Beyond Burger King: The Federal Interest in Personal Jurisdiction

Fordham Law Review, Dec 1987

By David S. Welkowitz, Published on 01/01/87

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Beyond Burger King: The Federal Interest in Personal Jurisdiction

Beyond Burger King : The F Personal Jurisdiction David S. Welkowitz 0 0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact Recommended Citation David S. Welkowitz, Beyond Burger King : Th e Federal Interest in Personal Jurisdiction, 56 Fordham L. Rev. 1 (1987). Available at: - Article 1 OCTOBER 1987 NUMBER 1 BEYOND BURGER KING: THE FEDERAL INTEREST IN PERSONAL JURISDICTION ............. POLITICAL PARTIES AND THE CAMPAIGN FINANCE LAWS: DILEMMAS, CONCERNS AND OPPORTUNITIES ........... David S. Welkowitz Kirk J. Nahra PROSECUTORIAL MISCONDUCT IN THE GRAND JURY: DISMISSAL OF INDICTMENTS PURSUANT TO THE FEDERAL SUPERVISORY POWER ...................................... 1 53 111 NOVEMBER 1987 NUMBER 2 INTRODUCTORY REMARKS .............. Dean John D. Feerick 151 153 181 209 INTEREST ARBITRATION: THE ALTERNATIVE TO THE STRIKE ......... Arvid Anderson and Loren A. Krause EdwardSilver and Joan McAvoy NOTES EMPLOYEES' RECOVERY OF ATTORNEYS' FEES FROM UNIONS UNDER SECTION 301 OF THE LABOR MANAGEMENT RELATIONS ACT ........................... DECEMBER 1987 NUMBER 3 CONTENTS NUMBER 4 MARCH 1988 PROPOSED SEC REGULATION OF MARKET SWEEPS: SHOULD MARKET SWEEPS BE GOVERNED BY THE W ILLIAMS ACT? ................................... NUMBER 5 APRIL 1988 THE AUTOMATIC COMPANION RULE: AN APPROPRIATE STANDARD TO JUSTIFY THE TERRY FRISK OF AN ARRESTEE'S COMPANION? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 THE CIVIL RICO PATTERN REQUIREMENT: CONTINUITY AND RELATIONSHIP, A FATAL ATTRACTION?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955 APPELLATE REVIEW OF DOUBLE JEOPARDY CLAIMS IN THE GUILTY PLEA CONTEXT ................... THE SONG IS OVER BUT THE MELODY LINGERS ON: PERSISTENCE OF GOODWILL AND THE INTENT FACTOR IN TRADEMARK ABANDONMENT ........................................... BOOK REVIEW USER FRIENDLY CIVIL PROCEDURE: PRAGMATIC PROCEDURALISM SLOUCHING AWAY FROM PROCESS THEORY ...................... Linda S. Mullenix 1023 933 983 1003 MAY 1988 CONTENTS RICO FORFEITURE AND OBSCENITY: PRIOR RESTRAINT OR SUBSEQUENT PUNISHMENT? ........ APPLICATION OF THE CAUSE AND PREJUDICE STANDARD TO PETITIONS UNDER 28 U.S.C. § 2255 BY GUILTY PLEA DEFENDANTS .............................. CONSTITUTIONALITY OF REGULATIONS RESTRICTING PRISONER CORRESPONDENCE WITH THE MEDIA ............ CERCLA CLEANUP COSTS UNDER COMPREHENSIVE GENERAL LIABILITY INSURANCE POLICIES: PROPERTY DAMAGE OR ECONOMIC DAMAGE? .............. DEFAMATION OF TEACHERS: BEHIND THE TIMES. ...................................... THE CONSTITUTIONALITY OF REQUEST NOTICE PROVISIONS IN IN REM TAX FORECLOSURES ............... IN MEMORY OF DEAN JOSEPH R. CROWLEY BEYOND BURGER KING: THE FEDERAL INTEREST IN PERSONAL JURISDICTION DAVID S. WELKOWITZ * INTRODUCTION Now, one would think that in a rational system, especially one that seeks (or should seek) clarity and definiteness, experienced lawyers could simply and with conviction unanimously answer [the client's] question: 'Can I sue the guy who sold me the [defective] tanker here in Indiana?' But alas we know, to our embarrassment, that the only honest answer the lawyer can probably give is a 'Gee, I can't say for sure." THAT statement, by Judge Evans in Hall's Specialties, Inc. v. Schupbach,2 capsulizes the frustration of courts attempting to determine whether the assertion of jurisdiction over a defendant comports with constitutional standards. Even after numerous Supreme Court decisions spanning the past several years,' the subject remains imponderable. Although most case law and commentary on the subject focus on the exercise of jurisdiction by state courts, the problem is no less complex in the federal courts.4 Unfortunately, case law provides little thoughtful * Associate Professor, Whittier College School of Law. J.D. New York University School of Law, 1978; A.B. Princeton University, 1975. I would like to thank my colleague David Treiman for his insightful comments on earlier drafts of this Article and for his willingness to discuss ideas as this Article progressed. I would also like to thank Ellis Prince and Richard Gruner for their comments on an earlier draft of the Article. Finally, I thank Gary Wittenberg, Whittier '87, for his research assistance. 1. Hall's Specialties, Inc. v. Schupbach, 758 F.2d 214, 216 (7th Cir. 1985). 2. Id 3. See Asahi Metal Indus. Co. v. Superior Ct., 107 S.Ct. 1026 (1987); Burger King Corp. v. Rudzewicz, 471 US. 462 ( 1985 ); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 US. 408 ( 1984 ); Calder v. Jones, 465 US. 783 ( 1984 ); Keeton v. Hustler Magazine, 465 US. 770 ( 1984 ); Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 US. 694 (1982); World-Wide Volkswagen Corp. v. Woodson, 444 US. 286 (1980); see also Rush v. Savchuck, 444 US. 320 (1980) (quasi in rem jurisdiction). 4. Recently, interest in jurisdiction problems in federal courts has increased. See. e-g., Abrams, Power, Convenience, and the Elimination of Personal Jurisdictionin the FederalCourts, 58 Ind. L.J. 1 (1982) (arguing for a federal concept of personal jurisdiction based on presence of defendant in United States); Berger, Acquiring In Personam Jurisdictionin Federal Question Cases: ProceduralFrustration Under Federal Rule of Civil Procedure4, 1982 Utah L. Rev. 285; Fullerton, ConstitutionalLimits on vationwide PersonalJurisdictionin the Federal Courts, 79 Nw. U.L. Rev. 1 (1984) (arguing that the Constitution does limit the exercise of personal jurisdiction by federal courts); Green, FederalJurisdictionIn Personam of Corporationsand Due Process, 14 Vand. L. Rev. 967 (1961) (sufficient contacts with some part of United States rather than forum state alone should result in jurisdiction over corporation); Sann, PersonalJurisdiction in Federal Question Suits: Toward a Unified andRationalTheoryfor PersonalJurisdictionover Xon Domiciliaryand Alien Defendants, 16 Pac. L.J. 1 ( 1984 ) (prescribing "consistent, sensible" scheme of personal jurisdiction in federal question cases); Seidelson, The Jurisdictional Reach of a FederalCourt Hearinga Federal Causeof Action: A Path Through the Maze, 23 Duq. L. Rev. 323 ( 1985 ) (arguing that a federal court hearing a federal cause of guidance for a federal judge faced with a personal jurisdiction issue. This Article examines the problem of personal jurisdiction or "amenability" 5 with a focus on federal courts, and develops an analytical framework that can be used by all courts, state and federal, in resolving personal jurisdiction questions. Part I analyzes current limitations on personal jurisdiction, concentrating on federal question and diversity cases. It discusses the inappropriateness of current analysis. Part II discusses the role of Federal Rules of Civil Procedure Rule 4 in personal jurisdiction and the constitutional limitations on its exercise. It concludes that courts interpret Rule 4 too restrictively and often use an incorrect constitutional standard to measure the assertion of personal jurisdiction in federal courts. Parts III and IV propose that the constitutional standard used must be one better integrated with other due process analyses. Moreover, this Article proposes that fifth amendment, rather than fourteenth amendment, standards should govern all federal actions. Current jurisdictional analysis fails to do justice to either the federal interests involved or to the rights of the parties. The proposal advanced in this Article addresses these problems in state and federal courts, focusing on federal courts, where the lack of a realistic standard seems most pronounced. Part V discusses how the federal courts should apply the proposed standard in different categories of cases. Although in many instances the results achieved by the proposed test will not differ from those reached using existing analyses, the proposal is intended to make the process more rational and consistent. I. DUE PROCESS LIMITS In 1877, the Supreme Court in Pennoyer v. Neff,6 recognized that due process limits the exercise of personal jurisdiction by the courts. 7 Jurisaction may assert jurisdiction over non-resident defendant in any manner provided by rules or statute); Stephens, The FederalCourtAcross the Street: ConstitutionalLimits on FederalCourt Assertions of PersonalJurisdiction, 18 U. Rich. L. Rev. 697 (1984) (sug gesting that the fifth amendment compels consideration in federal court jurisdiction similar to those considerations the fourteenth amendment imposes upon state courts); Note, Alien CorporationsandAggregate Contacts: A GenuinelyFederalJurisdictionalStandard, 95 Harv. L. Rev. 470 (1981) [hereinafter Note, Alien Corporations](noting the need for a theoretical basis for an acceptable federal jurisdictional standard, suggests implementation of the aggregate contacts test). 5. "Amenability" refers to the authority of a court to force a defendant to come into the forum and to render a valid judgment against a party, assuming proper notice is given. It is distinct from service, which serves as the method of giving notice. Technically, proper jurisdiction requires both amenability and notice, as well as process that accords with the local statutes. Although the Constitution does not require compliance with local statutes, failure to do so will be fatal to jurisdiction nonetheless. See Abrams, supra note 4, at 3-4. 6. 95 U.S. 714 (1877). overruled, Shaffer v. Heitner, 433 U.S. 186, 212 (1977). 7. See id. at 733. In Pennoyer, the Court simply used a "sovereign power" theory of jurisdiction. According to this analysis, the sovereign has authority over anything within its borders and nothing outside them. See id. at 722-23; see also, Gottlieb, In Search of the Link Between Due ProcessandJurisdiction,60 Wash. U.L.Q. 1291, 1291-1300 (1983); dictional analysis, however, seldom is discussed in relation to other due process analyses,' but rather is discussed as a unique subset of due process.9 On its face, this seems curious. 10 Jurisdictional analysis has evolved since Pennoyer. The "modem" approach to jurisdiction and due process dates from InternationalShoe Co. v. Washington." There, the Court further defined due process to require that a defendant have "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' "12 But as Justice Black, concurring in the result, pointed out, such a standard is highly subjective and difficult to apply. 3 As a result, courts have struggled with the task of determining what "minimum contacts" and "fairness" mean in the jurisdictional context. The language of InternationalShoe indicates that the sufficiency of the "contacts" is measured against some concept of "fairness."' 4 Clearly, "fairness" must have some context; contacts that are sufficiently fair in one setting will not necessarily be fair in another setting.' 5 In its subsequent decision in McGee v. InternationalLife Insurance Co., 6 the Supreme Court indicated that, in addition to the sufficiency of the defendant's contacts with the forum, the state's interests in the conflict would be relevant to the court's determination of finding the defendant amenable to jurisdiction.' 7 The state's interest in McGee consisted of providing a convenient forum for its citizens injured by out-of-state busi Redish, Due Process,Federalism,and PersonalJurisdiction:A TheoreticalEvaluation, 75 Nw. U.L. Rev. 1112 (1981). 8. See infra notes 145-158 and accompanying text for a discussion of traditional due process analyses. 9. See, e.g., 2 R. Rotunda, J. Nowak, J. Young, Treatise on Constitutional Law Substance and Procedure (3d ed. 1986). This three volume standard text on constitutional law by Professors Nowak, Rotunda, and Young does not discuss personal jurisdiction in its due process sections. The treatise relegates the entire subject to a single, albeit lengthy, footnote. See id. § 17.8, at 252 n.10. The authors state that a discussion of personal jurisdiction "is beyond the scope of this treatise." Id. 10. This recalls Professor Ely's remark that "to one accustomed to the savagery of constitutional criticism, writers on procedure seem strangely, if refreshingly, accepting." Ely, The IrrepressibleMyth of Erie, 87 Harv. L. Rev. 693, 698 (1974). 11. 326 US. 310 (1945). 12. Id. at 316 (quoting Milliken v. Meyer, 311 US. 457, 463 (1940)). 13. See id. at 325 (Black, J., concurring). Justice Black noted that "there is a strong emotional appeal in the words 'fair play,' 'justice' and 'reasonableness'... [b]ut they were not chosen by those who wrote the original Constitution." Id. at 310. 14. Id. at 320. 15. For example, suppose that an insurance company sold a policy to the plaintiff's employer in Connecticut. The plaintiff, a New York resident, fairly could not sue the company in California, although the company had sold one insurance policy in California to a third party. Cf. McGee v. International Life Ins. Co., 355 US. 220 (1957). According to McGee, the person to whom the California policy was sold, however, could sue the insurance company in California. See id. at 223. 16. 355 US. at 220. 17. See id. at 222-23. nesses.1 McGee also implicitly recognized that the overall reasonableness of the situation may allow jurisdiction. 