertion of PJ in Gray would be constitutional or not—but we will deal with cases before U.S. Supreme Court answering that exact question later in this unit.

The next two sub-units distinguish specific in personam personal jurisdiction from general in personam personal jurisdiction. For specific, but not for general, we require a connection between the defendant(s) activities in the state and claim the plaintiff is bringing in court. We will discuss exactly how close that connection has to be as we work our way through the cases.

5.5 Development of General In Personam Personal Jurisdiction teaches you about the easier-to-apply but much harder-to-obtain form of constitutional in personam personal jurisdiction: General in personam personal jurisdiction (“general PJ” for short). We will see that the court has arrived at a very clear test, but one that is quite narrow in the cases it reaches.

5.6 Development of Specific in Personam Jurisdiction will occupy most of our time in this unit. There are a series of cases from Mcgee v. International Life Insurance in 1953 to the present day that develop constitutional specific (also called “arising out of” or “case linked”) in personam personal jurisdiction (“specific PJ” for short). These roughly ten cases form an interlaced tapestry of doctrine. Students often find that looking at all these cases at once is overwhelming, so I have attempted to loosely group them in the way I think of them being in dialogue with one another and involving some archetypal fact patterns.

1. The first grouping draws a foundational distinction between unilateral activity and purposeful availment as a touchstone for specific PJ that we will see inspires much of what follows.
2. The second grouping concerns how the court treats contracts for PJ purposes and separately the so-called “effects test.”
3. The third grouping are cases focused on the “stream of commerce,” when a component or a finished product made and sold in one place “washes up on the shore” (to continue the metaphor) of another place.
4. A final grouping are cases about the required nexus between ties to a state and the facts giving rise to the cause of action, although the Ford case arguably bridges the gap between the stream-of-commerce and the nexus cases.

With this sub-unit and the prior one in hand, you will be well-poised to answer the third of my three questions discussed above: If the long arm does apply, is the assertion of personal jurisdiction constitutional in that case?

5.7 How the Personal Jurisdiction Analysis is Different in Federal Court. You can now undertake a full analysis of in personam personal jurisdiction in state courts. This sub-unit examines how, if at all, the analysis is different in federal courts. The answer, happily for students, is “not much.” For “statutory” (scare quotes) authorization we will see there is what is colloquially called a federal long-arm in FRCP 4(k). We will then briefly discuss the open questions of whether the constitutional analysis is any different if the Fifth Amendment to the Constitution (relevant to the federal government) applies rather than the Fourteenth Amendment.

5.8 Personal Jurisdiction in the Internet Age discusses the surprising truth that the Supreme Court has yet to explain how to apply its cases to contacts between defendants and states that are internet-related. It will tell you a little bit about the evolution in thinking of the lower courts, but unfortunately these problems pose more questions than answers. This sub-unit is more of an “FYI” than something I will test you on.

5.9 Traditional Bases Revisited, returns to two of the traditional bases from Pennoyer—presence and consent—and shows you how the courts are currently thinking about them.