The Single Contract as Minimum Contacts: Justice Brennan "Has it His Way
The S ingle Contract as Minimum Contacts: Justice Brennan "Has it His Way "
Pamela J. Stephens 0
0 Pamela J. Stephens, Th e Single Contract as Minimum Contacts: Justice Brennan "Has it His Way", 28 Wm. & Mary L. Rev. 89 (1986), https://scholarship.law.wm.edu/wmlr/vol28/iss1/3
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INTRODUCTION
In the past ten years the Supreme Court has made major
changes in its approach to personal jurisdiction." The Court has
forged two independently developed lines of cases into one
standard 2 that depends upon InternationalShoe Co. v.
Washington.It has addressed personal jurisdiction concerns in the contexts of a
single serious tort,4 a child custody dispute,5 personal injury
liability insurance,6 and a first amendment challenge.7 Until 1985,
however, the Court had failed, even when presented with the
opportunity, to address personal jurisdiction limitations when a
nonresident's contact with the forum state consists of a single
contract rather than ongoing business activities.'
Unaided by the Supreme Court, lower federal and state courts
have grappled with this issue and have reached widely varying
results, supported by widely varying assumptions about the Supreme
Court's current posture.' Those results range from a willingness to
assert jurisdiction based solely on the existence of a contract
be* Associate Professor, Vermont Law School; B.A., 1977, Ohio State University; J.D., 1975,
University of Cincinnati.
1. For a general discussion of the Supreme Court's changes, see Jay, "Minimum
Contacts" as a Unified Theory of PersonalJurisdiction:A Reappraisal,59 N.C.L. REV. 429
(1981); Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U. L. REV. 33 (1978).
2. Shaffer v. Heitner, 433 U.S. 186 (1977).
3. 326 U.S. 310 (1945).
4. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).
5. Kulko v. Superior Court, 436 U.S. 84 (1978).
6. Rush v. Savchuk, 444 U.S. 320 (1980).
7. Keeton y. Hustler Magazine, Inc., 465 U.S. 770 (1984); Calder v. Jones, 465 U.S. 783
(1984).
8. See Lakeside Bridge & Steel Co. v. Mountain State Constr. Co., 445 U.S. 907, 909-10
(1980) (White, J., dissenting from denial of certiorari).
9. See id. (Justice White cited several examples); Note, Long-Arm Jurisdictionin
Commercial Litigation: When is a Contract a Contact?, 61 B.U.L. REv. 375 (1981).
tween a resident and nonresident'0 to examinations not only of the
contract itself, but also its surrounding circumstances. Courts have
considered the relative bargaining power of the parties 1 and the
nonresident's status as either the buyer or seller 2 or as the
"passive" or "aggressive" party to the contract.' s The assumptions
range from an emphasis on sovereignty concerns and the
purposefulness of the defendant's contacts with the forum state 4 to
emphasis on reasonableness, fairness, inconvenience to the defendant,
and the forum's interest in the litigation.' 5
In Burger King Corporationv. Rudzewicz, s the Supreme Court
finally focused directly on the single contract issue and purported
to establish a general standard for the assertion of personal
jurisdiction in such cases.' 7
10. See, e.g., Mouzavires v. Baxter, 434 A.2d 988 (D.C. 1981), cert. denied, 455 U.S. 1006
(1982).
11. See, e.g., Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079 (1st Cir. 1973).
12. Leoni v. Wells, 264 N.W.2d 646 (Minn. 1978). The court said, "However, our cases
have delineated a sharp distinction between nonresident sellers and nonresident buyers.
With respect to the latter, an isolated purchase of goods from a Minnesota seller will not by
itself subject the buyer to the jurisdiction of Minnesota courts." Id. at 647.
16. 105 S. Ct. 2174 (1985).
17. Id. at 2185. "At the outset, we note a continued division among lower courts
respecting whether and to what extent a contract can constitute a 'contact' for purposes of due
process analysis." Id.
1986]
This Article reviews the Supreme Court's post-International
Shoe decisions to determine what, if any, guidelines the Court had
given for personal jurisdiction in single contract cases prior to the
Burger King case. It also examines lower federal court and state
court decisions to establish the range of factual situations
presented and the ways courts have dealt with them. The Article
highlights the distinction drawn in the cases between specific and
general jurisdiction. It also considers in detail the Supreme Court's
decision in Burger King and its application to future single
contract cases. Lastly, the Article focuses on how Burger King affects
the law of personal jurisdiction as a whole, suggesting that,
perhaps in spite of itself, the Court is moving away from sovereignty
as the basis for due process concerns in the area and toward a
multifactored analysis. Such an analysis considers not only the
nonresident's right to a fair and convenient forum, but also the plaintiff's
interest in bringing the case in a particular forum and the forum's
interest in retaining jurisdiction. The Article also addresses
implica (...truncated)