9 InternationalShoe and McGee seem to require the use of a test that balances governmental interests against private rights when determining the question of fairness.2 ° The Court's more recent decisions concerning personal jurisdiction, however, suggest that a traditional balancing test is not being used. These decisions, most notably World-Wide Volkswagen Corp. v. Woodson 2 and Burger King Corp. v. Rudzewicz, 22 have adopted the formula stated in Hanson v. Denckla,2 3 -that the defendant must have "purposely availed" itself of the benefits and protections of the forum's laws before due process will be satisfied.24 By adopting purposeful availment as the sine qua non of amenability, the Court has turned a balance of factors analysis into a two-step process that is highly protective of defendants. First, courts must determine whether the defendant has sufficient "contacts" that have resulted in its purposeful availment of the benefits and protections of doing business in the forum that the defendant may " 'reasonably anticipate' out-of-state litigation."2 5 Only then does the court examine other interests to determine the fairness of asserting jurisdiction under the circumstances. Under this test, no matter how strong the other interests in litigating in a particular forum may be, if the defendant has not purposely availed itself of the forum state's laws, it normally cannot be subjected to the jurisdiction of that forum's courts.2 6 The Court's opinion in Burger King; lustrates the emphasis placed on contacts and deemphasis placed on other interests. The defendants in Burger King, residents of Michigan, 7 entered into an agreement with Burger King, a Florida corporation, to open and operate a Michiganbased franchise.2 8 The defendants fell behind in their franchise payments. 29 Burger King sued in federal district court in Florida for breach of contract and trademark infringement under the Trademark Act of 1946, popularly known as the Lanham Act.3 0 The defendants unsuccessfully challenged the Florida court's exercise of personal jurisdiction, 3 and Burger King ultimately prevailed on the merits of both claims.3 2 On appeal, defendants challenged only the exercise of jurisdiction over, and the judgment on the merits of, the state contract claim; they did not appeal jurisdiction or substance regarding the federal trademark claim.33 The Eleventh Circuit reversed, upholding defendants' claim of lack of personal jurisdiction. An appeal to the Supreme Court followed, and the Court reversed the Eleventh Circuit.34 Justice Brennan's opinion for the Supreme Court recapitulates prior doctrine in the area of jurisdiction, specifically the "minimum contacts" 26. See Lilly, JurisdictionOver Domestic and Alien Defendants, 69 Va. L. Rev. 85, 106-07 (1983) (discussing World-Wide Volkswagen). Professor Clermont has written that the Court's analysis breaks down into "power" and "reasonableness" components. Clermont, Restating TerritorialJurisdictionand Venue for State and FederalCourts, 66 Cornell L. Rev. 411, 413 (1981). Only if power exists does one go on to measure reasonableness. Id. at 423-25. Pennoyer v. Neff almost exclusively used a "power" rationale for jurisdiction, with little regard for the "reasonableness" factor. 95 US. 714 (1877). Thus, even in an enlightened era of due process analysis, the trappings of Pennoyer appear not to be discarded; Pennoyer simply has been embellished with extra precautions of fairness. The BurgerKing Corp. v. Rudzewicz decision may have affected this analysis, however. 471 US. 461 ( 1985 ). In BurgerKing. Justice Brennan wrote that "[reasonableness] considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required." Id. at 477 (emphasis added). 27. Burger King Corp. v. Rudzewicz, 471 US. 462, 466 ( 1985 ). 28. Id. at 464-67. 29. Id. at 468. 30. 15 U S.C. §§ 1051-1127 (1982 & Supp. IV 1986). 31. See Burger King Corp. v. Rudzewicz, 471 US. 462, 469 ( 1985 ); Burger King Corp. v. MacShara, 724 F.2d 1505, 1508 (11th Cir. 1984), rev'd, 471 US. 462 ( 1985 ). 32. Burger King Corp. v. Rudzewicz, 471 US. at 469; Burger King Corp. v. MacShara, 724 F.2d at 1508. 33. See Burger King Corp v. MacShara, 724 F.2d at 1508; see alsoBurgerKing Corp, 471 US. at 469-70 n.ll. The Eleventh Circuit mentioned in passing that the suit included a trademark claim, but did not comment further on the subject. See 724 F.2d at 1508. 34. 471 US. at 487. FORDHAM LAW REVIEW analysis initiated by International Shoe" and further developed in Shaffer v. Heitner3 6 and World-Wide Volkswagen.37 Ultimately, in Burger King the Court determined that the defendants did have "minimum contacts" with Florida and that the exercise ofjurisdiction over them did not violate due process.3 8 Despite its apparently orthodox approach, the opinion seems to extend prior doctrine by pointing to a choice of law provision in the franchise agreement as an element of "minimum contacts."3 9 Previously, the Court had held choice of law analysis irrelevant.4" The decision also discusses the reasonableness and fairness to defendants of the chosen forum.4 Prior to Burger King, the Court barely had acknowledged this notion.42 The most intriguing aspects of the case, however, are those that the 35. 326 U.S. 310 (1945). The author assumes that the reader is familiar with the major cases and will discuss them only as necessary to support the arguments presented in this Article. For an extended discussion of the case law, see Fullerton, supra note 4; Lilly, supra note 26. For a discussion of more recent cases, see Weinberg, The Helicopter Case and the Jurisprudenceof Jurisdiction,58 S. Cal. L. Rev. 913 ( 1985 ). 36. 433 US. 186 (1977). 37. 444 US. 286 (1980). 38. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 487 ( 1984 ). 39. See id. at 479. 40. See id. at 481-82. The Court in Burger King distinguished "choice-of-law analysis-which focuses on all elements of a transaction, and not simply on the defendant's conduct-," id. at 481, from a choice of law provision. Prior to BurgerKing, the Court shunted aside suggestions that a state's interest in applying its own law to a conflict should be considered in the minimum contacts analysis. See, e.g., Shaffer v. Heitner, 433 U.S. 186, 215-16 (1977) (although Delaware has an interest in outcome, choice of law does not demonstrate that forum is fair); Hanson v. Denckla, 357 US. 235, 254 (1958) (although Florida has substantial interest in the suit, choice of law factors are not determinative of personal jurisdiction over action). Furthermore, the Burger King Court's notion that the "contemplated future consequences" of a contract can serve as significant contacts, 471 U S. at 479, represents a new concept that may have interesting ramifications for personal jurisdiction. Choice of law clauses may undergo new scrutiny if they are to become virtual forum-selection clauses. A business may be willing to have a particular state's law apply but be unwilling to litigate there. 41. Burger King Corp. v. Rudzewicz, 471 U.S. at 476-78 (after minimum contacts are established, "fair play and substantial justice" are considered). 42. In World-Wide Volkswagen Corp. v. Woodson, 444 US. 286 (1980), the Court reaffirmed that due process analysis involved "minimum contacts" and the reasonableness of subjecting the defendant to the authority of the particular forum. Id. at 291-94. Justice Brennan's dissent criticized the majority for deemphasizing "fairness" in favor of "contacts." See id. at 300 (Brennan, J., dissenting); see also Clermont, supra note 26, at 430-58; supra notes 21-26 and accompanying text. By contrast, the Burger King Court discussed the reasonableness and fairness to the defendants. See 471 US. at 478-82. Of course, in Burger King, unlike in World-Wide Volkswagen, the Court had already determined that sufficient contacts existed. See id. at 478-80. The Burger King Court also indicated that, in rare cases, reasonableness of jurisdiction could be established with a lesser showing of contacts than is usually required. See id. at 477 (citing Keeton v. Hustler Magazine, 465 US. 770, 780 ( 1984 ); Calder v. Jones, 465 US. 783, 788-89 ( 1984 ); McGee v. International Life Ins. Co., 355 U.S. 220, 223-24 (1957)). Much the same attitude existed in the Court's opinion in Keeton v. Hustler Magazine, 465 US. 770 ( 1984 ), a diversity case rendered during the previous term. See id. at 780-81. 1987] Court did not discuss. First, the Court found Florida's long-arm statute determinative of the jurisdiction of the federal court without discussing any federal statute or rule to support this finding.4 3 Much of the opinion seems to treat the case as if it were brought in a state court. The Court mentioned, for example, that defendants entered "special appearances" without commenting on the fact that no such procedure exists in federal court.' Second, and more troubling, is the treatment of the federal claim. Because the defendants had chosen not to contest personal jurisdiction or appeal the judgment against them on the trademark claim, the Court barely mentioned that Burger King's complaint also included a trademark claim4 5 that invoked federal question jurisdiction. Interestingly, the Court indicated in a footnote that Florida law also applied to determine jurisdiction under the federal question claim." The Court did not discuss why it would use state long-arm statutes and fourteenth amendment standards aimed at state governmental conduct to analyze jurisdiction for a federal question claim. Finally, the defendants' failure to contest jurisdiction for the trademark claim raises the issue of whether a defendant can consent to jurisdiction regarding a federal claim and contest jurisdiction regarding a related state law diversity claim in the same case. Similar problems have arisen in other contexts.47 The Court's failure to delve into the federal aspects of the Burger King case illustrates the failure of federal courts to address important federal interests when faced with a personal jurisdiction question, including the rights of the litigants to have the federal claim litigated in an appropriate forum and any interest expressed in the federal statute that gives rise to the claim for having that claim litigated in a particular forum. Thus, there is a significant gap in this area of the law. RULE 4 AND FEDERAL JURISDICTION The appropriate due process standard emanates from the statutory and constitutional authority under which a federal court asserts personal jurisdiction.4 8 There is no general federal jurisdiction statute comparable to general state long-arm statutes. Amenability and service of process issues in federal court generally fall under the auspices of Rule 4 of the Federal Rules of Civil Procedure.4 9 Most of Rule 4 concerns proper methods of serving process on defendants to provide notice of the action (manner of exercising jurisdiction), rather than when the defendant may be subject to jurisdiction (amenability to the exercise of jurisdiction).50 The methods of effecting service are 48. "Arguably, federal courts do not require enabling legislation to assume adjudicatory jurisdiction under federal standards, even in diversity litigation." von Mehren & Trautman, Jurisdictionto Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1123 n.6 (1966) (noting Second Circuit so held in Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir. 1960), but subsequently reversed itself in Arrowsmith v. United Press Int'l, 320 F.2d 219 (2d Cir. 1963)). 49. See Fed. R. Civ. P. 4. 50. See id. Amenability problems in federal court arise primarily in diversity cases because the general federal venue statute limits claims not based solely on diversity to the districts where all defendants reside or where the claim arose, except where another federal statute provides otherwise. 28 U S.C. § 1391(a) (1982). See Foster, Long Arm Jurisdiction in FederalCourts, 1969 Wis. L. Rev. 9, 28-29 (1969). Statutes with their own venue provisions most often allow venue where the defendant lives, such as the antitrust venue provision, 15 US.C. § 22 (1982), or where the claim arose, or both. See, e.g., Securities Act of 1933, 15 U S.C. § 77v (1982); Futures Trading Act, 7 US.C. § 13a-2(4) (1982); Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1719 (1982); Employee Retirement Income Security Act, 29 U.S.C. § 1132(e)(2) (1982); Civil Rights Act, 42 US.C. § 2000e-5(f)(3) (1982). The Federal Interpleader Act, which provides for both nationwide service of process and venue where any claimant lives, constitutes a notable exception. See 28 US.C. § 2361 (1982) (process); 28 U.S.C. § 1397 (1982) (venue). For a further discussion of statutes with nationwide service of process, see infra notes 68-70 and accompanying text. If the claim arose in the forum district or an act constituting a violation occurred there, in most cases the defendant will have sufficient contacts with that district for specific jurisdiction to exist under the InternationalShoe standard. See, e.g., Violet v. Picillo, 613 F. Supp. 1563, 1573-79 (D.R.I. 1985). One would also expect that an individual defendant would be subject to jurisdiction where he or she resides. For venue purposes, corporations may be sued wherever they do business. See 28 US.C. § 1391(c) (1982). Although one would also expect them to be subject to jurisdiction in most such districts, it is certainly possible, in theory, that "doing business" for venue purposes would not be sufficient for jurisdictional purposes. The cases, however, generally find either the standards to be the same or that the venue standard is a higher one. See cases cited infra note 67. This probably occurs because so many state statutes are construed to go to the limits of due process; if jurisdiction is constitutionally unfair, then a court would be unlikely to find that venue exists there, or even to reach the question. And even where the state statute falls short of due process limits, it is unlikely that a court would determine the venue question before deciding the jurisdictional issue. In most federal question cases, a defendant probably would forego a jurisdictional objection, believing it to be pointless. Nevertheless, amenability problems have arisen in a number of federal question cases. See, e.g., Bandai America, Inc. v. Bally Midway Mfg., 775 F.2d 70, 75 (3d Cir. 1985), cert. denied, 106 S. Ct. 1265 (1986) (in copyright and antitrust action, court held that defendant's relation to forum state is important to personal jurisdiction); Catrone v. Ogden Suffolk Downs, Inc., 647 F. Supp. 850, 855-56 (D. found primarily in Rule 4(c)(2)(C) S' and 4(d). 2 Rule 4(f) limits the territorial reach of process to "the state in which the district court is held."5 3 It does provide for service outside the state, but only "when authorized by a statute of the United States or by these rules."' Rule 4(e) permits service upon a party not an inhabitant of or found within the state "under the circumstances and in the manner prescribed" by a federal statute or a statute of the state in which the district court sits.55 Some federal statutes contain their own nationwide service of process sections.56 If the federal statute providing the right of action does not provide for nationwide service, the parties of the federal action are limited in their ability to serve process by the "circumstances" set forth in the state statute or some other standard of amenability.5 7 This raises the Mass. 1986) (discussing amenability problems under both the Sherman Antitrust Act and the federal Civil Rights Act); Hughes v. Lister Diesels, Inc., 642 F. Supp. 233 (F.D. La. 1986) (discussing amenability under the Outer Contintental Shelf Lands Act). Moreover, variations on the Burger King situation involving a defendant who clearly is subject to jurisdiction regarding one claim but challenges it as to another are not infrequent. See infra notes 234-53 and accompanying text. 51. Fed. R. Civ. P. 4(c)(2)(C). Rule 4(c)(2)(C) provides that a summons and complaint may be served pursuant to the law of the state in which the district court sits, or by mail. See id. 52. Fed. R. Civ. P. 4(d). Rule 4(d) describes to whom, where, and by what manner service can be effected upon different classes of defendants. See id 53. Fed. R. Civ. P. 4(f). 54. Id 55. Fed. R. Civ. P. 4(e). Arguably, the Rule speaks only to methods of service and not to standards of amenability to jurisdiction. However, the language of the rule indicates otherwise. Rule 4(c)(2)(C)(i) allows a federal district court to use the methods of service of the state in which it sits. Fed. R. Civ. P. 4(c)(2)(C)(i). Yet Rule 4(e) also incorporates state statutes for service of non-resident defendants. Fed. R. Civ. P. 4(e). Logically, Rule 4(e) is intended to invoke the state's amenability standards, particularly in view of its language that service may be made "under the circumstances and in the manner" that the state statute provides. See 4 C. Wright & A. Miller, Federal Practice and Procedure, § 1075, at 494-96 (1987); see also Fed. R. Civ. P. 4(e). In addition, there is no reason to assume that Rule 4(c)(2)(C), or its predecessor Rule 4(d)(7), or Rule 4(d) were intended to give additional power to the courts to make up their own federal statutory amenability standards. See Fed. R. Civ. P. 4(c)(2)(C), 4(d); Fed. R. Civ. P. 4(d)(7), repealed by Pub. L. No. 97-462 § 2(3)(B), 96 Stat. 2528 (1983). Indeed, Rules 4(c) and 4(d) do not say anything about amenability. Fed. R. Civ. P. 4(c), 4(d). Strictly speaking, this may not limit the amenability reach of a district court. In a practical sense, however, arguing about whether that limitation goes to "amenability" or "service" is pointless if one is not empowered to serve process. In either case, the person over whom jurisdiction is sought properly cannot be made a party to the action. Wright and Miller note that, although Rule 4(d)(3) arguably permits a separate amenability standard, most courts have declined to read that into the rule. See 4 C. Wright & A. Miller, supra, § 1075, at 487-88. 56. See, eg., Securities Exchange Act of 1934, 15 US.C. § 78aa (1982); Federal Interpleader Act, 28 U S.C. § 2361 (1982); Employee Retirement Income Security Act, 29 U.S.C. § 1132(e) (1982). Rule 4(e) does not conflict with these statutes because it allows service on out-of-state inhabitants "under the circumstanes ... prescribed" by a federal statute. Fed. R. Civ. P. 4(e). 57. See Fed. R. Civ. P. 4(e). If the federal statute sets forth only the circumstances under which service can be made, the plaintiff may use any method of service provided in cause a complaint represents only allegations of wrongdoing, this threshold should adequately protect the more or less fixed interests of privacy and life management involved. One may ask why a threshold approach rather than a pure balancing approach is being proposed. A simple answer would be that it conforms loosely to what actually is being done. There are, however, more compelling reasons for the choice. A pure balancing approach can undervalue the defendant's interests in a particular case, or even overvalue it in another. The privacy-like interest ascribed here to the defendant can be thought of as a floor on defendant's rights, even if no "inconvenience" or other objective factors seem to exist in a particular case. By forcing the government to establish a certain threshold interest, the proposed test recognizes the subjective factors that surround the so-called "right to be left alone." To this author, pure balancing tests appear somewhat ad-hoc in administration. A threshold test provides at least some degree of uniformity. 80 Considering only state court jurisdiction, the strongest state interest lies in enforcing its own regulatory schemes-based either on statutory or common law-against out-of-state transgressors.""' The Supreme Court explicity has stated that this interest lacks relevance in jurisdictional analysis. 8 2 It is difficult to fathom why the Court insists on divorcing the choice of law question'83 from the jurisdiction question since typical jurisdictional due process analysis already considers state's interests in general, of which the state's interest in applying its own laws is the strongest. By separating the two analyses, the Court ignores the state's primary reason for passing long-arm statutes.I 4 require more stringent scrutiny than the free speech interests found in cases like Central Hudson. 180. Admittedly, however, a fair degree of subjectivity enters into the decision of what constitutes a governmental interest important enough to meet the threshold. 181. As Professor Silberman noted regarding the Supreme Court's decision in Hanson v. Denckla, "two different state courts, one in Delaware and one in Florida, adjudicated an issue concerning the disposition of S400,000. Each court applied the law of its own state" against the out-of-state transgressor, resulting in victory for the Florida plaintiffs in Florida and defeat in Delaware since the Delaware court applied its own law to the outof-state Florida party. Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U. L. Rev. 33, 83 (1978) (discussing Hanson v. Denckla, 357 US. 235 (1958)). The plaintiffs, then, are more concerned about what law applies than where the suit is brought. Cf. Keeton v. Hustler Magazine, 465 US. 770, 776 ( 1984 ) ("New Hampshire may rightly employ its libel laws to discourage the deception of its citizens."); Mullane v. Central Hanover Bank &Trust Co., 339 US. 306, 313 (1950) (citing State's interest in its scheme of regulating common trust funds to uphold jurisdiction over absent beneficiaries). 182. See Shaffer v. Heitner, 433 US. 186, 215-16 (1977); Hanson v. Denckla, 357 US. 235, 254 (1958). 183. The proposed test favors use of choice of law considerations in jurisdictional analysis but will not be satisfied by the mere assertion of a jurisdictional interest by a state. Rather, in the jurisdictional analysis, courts must examine the legitimacy of the state's interest in regulating the underlying conduct at issue. 184. See Shaffer v. Heitner, 433 US. 186, 224-26 (1977) (Brennan, J.c,oncurring in part and dissenting in part). Professor Silberman has argued rather persuasively that a state should be able to assert jurisdiction over a defendant whenever it may apply its own law to the transaction. Silberman, supra note 181, at 79-90 (1978). Until the Supreme Use of choice of law analysis in jurisdictional analysis, however, would involve certain complications. Presently there are few constitutional limitations on a state's choice of which law to apply. 85 The proposed constitutional test for jurisdiction, however, examines the legitimacy of the state's choice of its own law at an early stage. In some cases, this test will require a court to make choice of law decisions that were previously avoidable, as when the law in all relevant states is the same. In such cases, courts should examine whether the forum state could assert its own law under the present constitutional standards.1 16 This decreases the value of that interest due to the minimal review of such decisions. In addition, if choice of law will not affect the rule of decision in the underlying case, its weight in the jurisdictional analysis is lessened. In a complex choice of law problem, the weight ascribed to the state's choice of law interest also should be reduced correspondingly. The Burger King decision provides some hope that the Court will move towards weighing choice of law interests in the future. The Court specifically rejected the idea that Hanson v. Denckla made choice of law considerations irrelevant to jurisdictional analysis: The Court in Hanson and subsequent cases has emphasized that choice-of-law analysis-whichfocuses on all elements of a transaction, and not simply on the defendant's conduct-is distinct from minimum-contacts jurisdictional analysis-which focuses at the threshold solely on the defendant's purposeful connection to the forum. Nothing in our cases, however, suggests that a choice-of-law provision should be ignored in considering whether a defendant has 'purposefully invoked the benefits and protections of a State's laws' for jurisdictional purposes.'8 7 It is not a great leap from this statement, concurred in by six of the nine justices, to the proposition that a state's interest in applying its own law is generally a relevant jurisdictional interest. 8 Regardless, under the Court makes a serious effort to regulate choice of law under the fourteenth amendment, I prefer simply to accord it weight as one of the state's interests balanced against the defendant's liberty interest. 185. See Allstate Ins. Co. v. Hague, 449 US. 302, 312-13 (1981) (state's choice of law must not be "arbitrary nor fundamentally unfair"); see generally Weinberg, Choice of Law and Minimal Scrutiny, 49 U. Chi. L. Rev. 440 (1982). In the same term as Burger King, the Court struck down a state's use of its own law in Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 822 ( 1985 ) (state's application of its law to every claim was "arbitrary and unfair"). Perhaps the Shutts decision signals more diligent supervision by the Court in this area. Shutts, however, apparently approved of the minimal scrutiny principIe of Allstate. See 472 U.S. at 818-19. 186. This analysis will not always be easy. In some cases, more than one state's law can apply. In such cases, courts should focus on whether the forum state could apply its law to this particular defendant, leaving other choice of law problems for a different analysis. 187. 471 U.S. 462, 481-82 ( 1985 ) (emphasis in original) (citation omitted). 188. For evidence of further movement by courts towards considering choice of law interests, see Asahi Metal Indus. Co. v. Superior Court, 39 Cal. 3d 35, 53, 702 P.2d 543, 554, 216 Cal. Rptr. 385, 395 ( 1985 ) (discussing California's interest in ensuring that for1987] proposed test, choice of law is only one of the governmental interests present in state court cases. 89 Although it is a very important factor, its recognition is not decisive in meeting the threshold. Protecting state residents by affording them a convenient forum in which to litigate constitutes the primary remaining state interest." ° Presently, courts recognize this interest only after sufficient "contacts" have been established, 9 ' and, admittedly, this interest is relatively small. Related to this interest is one of preventing out-of-state actors from committing unlawful acts, as defined by any state or federal law, within the state. Where the plaintiff is a state resident, both interests are advanced. Even when the plaintiff is not a state resident, a convenient forum protects local witnesses and also provides a forum less biased against the defendant. Unless coupled with an interest in applying the state's own law, however, providing a generally convenient forum seldom will prove 192 to be a substantial interest. Under the proposed test, once the threshold is surmounted, a balancing test is applied. Courts should examine a number of factors. Inconvenience to the defendant and to his witnesses should be weighed. 9 3 eign manufacturers comply with the state's safety standards), rev'd, 107 S. Ct. 1026 (1987). Though it reversed the lower court, the Supreme Court discussed the possible interests of California, concluding that they were minimal. See Asahi Metal Indus. Co. v. Superior Court, 107 S. Ct. 1026, 1034 (1987); cf. Keeton v. Hustler Magazine, 465 US. at 776 (describing states' interest as a "surrogate" for other jurisdictional factors). 189. Choice of law is not always the motivating force behind a plaintiff's choice of forum. In the first place, many states apply the same set of legal principles to a variety of cases. Moreover, other concerns are often more compelling. For example, in WorldWide Volkswagen Corp. v. Woodson, the plaintiff's motive in selecting the forum may have been the reputation of the local court to award large verdicts. 190. See World-Wide Volkswagen Corp. v. Woodson, 444 US. 286, 292 (1980); McGee v. International Life Ins. Co., 355 US. 220, 223 (1957). 191. See Burger King Corp. v. Rudzewicz, 471 US. 462, 481-82 ( 1985 ). 192. Some indication of this is found in Mullane v. Central Hanover Bank & Trust Co., 339 US. 306 (1950). In Mullane, the Supreme Court determined, among other things, that the New York courts had jurisdiction over out-of-state trust beneficiaries. In doing so, the Court gave some weight to the interest of New York in settling the accounts of common trust funds located in New York-thus protecting the interests of the local institutions including the interest in providing a convenient forum in which to litigate. Id. at 313. Providing a local forum in which to litigate, however, also was an integral part of the legislative scheme which sought to promote New York institutions as trustees of common trust funds. Id. at 311-13. Thus, the local forum interests were combined with an interest in the state in upholding its legislative scheme. 193. Arguably, witness inconvenience comprises a greaterfactor. Most defendants are covered by insurance, which lessens their inconvenience costs. Defendants tend to be deposed where they live or are employed, see, e.g., Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166, 171 (S.D.N.Y. 1985) (citing this as the general rule, though declining to follow it); Pinkham v. Paul, 91 F.R.D. 613, 615 (D. Me. 1981) (following this rule and extending it to include a defendant asserting a compulsory counterclaim as well as a party joined in a compulsory counterclaim, since both should be considered to be in the same position as ordinary defendants); Buryan v. Max Factor & Because the degree of inconvenience varies widely from case to case, 194 the balancing portion of the test becomes a more appropriate place to consider it than at the threshold level. The plaintiff's convenience factors also should comprise an element of the balancing test,1g9 especially if the alternative forum is distant from the one plaintiff has chosen. 96 Although not relevant to federal cases, the interstate interests cited in Burger King and World-Wide Volkswagen also should be weighed.' 97 Application of the threshold-plus-balancing test using only presently accepted governmental interests, which exclude choice of law, yields results strikingly similar to those reached under minimum contacts analysis, because the contacts analysis-and the purposeful availment segment of this analysis in particular-incorporates the major state interests. Specifically, a defendant that "purposefully avails" itself of the forum state has invoked the state's interest in deterring unlawful acts by such out-ofstate residents. Since, however, the major state interests are seen from the perspective of their impact on the defendant's interests, in a close case the remaining state interests often become relatively small, and the cases result in more defendant-oriented decisions like those following in the wake of Shaffer and World-Wide Volkswagen. 9 s If choice of law considerations were not excluded, then the results in some cases would Co., 41 F.R.D. 330, 331-32 (S.D.N.Y. 1967) (applying this rule since requiring defendants to leave their place of residence or employment "would necessarily be oppressive and annoying" and would seriously hamper their ability to operate their businesses); Kurt M. Jachmann Co. v. Hartley, Cooper & Co., 16 F.R.D. 565, 565 (S.D.N.Y. 1954) (citing the rule as "[t]he proper place for taking the oral deposition of indivudual defendants is their residence, or of corporate defendants, their principal place of business"), and will only be inconvenienced greatly if the case goes to trial. Even then, their expenses may be paid for. The insurance company often undertakes to pay the expenses, or the court may order it to do so. See, e.g., Philadelphia National Bank v. Dow Chemical Co., 106 F.R.D. 342, 345 (E.D. Pa. 1984). In contrast, reimbursement for witness expenses under the federal statute is meager. See 28 U.S.C. § 1821 (1982) (generally gives thirty dollars per day and some travel expenses). 194. Determining witness inconvenience requires courts to analyze the importance of the witness, the ability of the parties to use the witness' deposition at trial, the willingness of the witness to appear, the ability of the court to subpoena the witness, the actual burden on the witness to appear, and so forth. 195. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 ( 1985 ) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)); Keeton v. Hustler Magazine, 465 U.S. 770, 780 ( 1984 ). 196. See McGee v. International Life Ins. Co., 355 US. 220, 223 (1957) (discussing the value of plaintiff's home forum in the context of forum non conveniens); Koster v. Lumberman's Mutual Ins. Co., 330 US. 518, 524 (1947) (same). 197. These include " 'the interstate judicial system's interest in obtaining the most efficient resolution of controversies', and the 'shared interest of the several States in furthering fundamental substantive social policies.'" Burger King, 471 US. at 477 (quoting World-Wide Volkswagen, 444 US. at 292). In a federal question case, the interstatejudicial system has little contact with the matter because such cases usually are brought in federal court. The social policies being furthered are those federally-, not state-, mandated and again are tried primarily in federal court. 198. See Asahi Metal Indus. Co. v. Superior Court, 107 S. Ct. 1026, 1031-33 (1987); Heliocopteros Nacionales de Colombia, S.A. v. Hall, 466 US. 408, 415-16 ( 1984 ); Kulko v. Superior Court, 436 US. 84, 94 (1978). 1987] have been different. 99 As discussed above, the proposed test assumes that the government must demonstrate an important interest in asserting jurisdiction over the defendant. Because it forces early and more frequent decisions about choice of law, this analysis also will force the courts to reflect on the appropriate limits on a state's choice of its own law. 2" APPLICATION OF THE PROPOSED TEST IN FEDERAL CASES FederalQuestion Cases Although the proposed analysis would have some effect on jurisdiction in state courts, it would effectuate its most far-reaching changes in federal cases. This section will examine the proposed test in federal questions cases. Roughly speaking, these cases can be divided into two categories for the purpose of jurisdictional analysis: federal questions where a special long-arm statute (ordinarily providing for nationwide service of process) exists and federal questions where no such special statute exists. The first category-nationwide service-does not raise the preliminary statutory questions that were discussed in Part II above.2 01 The language of Rule 4(e) allowing service "under the circumstances . . . prescribed by the [federal] statute . . . " governs these cases. 202 As a rule, in cases where the statute provides for nationwide service, the courts do not spend much time on a due process discussion. This appears to result from an application of a "minimum contacts" analysis to such cases. Once the "contacts" portion of the test is satisfied, jurisdiction is said to exist.2 °3 In nationwide service cases, the forum against 199. For example, in Shaffer, the state of Delaware had a manifest interest in regulating the corporate activities of officials of Delaware corporations. If such considerations were taken into account, Delaware would have had jurisdiction over the defendants. The Court implicitly acknowledged this interest but said that Delaware had to assert it affirmatively, which it later did. Shaffer v. Heitner, 433 US. 186, 214-15 (1977); see 6 Del. Code Ann. tit. 10, § 3114 (Supp. 1986); see also Armstrong v. Pomerance, 423 A.2d 174, 179 (Del. 1980) (upholding the Delaware statute). Another possible difference resulting from the balancing of state interests, including choice of law, would arise in large states. At present, there is no due process impediment to dragging a defendant a large distance across a state like California, Texas or Alaska, which may prove far more inconvenient than dragging a defendant a short distance across state lines. If the defendant's due process right is not linked to being dragged out of state, but simply related to being forced to litigate in an unanticipated, faraway forum, in theory, one's due process rights could be violated by a purely intrastate suit. The state's interests in apportioning rights between its own citizens and in organizing its own judicial system, however, should outweigh the individual's interest in all but the rarest of cases. 200. The Supreme Court has placed minimal constitutional limits on choice of law thus far. See supra note 185 and accompanying text. 201. See supra notes 48-120 and accompanying text. 202. Fed. R. Civ. P. 4. 203. For example, once the Court in Burger King Corp. v. Rudzewicz found sufficient contacts, it disposed of defendant's inconvenience argument by suggesting that a defendwhich contacts are measured is usually the United States. 0" Thus, virtually any domestic defendant will have minimum contacts with the country as a whole. The cases discussing due process in this context, therefore, often involve alien defendants, and courts measure the alien's contacts with the country as a whole.20 5 Although Burger King and Asahi Metal IndustrialCo. v. Superior Court2" 6 indicate that, even where contacts exist, courts should address fairness considerations, 20 7 they seldom do so, especially in nationwide service cases.208 Indeed, at least one case and one commentator have suggested that, in a nationwide service case, once contacts with the United States are found, no further analysis ant who was severely inconvenienced by plaintiff's choice of forum could ask for a change of venue. 471 U.S. 462, 477 ( 1985 ). Arguably, once it is clear that defendant is subject to jurisdiction in any federal court the rest is just a matter of venue. See FTC v. Jim Walter Corp., 651 F.2d 251, 257 (5th Cir. Unit A July 1981) (once defendant has minimum contacts with the United States, Congress has discretion over where the case should be litigated). Thus, it appears that the analysis described here "constitutionalizes venue." See Barrett, Venue and Service ofProcess in the FederalCourts-Suggestionsfor Reform, 7 Vand. L. Rev. 608, 628-30 (1954) (suggesting nationwide service along with liberalized venue for all federal cases). This argument is not without force, but there is no reason to assume that the Constitution places no restriction on Congress' venue choices. Whether one calls it "venue" or "jurisdiction," a defendant still has a due process liberty interest at stake. See supra note 170 and accompanying text. In diversity cases, where fourteenth amendment jurisprudence currently is used to safeguard due process, the choice of forum also determines choice of law, including the forum state's choice of law rules. See Van Dusen v. Barrack, 376 U.S. 612, 638-39 (1964) (transfer of venue does not affect choice of law); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). The same situation exists in federal question cases that include pendent claims, ancillary claims, or both, which the court will also decide using state law. See 19 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4515, at 276 & n. 11 (1982). Thus, imparting venue with a constitutional dimension may impact profoundly on the rule of decision used in the underlying case. Moreover, as Professor Fullerton has pointed out, improper venue is not a ground for collateral attack, nor is transfer available as a matter of right. Therefore, constitutional restriction is needed. Fullerton, supra note 4, at 35-38; see also Clermont, supra note 26, at 430-32, 434-37. 204. See, e.g., Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1315-16 (9th Cir. 1985) ("[w]here a federal statute ... confers nationwide service of process, 'the question becomes whether the party has sufficient contacts with the United States' ") (quoting Nelson v. Quimby Island Reclamation Dist. Facilities Corp., 491 F. Supp. 1364, 1378 (N.D. Cal. 1980)); FTC v. Jim Walter Corp., 651 F.2d 251, 256 (5th Cir. Unit A July 1981); Green, supra note 4, at 469-70 (when minimum contacts exist with the relevant sovereign, due process no longer protects a defendant from distant litigation because the location of permissible venue is a matter of sovereign prerogative). 205. See supra note 102 and accompanying text; for a general discussion, see supra notes 75-102 and accompanying text. 206. 107 S. Ct. 1026 (1987). 207. See Asahi Metal Indus. v. Superior Court, 107 S. Ct. 1026, 1033-34 (1987) (although the Court had already found that defendant had insufficient contacts, it analyzed the contacts to determine reasonableness); Burger King Corp. v. Rudzewicz, 471 US. 462, 476-78 ( 1985 ) (even though contacts are established, Court looks at other factors to determine if jurisdiction would be unfair regardless of the contacts). 208. See, e.g., FTC v. Jim Walter Corp., 651 F.2d 251, 256-57 (5th Cir. Unit A July 1981); Fitzsimmons v. Barton, 589 F.2d 330, 333 (7th Cir. 1979); Clement v. Pehar, 575 F. Supp. 436, 438-39 (N.D. Ga. 1983). 1987] is necessary.2 0 9 This provides no protection for domestic defendants, however, and possibly inadequate protection for aliens. Moreover, of the other considerations set out in World-Wide Volkswagen and Burger King-"the 'forum State's interest in adjudicating the dispute,' 'the plaintiff's interest in obtaining convenient and effective relief,' 'the interstate judicial system's interest in obtaining the most efficient resolution of controversies,' and the 'shared interest of the several States in furthering fundamental substantive social policies' "2 1 0 -only one is not tied to a state-based jurisdictional system. Thus, these considerations serve little purpose in a nationwide service case (or in any other federal case for that matter). But if defendant has a real due process interest, the mere assertion of power by Congress should not end the discussion. At the very least, a court should determine whether there is good reason to force the defendant to come to this particulardistrict court to litigate. This is the point of the proposed analysis. Rather than delegating the constitutional task to a judge's sense of fairness, 2 11 the test attempts to impose some order and consistency on the decisions. After all, the defendant's liberty interest is one partly tied to a location, namely the home. Assuming that the right to be left alone reaches, at most, to the borders of the home state,2 12 it is not rational to assume that a defendant reasonably expects to be sued in any federal court on a federal claim. Many defendants will not make the distinction between conduct that violates a federal law and that which violates state law; some will violate both. Moreover, most people do not understand the notions of federalism and a unified federal court system. They see the country in terms of state boundaries. Some historical logic exists, therefore, to using state boundaries as a starting point for a defendant's expectations, even in a federal question case.2 13 Thus, the proposed analysis forces the court to look for an important interest in forcing defendant into that particular district, but the analysis of governmental interests occurs at the threshold level, where it can affect the results, instead of being considered only after the court finds suf209. See Stafford v. Briggs, 444 US. 527, 553-54 (1980) (Stewart, J., dissenting); see also Abrams, supranote 4, at 8 (quoting Justice Stewart's dissenting opinion in Stafford v. Briggs). 210. Burger King Corp. v. Rudzewicz, 471 US. 462, 477 ( 1985 ) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 US. 286, 292 (1980)). 211. Professor Fullerton uses fairness as a primary factor in her balancing test for analyzing the legitimacy of nationwide service. Fullerton, supranote 4, at 38-41, 85. She states that governmental interests have a place in the analysis. Id. at 56-60, 85. See also Oxford First Corp. v. PNC Liquidating Corp., 372 F. Supp. 191, 203-05 (E.D. Pa. 1974) (court applies fairness test to determine appropriateness of nationwide service of process). The threshold-plus-balancing test, however, gives more precise protection to the presumed privacy-like interest of the defendant, while giving appropriate weight to other factors. 212. See supra text accompanying notes 164-67. 213. See Fullerton, supra note 4, at 44-45. ficient contacts. This allows what might be a tenuous case for jurisdiction in state court terms to become a constitutionally permissible one. Federal question cases, in contrast with diversity cases, theoretically involve no choice of law issue.2 14 The fact that nationwide service is part of a larger regulatory scheme, however, creates a governmental interest. For example, with securities regulation, Congress intended to provide a broad remedial statute.215 By making it easier for private litigants to sue, Congress enhanced the deterrent effect of the law and the rights of disclosure set out in the securities laws. The federal interest, however, does not always necessarily override defendant's interests. Courts still must consider the countervailing individual interests of reasonable control over the effects of one's conduct so that unexpected litigation consequences, such as a very inconvenient forum, do not result. When faced with the more substantial federal interest in the statutory scheme, however, the individual's interest ordinarily will lose. Things grow a bit more complicated when dealing with federal question cases where no nationwide service statute exists. In those cases, state long-arm statutes provide the statutory basis for jurisdiction, and, as noted above, specific statutory limits must be respected.21 6 Once those limits have been complied with, however, the analysis proceeds to the constitutional test, which incorporates the same concepts for nationwide service expressed above. On the governmental interest side, however, one major piece will be missing: jurisdiction no longer forms a part of the larger statutory scheme. Once the jurisdictional interest is removed, the remaining federal interests shrink in importance, though they never disappear.2 17 Individual statutory schemes, however, may contain some evidence of the need for a broader jurisdictional standard, even though they contain no jurisdictional section. For example, in the civil rights statutes, Congress clearly intended that the statutory scheme provide a relatively accessible remedy,2 18 suggesting that courts allow jurisdiction where it 214. A choice of law issue could arise in a federal question case involving a foreign defendant. 215. See Carpenter v. Hall, 352 F. Supp. 806, 809-10 (S.D. Tex. 1972) (noting congressional purpose of providing a convenient forum through the nationwide service and venue provisions of the 1933 and 1934 securities acts); J.I. Case Co. v. Borak, 377 U.S. 426, 43132 (1964) (discussing § 14(a) of the Securities Exchange Act of 1934, governing proxies, codified at 15 U.S.C. § 78n(a) (1982)); Kane v. Central Am. Mining & Oil, Inc., 235 F. Supp. 559, 565 (S.D.N.Y. 1964) (noting congressional purpose of providing an accessible forum). 216. See supra notes 57, 118 and accompanying text. 217. Because the interest must relate to having the litigation brought in a particular federal court, rather than in federal court in general, the overall statutory scheme automatically does not provide a jurisdictional interest in such cases. 218. In McNeese v. Board of Education, 373 US. 668 (1963), the Court stated that: [t]he purposes [of Section 1983] were severalfold-to override certain kinds of state laws, to provide a remedy where state law was inadequate, to provide a 1987] would otherwise fail.2 19 Courts must exercise caution in adopting such a lenient attitude toward jurisdiction, however, because if Congress had considered the interest in ease of litigation very large, it probably would have provided for nationwide service in the statute. In addition, federal jurisdictional interests often relate to substantive regulatory interests.22 ° Those substantive regulatory interests bearing on the jurisdictional question should be considered to determine if that particular federal court, not federal courts in general, have jurisdiction. The federal venue statutes22 1 express a general interest in having the litigation brought in particular districts. Venue alone, however, does not translate into a strong federal interest in asserting jurisdiction. Absent some strong showing of a connection between federal venue under Section 139 1,222 the general venue statute, and a federal statutory scheme, this interest is small. A number of federal statutes contain specific venue provisions providing that venue is proper in almost every instance, but many of these statutes do not contain separate service of process provisions.223 Under the proposed test, the federal interest in jurisdiction expressed by these special venue statutes carries greater weight when the regulatory scheme does not contain a provision for nationwide service. By incorporating state long-arm statutes through Rule 4 when the federal statute does not provide for jurisdiction, Congress arguably has included as federal interests the concerns of the state in which the district court sits, as well as the more general concerns of the substantive statute at issue. Thus, when an action constituting a violation of the federal statute takes place in the district, an important interest in adjudicating the suit there exists. Assuming that the governmental interest has reached the intermediate threshold, the court then can consider whatever interests defendant has, such as convenience. The government's interests would then be balanced against the totality of defendant's interests. On balance, the results using the modified important-governmental-interest-plus-balancing test should federal remedy where the state remedy, though adequate in theory, was not available in practice, and to provide a remedy in the federal courts supplementary to any remedy any State might have. Id. at 671-72 (quoting Monroe v. Pape, 365 US. 167, 174 (1961)); see also United States v. City of Philadelphia, 644 F.2d 187, 197-98 (3d Cir. 1980). 219. A state court analogy can be found in Calder v. Jones, 465 US. 783 ( 1984 ), where the Court, citing Keeton v. Hustler Magazine, stated that the plaintiff's contacts with the forum, though not sufficient or even necessary, could justify a finding ofjurisdiction when it might otherwise be improper. IaMat 788 (citing Keeton v. Hustler Magazine, 465 US. 770, 780-81 ( 1984 )). 220. See supra text accompanying notes 214-16. 221. 28 US.C. §§ 1391-1407 (1982). 222. 28 US.C. § 1392 (1982). 223. See 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3825, at 252 (1986). Most federal statutes that provide for venue allow it where the defendant resides or where some act constituting a violation of the statute takes place. See id. Under the test set out here, there should be no problem upholding jurisdiction in those districts. at least resemble those presently achieved.224 B. At first glance, Justice Powell's Bauxite opinion seems to imply that federal interests225 play a very small role in diversity cases. To some degree this is true; the main purpose of diversity jurisdiction is to provide a neutral forum for an out-of-state litigant in an otherwise ordinary state court case.22 6 Simply because a plaintiff otherwise would be forced to bring suit in the defendant's home state does not give weight to arguments that a federal court should assert jurisdiction in a diversity case where a state could not. Though such jurisdiction would prevent bias to the plaintiff,2 27 local bias against the plaintiff is overcome adequately by the availability of federal court jurisdiction in the defendant's home state. Thus, the federal government's interest is very tenuous, if it exists at all. For the federal government to have a significant jurisdictional interest in the location of a trial, diversity jurisdiction must be viewed as intending to protect an out-of-state defendant from local state bias while simultaneously giving the plaintiff the right to litigate in his or her home state. Moreover, the right being litigated is a creation of state, not federal, law. A federal court, out of simple comity concerns, appropriately can defer to the local state court's determination of the importance of protecting those rights. This suggests that whatever interests suffice for a 224. If defendant is an alien, the proposed test could support the results achieved by the "aggregate contacts" tests-at least in federal question cases. The greatest liberty deprivation for an alien is to litigate in an American court. Further, the great leeway traditionally afforded the federal government in regulating the conduct of aliens doing business with Americans, see Mathews v. Diaz, 426 U.S. 67, 78-80 (1976); Leon Moon Sing v. United States, 158 US. 538, 547 (1895); cf Hampton v. Mow Sun Wong, 426 US. 88, 99-101 (1976) (plenary federal power over immigration and naturalization), would provide a fairly significant interest, as long as the choice of districts is not so irrational as to deprive the defendant of a reasonable opportunity to defend itself. The decision to adopt a fifth amendment standard, however, does not mean that the "aggregate contacts" test is appropriate in all cases. The most glaring problem with this analysis is that its adoption via Rule 4 would mean that Congress adopted nationwide service for all federal claims except where the state long-arm statute falls short of due process limits. Although the 1963 amendments to Rule 4 were intended to broaden the jurisdictional reach of federal district courts, it is doubtful that Congress intended such a broad change. 225. Parts B and C largely will discuss the federal interests that fall within the proposed test. It is assumed that the defendant's basic interests remain the same throughout. See supra notes 163-77 and accompanying text. Naturally, any special problems would be handled on a case-by-case basis through the balancing portion of the test, making generalizations difficult. 226. 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3601, at 355-56 ( 1984 ). Wright, Miller & Cooper believe, however, that in today's mobile society, this concern no longer retains significance. Id. at 356-57. 227. One assumes that bias against out-of-state plaintiffs is also a rationale for diversity jurisdiction because otherwise there is little reason to afford diversity jurisdiction when the plaintiff is the out-of-state party. 1987] state court to subject a defendant to its jurisdiction should also suffice to bring that defendant into federal court in that state.228 In some diversity cases, courts also should take uniquely federal interests into account. For example, in Bauxite, the Court upheld a finding of juridiction as a Rule 37229 sanction for failure to abide by discovery orders concerning jurisdiction.2 3 A simple fourteenth amendment "minimum contacts" analysis ignores the federal court's interest in upholding its procedures.23 In Bauxite, Justice Powell's concurrence argued that at least a prima facie case of minimum contacts must be made before a Rule 37 sanction can be invoked.23 2 Courts should ask whether the federal government's interests in upholding its procedures and providing plaintiffs with an opportunity to prove their case outweigh the defendant's liberty/due process interests.2 33 The proposed analysis considers federal interests while preserving the state-based interests seemingly expressed in Rule 4(e). Diversity Cases With FederalClaims-BurgerKing Revisited At trial, the diversity claim in Burger King was joined with a federal question claim. On appeal, defendants contested personal jurisdiction only for the state contract claim, 2 1 even though the trademark claim also was governed by Rule 4(e). The plaintiff logically could have argued that jurisdiction should be challenged for all related claims or for none of them because the constitutional standards are the same.2 35 The Supreme Court, however, treated the case as a simple diversity matter, making only a passing reference in a footnote to the fact that the original claim 228. Congress could decide that the federal interest is less than the state interest and amend Rule 4 to make it harder to bring the out-of-state litigant into federal court than into the state court. 229. Fed. R. Civ. P. 37. 230. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 US. 694, 709 (1982). 231. See id. The Court's approach in Bauxite, however, contains problems. One might question how a court reasonably can expect compliance with its orders when jurisdiction over the party has yet to be established. See Bauxite, 456 US. at 714-16 (Powell, J., concurring in judgment) (noting that there is nothing in Rule 37 that grants jurisdiction). Moreover, one might well ask whether a state court could make a similar finding using its own discovery rules. Some of these problems are dealt with by the proposed government interests test for jurisdiction. 232. Id. at 715-16 (Powell, J., concurring in judgment). 233. But see id. at 714-15 (Powell, J., concurring) (Rule 37 is not a basis for asserting personal jurisdiction). 234. Burger King Corp. v. Rudzewicz, 471 US. 462, 469-70 & n.ll ( 1985 ). 235. Compare Keeton v. Hustler Magazine, 465 US. 770, 774-76 ( 1984 ) (using fourteenth amendment due process standards in a diversity case) and DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1265 (5th Cir. 1983) (same) with Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 296 (3d Cir.) (fourteenth amendment due process standards restrict federal court jurisdiction in nondiversity cases), cert denied, 474 US. 980 ( 1985 ) and Johnson Creative Arts, Inc. v. Wool Masters, Inc., 743 F.2d 947, 950 (1st Cir. 1984) (denying that fourteenth amendment standards apply in federal question cases). had involved a trademark claim, a matter of federal law, as well.2 36 Treating a diversity case which also involves a federal claim as a simple diversity action ignores important federal interests. The interest in judicial economy alone is insufficient to overcome a due process interest, except where inconvenience to the defendant is virtually non-existent. Control of the fact-finding process in the federal part of the action, however, constitutes a more potent interest. If the case is split into a state and a federal action, the state case might go to trial first. In that event, a federal court could be forced to give issue-preclusive effect to the findings of the state court.2 37 Moreover, the federal claim might be subject to claim preclusion because it could have been brought in the state action.23' Thus, whatever interests allowed the case to be brought in the federal court would be lost. Litigation of the second case in state court would subjugate to the due process interest the goal of uniform federal adjudication of federal statutes. Burger King serves as a prime example. Jurisdiction over the defendants under the federal trademark statute was not questioned by either defendant.23 9 Curiously, the plaintiff did not argue that the existence of jurisdiction for purposes of the Lanham Act claim conferred jurisdiction over the defendants for all related claims. 240 The federal interest in BurgerKing is indirect. In BurgerKing, ifjuris236. Burger King Corp. v. Rudzewicz, 471 US. 462, 469-70 n.11 ( 1985 ). 237. See, e.g., Allen v. McCurry, 449 US. 90, 95 (1980) (recognizing that federal courts generally give preclusive effect to issues litigated in prior state proceeding, Court held that collateral estoppel applies when § 1983 plaintiffs attempt to relitigate in federal court issues decided against them in state court proceedings); see also 28 US.C. § 1738 (1982) (ensuring full faith and credit given to state court proceedings). 238. See, e.g., Migra v. Warren City School Dist. Bd. of Educ., 465 US. 75, 83-85 ( 1984 ) (claim under 42 US.C. § 1983 can be precluded by prior state case; Court remanded for determination of Ohio law of preclusion); Derish v. San Mateo-Burlingame Bd. of Realtors, 724 F.2d 1347, 1352 (9th Cir. 1983) (claim under federal antitrust laws precluded by prior case brought under state antitrust law); Nash County Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 486-92 (4th Cir.), cert. denied, 454 US. 878 (1981) (same). The Supreme Court has held that the claim preclusive effect of a prior state judgment is to be determined by looking to the preclusion law of the judgment-rendering state. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380 ( 1985 ); Migra, 465 US. at 85. As the Court suggested in Marrese, many states deny claim preclusive effect when the first court would not have had subject matter jurisdiction over the claim that is being asserted in the second suit. Marrese,470 U.S. at 383 (noting that the Restatement (Second) of Judgments §§ 25(1), 26(l)(c) supports this view). In those instances, the prior state judgment may not have claim preclusive effect on a later claim that is within the exclusive subject matter jurisdiction of the federal courts. See id. 239. See supra note 33 and accompanying text. Because the Lanham Act does not contain a nationwide service provision, see 15 US.C. §§ 1051-1127 (1982 & Supp. IV 1987), Rule 4(e) applies, incorporating the state's-in this case Florida's-long-arm statute. 240. BurgerKing's brief to the Court mentioned the possibility but did not develop the point. Brief for Appellant at 47-48. The idea resembles pendent subject matter jurisdiction, where the courts hear claims related to a federal claim even when federal subject matter jurisdiction would not exist for the related claim alone. See United Mine Workers v. Gibbs, 383 US. 715, 725-29 (1966). diction did not exist for the contract claim in Florida, then the plaintiffs would have had to litigate in Michigan. At that point, Burger King either would have had two cases in two jurisdictions-a contract claim in Michigan and a trademark claim in Florida-or it would have been forced to bring its trademark claim in a Michigan federal court. If it chose the former, the Michigan judgment could preclude the Florida action.2"4 ' If it chose, or was forced into, the latter option, it would lose the ability to litigate the trademark claim in Florida. As a result, the federal policy behind the ability to litigate in Florida would be thwarted. Though this may seem like a relatively insignificant interest, it is the same interest that allows the trademark claim to be brought in Florida in the first place.2 4 2 Thus, it would have been sufficient to satisfy the government's initial burden under the proposed test. Even if the liberty interest is overcome and the threshold test is met for one claim, the court should not automatically conclude that the test has been met for all claims. Arguably, if a given state or district is not inconvenient for the litigation of one claim, it cannot be inconvenient for another claim. Such an argument, however, is insufficient to block a due process challenge to jurisdiction over the second claim since jurisdiction is not viewed purely as a matter of convenience. For example, in at least one case in New York state court, plaintiff's argument that defendant's amenability to process in an unrelated case in New York federal court made him subject to suit in New York state court 43 was dismissed by the court on statutory grounds.' 4 Constitutional grounds, however, mandate the same decision. To conclude otherwise would take even the proposed interest analysis too far. The idea that a defendant can be subject to jurisdiction for only a narrow purpose is not new. It serves as the basis for the distinction between 241. Because the federal claim could have been litigated in Michigan, claim preclusion probably would bar the Florida action if the Michigan case went to trial first. However, the Florida action might not preclude the Michigan action because of the inability of the federal court in Florida to obtain jurisdiction over Rudzewicz on the contract claim. See Marrese v. American Academy of Orthopaedic Surgeons, 470 US. 373, 383 ( 1985 ). 242. It is hard to understand why Rudzewicz and MacShara only appealed personal jurisdiction as to the contract claim. Surely the trademark claim, which was a product of the franchise agreement, has as much, or as little, connection with Florida as the contract claim. Given that Rule 4 would govern both claims, one would have expected a court to apply the same standard-minimum contacts with Florida-to both claims. Under this Article's proposed analysis, the chances of having jurisdiction over a federal claim and not over a related state claim would be increased, because different interests would be considered. In general, where the "pendent" claim stems from diversity, and the state claim is brought in federal court, the problem of a state court thwarting federal resolution of federal questions is not present. Unless it is impossible to find a federal forum where both can be tried (which is extremely unlikely), the federal claim no doubt would be transferred pursuant to 28 U S.C. § 1404(a) and consolidated with the diversity claim. 243. Rockwood Nat'l Corp. v. Peat, Marwick, Mitchell & Co., 100 Misc. 2d 688, 69091, 420 N.Y.S. 2d 49, 51-52 (N.Y. Sup. Ct., Westchester County 1976), aff'd on other grounds, 63 A.D.2d 978, 406 N.Y.S.2d 106 (N.Y. App. Div. 2d Dep't 1978). 244. Id. specific and general jurisdiction.24 5 Permitting jurisdiction over unrelated claims would destroy this distinction. Proper assertion of personal jurisdiction over a party does not constitute waiver of the liberty interest. Although proper assertion of personal jurisdiction may indicate a lack of personal inconvenience in defending claims in the forum, lack of personal inconvenience is not the only limitation on jurisdiction. The defendant's liberty interest includes the ability to have witnesses testify without inconvenience.246 In addition, where the state's interest in applying its own law barely falls within constitutional bounds, courts should afford the liberty interest greater weight. Thus, the state interest should be construed narrowly so that the liberty interest is overcome only for the narrow purpose of the claim brought and related claims, and not for unrelated claims2. 47 An alternative solution, supported by ample precedent, entails the use of pendent personal jurisdiction.2 4 8 In Burger King, for example, although the Court's diversity jurisdiction technically supported the 245. In Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 ( 1984 ), the Court, in defining specific jurisdiction, stated "[it] has been said that when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum, the State is exercising 'specific jurisdiction' over the defendant". Id. at 414 n.8. The Court defined general jurisdiction over a defendant as "a State exercis[ing] personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum." Id. at 414 n.9. 246. The Supreme Court noted that this could be a factor in Burger King v. Rudzewicz, 471 U.S. 462, 483 & n.27 ( 1985 ), but found it not to be factually supported in that case. See also supra note 193 and accompanying text. 247. An analogous problem existed in Kulko v. Superior Court, 436 U.S. 84 (1978). In that case, a California resident sued her ex-husband, a New York resident, in California state court to obtain custody of their children (previously awarded to the father) and child support. See id. at 88. The children were residing with the mother in California at the time, and neither the father nor the Court questioned the authority of the California courts to rule on the custody dispute. See id. The Court held, however, that asserting jurisdiction over the father to decide the issue of child support violated due process. Id. at 96-98. Thus, a significant facet of the child support problem-which parent should have custody-would be decided in California, while a New York state court would determine how much should be paid for support. The case does not raise the preclusion problem inherent in pendent jurisdiction cases. If the father conceded that California had a sufficient interest to consider the custody dispute, why was it insufficient to confer a constitutionally permissible level of interest to decide the support issue? The real issue being determined was whether California should be permitted to apply its own law to the support question. Under the author's proposal, that would normally be a factor. Under the Kulko facts, one could resolve the jurisdictional issue in favor of the mother, even assuming New York law applied, because of the interest conferred by the custody battle. At some later date, however, the court would have to face squarely the choice of law issue. 248. See, e.g., Ferguson, PendentPersonalJurisdictionin the FederalCourts, 11 Vill. L. Rev. 56 (1965); Mills, PendentJurisdictionandExtraterritoriaSlervice Underthe Federal Securities Laws, 70 Colum. L. Rev. 423, 423-25 (1970); Note, Removing the Cloak of PersonalJurisdictionFrom Choice ofLaw Analysis: Pendent JurisdictionandNationwide Service of Process, 51 Fordham L. Rev. 127, 166 (1982) [hereinafter Note, Removing the Cloak]; Note, Ancillary Process and Venue in the FederalCourts, 73 Harv. L. Rev. 1164, 1175-78 (1960); Comment, ExtraterritoriaSlervice ProvisionsofFederalStatute Held In breach of contract claim, the breach of contract claim could have remained in the Court's jurisdiction as a pendent claim to the federal trademark claim even if no diversity jurisdiction existed.24 9 Arguably, because defendants unquestionably are going to litigate the trademark claim in Florida, the entire suit should be litigated in one place. Viewing jurisdiction as a matter of pure fairness to the defendant, once the defendant is already subject to the authority of the court for a trademark claim, it is not unfair to subject him to jurisdiction for all related claims. Viewing jurisdiction from the due process standpoint as set out above, once the threshold-plus-balancing test weighs against the defendant, the court should allow all claims to be made against him. The precedent for this argument largely stems from cases involving nationwide service of process, where the state's long-arm statute proved insufficient to obtain jurisdiction over the defendant for the pendent state claim.250 One of the few appellate cases confronting the issue directly is Robinson v. Penn Central Co.,25 where the Third Circuit held that the district court had jurisdiction over the defendant for purposes of claims pendent to a federal securities action. 252 The majority of other cases dealing with the issue reach the same result. 253 These decisions stem from the premises that nationwide service of process is always valid within the United States,2 54 and that the same concept of judicial economy as a factor that allows federal courts to assert subject matter jurisdiction over pendent claims, allows courts to assert personal jurisdiction over the pendent claims as well. 255 As previously discussed, however, the first premise, based on nationwide service of process, is not valid," 6 and the second, judicial economy, does not per se seem to involve a sufficient federal interest to overcome a defendant's liberty interest. A strong argument can be made that under Rule 4(e), the federal court applicableto Pendent Nonfederal Claim, 63 Colum. L. Rev. 762, 765 (1963) (discussing the requirements of pendent jurisdiction). 249. See United Mine Workers v. Gibbs, 383 US. 715 (1966). 250. See Note, Removing the Cloak, supra note 248, at 140-41. 251. 484 F.2d 553 (3d Cir. 1973). 252. Iad at 555-56. The Securities claims were made pursuant to the Securities Exchange Act of 1934, 15 U S.C. § 78aa (1982), and the Securities Act of 1933, 15 U S.C. § 77v (1982). Id at 554. There is nationwide service of process for these claims. 253. See, e.g., Oetiker v. Jurid Werke, G. m. b. H., 556 F.2d 1, 4-5 (D.C. Cir. 1977) (patent infringement claim); Emerson v. Falcon Mfg., 333 F. Supp. 888, 889-90 (S.D. Tex. 1971) (securities claim); Kane v. Central Am. Mining & Oil, 235 F. Supp. 559, 56768 (S.D.N.Y. 1964) (shareholders' derivative action). But see Wilensky v. Standard Beryllium Corp., 228 F. Supp. 703, 705-06 (D. Mass. 1964) (pendent claim to securities claim stricken when not supported by judicial economy). 254. See Robinson v. Penn Central Co., 484 F.2d 553, 554 (3d Cir. 1973) (noting that Congress undisputably could extend process of federal district courts throughout the United States) (citing Mississippi Publishing Corp. v. Murphree, 326 US. 438, 442 (1946)). 255. See Oetiker,556 F.2d at 5; Emerson, 333 F. Supp. at 890; Kane, 235 F. Supp. at 568; Robinson, 484 F.2d at 555-56. 256. See supra notes 204-11 and accompanying text. lacks jurisdictional authority in diversity cases with federal claims. If Congress has incorporated the limits of state statutes interpreted as not going to the limit of due process into Rule 4(e), then, unless one can say that personal jurisdiction is conferred directly by the nationwide service of process statute, the limits of Rule 4(e) must be respected. There appears to be little precedent discussing this possibility. In Oetiker v. Jurid Werke, G. m. b. H.,2"7 the court held that where personal jurisdiction existed over a patent infringement claim, pendent jurisdiction permitted personal jurisdiction over the defendant for a related federal claim.25 The court made this assertion without any discussion of Rule 4(e), although the Rule was applicable to the related federal claim. Bodine's, Inc. v. Sunny-O, Inc.,259 a diversity case involving tort and contract claims, similarly allows jurisdiction on a pendent claim theory. The court determined that federal personal jurisdiction existed under Illinois law for the tort claim. 2" Regarding the contract claim, the court "believe[d] that it would not offend the underlying purposes of the Illinois Long-Arm Statute for the Court to treat the contract claims as pendent to the tort claim ....,26 The court refused to recognize the strict limits of the Illinois statute for purposes of this additional, related claim.26 2 In RFD GroupLtd. v. RubberFabricators,Inc.,263 however, the Southern District of New York, without discussing pendent jurisdiction, dismissed certain claims in a diversity action as not within New York's long-arm statute, although they had a relationship to claims for which personal jurisdiction existed.2 Purely statutory grounds justify the decisions in Oetiker and RFD Group, as well as in nationwide service cases like Robinson. Note, however, that although the concept of pendent claims was not developed fully at the time that many of the nationwide service statutes were enacted, Congress presumably intended to give broad reach to them.265 In Robinson, the statute allowing nationwide service arguably was intended to allow such service for pendent or related claims.2 66 This would circumvent the Rule 4(e) problem. In a federal question case with a pen257. 556 F.2d I (D.C. Cir. 1977). 258. Id. at 4-5. 259. 494 F. Supp. 1279 (N.D. Ill. 1980). 260. Id. at 1281. 261. Id. at 1285 (citation omitted). 262. Id. at 1284-85. 263. 323 F. Supp. 521 (S.D.N.Y. 1971). 264. Id. at 524-27. 265. See, e.g., Bertozzi v. King Louie Int'l, Inc., 420 F. Supp. 1166, 1170 (D.R.I. 1976) (noting the "wide accessibility that § 27 [(the nationwide service provision of the Securities Exchange Act of 1934)] is designed to provide"); In re Whippany Paper Bd. Co., 15 B.R. 312, 314 (Bankr. D.N.J. 1981) (discussing nationwide service under the Bankruptcy Rules). 266. See Robinson v. Penn Central Co., 484 F.2d 553, 555-56 (3d Cir. 1973). Related dent state claim, like Oetiker and Robinson, and even in diversity cases like Bodine's, the proposed test would allow jurisdiction as long as the amenability problem is the result of constitutional limitations, not of limitations inherent in the state long-arm statute. Even if jurisdiction is justified on statutory grounds, however, it still must satisfy due process under the fifth amendment, which requires an identifiable federal interest. With regard to purely pendent claims, or to claims raising only state law issues, the above discussion of diversity claims might militate against such an interest. On the other hand, there are significant federal interests in a case involving both federal and state claims that are lacking in a pure diversity case.267 D. Interpleader Federal interpleader is a major exception to the complete diversity requirement. The Federal Interpleader Act2 68 provides for nationwide service of process for such actions, which are brought on the basis of diversity among the claimants.2 69 Although federal courts apply state law to resolve a federal interpleader claim,27° legitimate federal interests in establishing an amenability standard still exist. The original impetus for the Federal Interpleader Act was the unavailability of personal jurisdiction in one state court over all the claimants.27 1 The statute permits the stakeholder to join claimants from different places.272 Modem standards of jurisdiction undoubtedly enable states to entertain the overwhelming majority of such cases, where they choose to do SO.2 73 This alone does not eliminate the possibility of a federal interest. In addition to creating a federal protection against potential multiple claims technically would not be pendent if they were subject to independent federal jurisdiction such as diversity. 267. See supra notes 235-38 and accompanying text. 268. 28 US.C. § 1335 (1982). 269. 28 U.S.C. § 2361 (1982). 270. See Great Falls Transfer & Storage Co. v. Pan Am. Petroleum Corp., 353 F.2d 348, 349-50 (10th Cir. 1965); Kerrigan's Estate v. Joseph E. Seagram & Sons, Inc., 199 F.2d 694, 697 (3d Cir. 1952); see also Griffin v. McCoach, 313 US. 498, 503 (1941) (federal court must look to the forum state's choice of law rules to determine which state's law will govern as to the rights of claimants). 271. See Chafee, Interpleaderin the United States Courts, 41 Yale LJ. 1134, 1136 (1932); see also New York Life Ins. Co. v. Dunlevy, 241 US. 518, 521 (1916); 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1702, at 493 (2d ed. 1986). 272. See 28 U.S.C. § 1335 (1982). 273. Many state long-arm statutes do not cover the transactions that would lead to an interpleader action, focusing instead on "tortious acts" and the like. See, e.g., N.Y. Civ. Prac. L. & R. § 302 (McKinney 1978); N.C. Gen. Stat. § 1-75.4 (1983); I11.Ann. Stat. Ch. 110 § 2-209 (1983). Note, however, that the early passage of the federal statutelong before InternationalShoe-eliminated the need for broad state jurisdiction over interpleader actions. Thus, the lack of state involvement in the area may reflect the preemptive action of federal law. litigation, the current federal act eliminates many of the technical limitations of common law interpleader procedure.2 7 4 Moreover, when combined with a low five hundred dollar minimum claim value for the federal proceeding,2 75 the Act provides a greater incentive for use of federal, instead of state, courts. This has resulted in the development of a welldefined, uniform remedy276 that protects many entities doing business in interstate commerce from the vagaries of differing state practices. 2 " Because interstate commerce is recognized explicitly in the Constitution as a federal concern,2 78 the substantiality of a federal interest in using federal amenability standards is clear. This does not mean, however, that the extremely broad amenability standards of the Federal Interpleader Act are beyond question in all cases. The problems with amenability under the Act lie not so much with the availability of nationwide service as with its interaction with the venue provisions of the Act. Venue is proper where any claimant resides. 279 Because the Act requires only minimal diversity, venue is proper in a district with almost no connection to the stakeholder or to the great majority of claimants.2 8 ° It is difficult to see what federal interest requires allowing jurisdiction under all such circumstances. If the claimants were scattered around the country, with no real plurality of residence, this result could be justifiable on the grounds of necessity. 28 ' When the majority of claimants would be inconvenienced severely by the choice of venue, however, their liberty interests ought not to be invaded so cavalierly. 274. 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1701, at 488-91 (2d ed. 1986). 275. 28 U.S.C. § 1335 (1982). 276. See, e.g., Maryland Casualty Co. v. Glassell-Taylor & Robinson, 156 F.2d 519, 523-24 (5th Cir. 1946); Irving Trust Co. v. Nationwide Leisure Corp., 95 F.R.D. 51, 59 (S.D.N.Y. 1982); Commercial Union Ins. Co. v. Adams, 231 F. Supp. 860, 867 (S.D. Ind. 1964). 277. In Chafee, Interstate Interpleader, 33 Yale L.J. 685 (1924), Professor Chafec stated that "[w]hile our present governmental machinery is adequately adapted for preventing state interference with national powers, or vice versa, a serious and little discussed difficulty is the absence of machinery to adjust clashes and secure co-operation among the states." Id. at 685. 278. US. Const. art. I, § 8, cl. 3. 279. 28 US.C. § 1397 (1982). 280. The statute allows "minimal" diversity, see id.; that is, the claim may be brought as long as any two claimants are diverse. State Farm Fire & Casualty Co. v. Tashire, 386 US. 523, 530 (1967). Interpleader claims also may be brought under Federal Rules of Civil Procedure Rule 22. See Fed. R. Civ. P. 22. The Rule requires complete diversity, however, and jurisdiction would be determined according to Rule 4 standards. See 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1703, at 498-99 (2d ed. 1986) (Rule 22 requires complete diversity between stakeholder and claimants); id. at 499 (service of process for Rule 22 is made according to Rule 4). 281. Cf Mullane v. Central Hanover Bank & Trust Co., 339 US. 306, 313, 317-18 (1950) (permitting service of process by publication to obtain jurisdiction over beneficiaries to a common trust fund who are scattered around the country). Some cases involving jurisdiction over claimants in the interpleader context have discussed the limits of the federal interest involved. Those cases held that the remedial function served by the Act does not allow a court to assert jurisdiction over claimants for claims not directly provided for under the Act.2" 2 This is a proper conclusion; the federal interest resides in protecting against multiple vexatious of stakeholders, not in providing a comprehensive action to resolve all related claims.2"' Thus, if reasonably restricted, the nationwide service provision is consistent in most cases with the governmental interest standard. The court must determine, on a case-by-case basis, that the interest served by the Federal Interpleader Act surpasses the intermediate threshold necessary to overcome the stakeholders' or claimants' due process interest. E. A FinalAside-FederalLaw in the State Courts Under the proposed test, federal courts would take federal interests into account when deciding amenability questions. In addition, federal interests also arise when state courts decide federal question cases. Whether state courts should be required to use federal amenability standards or should apply their own long-arm statutes with fourteenth amendment restrictions depends on whether the state standards would interfere with the federal policy embodied in the substantive law being applied.2 84 In areas where the federal statute allows nationwide service of process, Congress has expressed a policy allowing plaintiffs a liberal choice of forum as a substantive aspect of the remedy involved.28 5 Therefore, state courts should follow the federal statute and afford na282. See, e.g., Hagan v. Central Ave. Dairy, Inc., 180 F.2d 502 (9th Cir. 1950) (dismissing cross-claim arising out of the same transaction because it would enlarge the jurisdiction of a court and create rights not provided for under the Act); Marine Bank & Trust. Co. v. Hamilton Bros., 55 F.R.D. 505 (M.D. Fla. 1972) (co-defendant not permitted to maintain cross-claim against non-resident defendant served with process under the procedures set for nationwide service of process); see also Indianapolis Colts v. Mayor of Baltimore, 733 F.2d 484, 487 (7th Cir. 1984) (plaintiff not allowed to use interpleader action to subject defendant to personal jurisdiction when the defendant otherwise would not have been subject to jurisdiction), cert denied, 105 S. Ct. 1753 ( 1985 ). 283. See State Farm Fire & Casualty Co. v. Tashire, 386 US. 523 (1967), where the Court stated that the interpleader device was never meant to be a" 'bill of peace,' capable of sweeping dozens of lawsuits out of the various state and federal courts in which they were brought and into a single interpleader proceeding." Id. at 535-36. 284. Although cases containing a discussion of jurisdiction in this context do not appear to exist, the concept that state courts must use federal law when state law interferes with federal interests is expressed in case law in other contexts. See Dice v. Akron, C. & Y. R. Co., 342 US. 359, 361 (1952) (federal law determines defenses under federal statute); Brown v. Western Ry. of Ala., 338 US. 294, 298-99 (1949) (states' trial practice cannot defeat a right created by federal law). 285. In Kane v. Central Am. Mining & Oil, 235 F. Supp. 559 (S.D.N.Y. 1964), the court, discussing the broad venue provisions of section 27 of the Securities Exchange Act, 15 U S.C. § 78aa (1982), noted that they reflected "the Congressional purpose of providing an accessible forum for imposing the Act's standards upon multistate transactions in securities." 235 F. Supp. at 565. Then, discussing the nationwide service of process provisions also contained in section 27, the court stated: "[C]onsidering the broad remedial tionwide service, subject to the fifth amendment governmental interest standard. This would measure federal, not state interests, even though a state court resolves a suit. This issue seldom arises in practice because most statutes providing for nationwide service also give exclusive jurisdiction to federal courts.2 6 Some exceptions do exist. 2 7 One state case, however, lends implicit support to the position set forth here. In Lakewood Bank & Trust Co. v. Superior Court,"'8 plaintiff alleged violations of sections 5 and 12 of the Securities Act of 1933289 and of state law. The statute provides for both concurrent jurisdiction and nationwide service.2 90 Although the court ultimately determined that the plaintiff did not properly state a claim under the Securities Act, in dictum it appeared to assume nationwide service would apply if the federal statute were found to be applicable. 29 , Moreover, the jurisdictional authority in a nationwide service case comes from a federal statute. Hence it is fitting that a fifth amendment standard, incorporating federal concerns, apply. In cases where the federal statute does not contain a nationwide service of process provision, the issue is different. By failing to provide an express jurisdictional statute, Congress apparently has delegated the statutory standard of authority to the states' long-arm statutes.2 92 Since this constitutes the same standard as would be used in a federal court, it is not altogether out of place. To measure the federal interests in having a federal dispute resolved in a particular location by purely state concerns, however, is inappropriate. Nevertheless, the source of jurisdictional authority is now a state statute, and the more appropriate standard may be a fourteenth amendment one, in which case the concerns of the state, perhaps weaker in this circumstance, will be the ones to measure. This objective of the 1934 Act, it would be an anomaly to expand the venue provision and at the same time to contract service of process amenability." Id. at 566-67. 286. See, e.g., 15 US.C. § 78aa (1982); 28 US.C. § 1332(a)(1) (1982); 42 US.C. § 9613(b) (1982); see also 28 U.S.C. § 1334(a) (1982). 287. One such exception is the Securities Act of 1933, which gives concurrent subject matter jurisdiction over claims brought under the statute to state and federal courts. 15 U.S.C. § 77v (1982). 288. 129 Cal. App. 3d 463, 180 Cal. Rptr. 914 (Cal. Ct. App. 1st Dist. 1982). 289. See id. at 469, 180 Cal. Rptr. at 917; 15 U.S.C. § 77e, 771 (1982). 290. Lakewood Bank & Trust, 129 Cal. App. 3d at 468-69, 180 Cal. Rptr. at 916-17 (citing 15 U S.C. § 77v(a) (1982)). 291. See id. at 470-71, 180 Cal. Rptr. at 918 ("California court may obtain jurisdiction over petitioner pursuant to section 22(a) [of the Securities Exchange Act of 1934] only if ...a claim either brought to enforce any liability or duty created by the Securities Act of 1933 or is fundamentally derived from and dependent on such claim."). For a contrary view, see Negin v. Cico Oil & Gas Co., 46 Misc. 2d 367, 259 N.Y.S.2d 434 (N.Y. Sup. Ct., N.Y. County 1965). In Negin, the court rejected use of the nationwide service provisions of the Securities Act of 1933. It reasoned that the language of the Act, which refers to suits being brought in any district, did not apply to cases brought in the state courts. Id. at 368, 259 N.Y.S.2d at 436 (interpreting § 22(a) of the Securities Act of 1933, 15 U.S.C. § 77v(a) (1982)). 292. See Fed. R. Civ. P. 4. may make it more difficult to sue out-of-state defendants in state court on federal claims, but this may not be an undesirable result. CONCLUSION The analysis of jurisdiction of federal courts suffers from two fundamental problems: the first is Rule 4 which is difficult to apply, and which has resulted in an anomalous use of fourteenth amendment standards to judge the propriety of federal action, and the second is constitutional tests which, divorced from other due process cases, have proven less than ideal in the federal area, and imperfect even for state courts. For over one hundred years, courts have measured jurisdiction by the constitutional test of "due process." It has been treated as a due process outsider, however, never quite considered part of mainstream due process analysis. Lack of analytical uniformity in general does not justify the complete exclusion of jurisdiction from the traditional analysis. Moreover, keeping jurisdictional analysis in its own due process box has led to decisions that, despite the emergence of the minimum contacts analysis, are often ad hoc. The unified analysis proposed here will not work radical changes in the results of cases; it will, however, produce some changes. It also will allow a careful consideration of the real interests involved in a jurisdiction decision. In federal courts, it will prevent federal interests from being ignored, while allowing due process rights to be protected in cases, such as nationwide service, that currently ignore this issue. It is hoped that this Article will provoke a careful reconsideration of the jurisdiction question in federal courts, and will constitute a first step in making the analysis of jurisdiction a more reasonable and rational one. NEW OFFENSE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085 18 . See id . at 223 . 19. See id. at 224 . 20. See Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 , 510 ( 2d Cir . 1960 ) (describing InternationalShoe as "applying substantially a balancing of interests" ). 21 . 444 U.S. 286 ( 1980 ). 22 . 471 U.S. 462 ( 1985 ). 23 . 357 US. 235 ( 1958 ). 24 . Id. at 253. See also Burger King Corp . v. Rudzewicz, 471 US. 462 , 474 - 76 ( 1985 ); World-Wide Volkswagen Corp . v. Woodson, 444 U.S. 286 , 297 ( 1980 ). 25 . Burger King Corp. v. Rudzewicz, 471 U.S. at 474- 75 . This test "ensures that a or 'attenuated' contacts." Id. at 475 (citations omitted). The Court's recent opinion in Asahi Metal Industrial Co . v. Superior Court , 107 S. Ct . 1026 ( 1987 ), however, adds some confusion to the first step of the analysis . Justice 1031 (emphasis in original) (quoting Burger King , 471 U.S. at 475), which is akin to the focus of the test articulated in World-Wide Volkswagen, 444 US . at 297-98 (unilateral Denckla , 357 U.S. at 253 ( unilateral activity of plaintiff does not satisfy the requirement ment" standard, see BurgerKing , 471 U.S. at 475; Asahi Metal, 107 S. Ct . at 1035 (Bren- create such contacts . See Asahi Metal , 107 S. Ct . at 1035 (Brennan, J.,dissenting) (as (quoting majority opinion, 107 S.Ct . at 1035)). Step one of the analysis ultimately requires minimum contacts, however, regardless of duct by the defendant creating such contacts. 43. See Burger King Corp . v. Rudzewicz, 471 US. 462 , 468 - 69 ( 1985 ). For example, the Court does not cite Federal Rules of Civil Procedure Rule 4(e) which directs federal courts to look to state statutes . See Fed. R. Civ . P. 4 (e); see also infra notes 48-55 and accompanying text. 44 . In fairness to the Court, the record shows that defendants did file papers denomi- Court at 107; see also Burger King Corp . v. MacShara , 724 F.2d 1505 , 1508 (11 th Cir. 1984 ) (defendants entered special appearance to contest personal jurisdiction), rev'd sub nom. Burger King Corp . v. Rudzewicz, 471 US. 462 ( 1985 ). The proper procedure re- Procedure Rule 12(b)(2). Defendants eventually filed a motion for summary judgment and dismissal, Record at A43, which was denied . Record at A21 . 45. Burger King Corp. v. Rudzewicz, 471 US. 462 , 468 - 69 ( 1985 ). 46 . Id. at 470-71 n. 12 . 47. For a discussion of the problem of whether jurisdiction for one purpose gives jurisdiction for another purpose , see infra notes 243-47 and accompanying text . The

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David S. Welkowitz. Beyond Burger King: The Federal Interest in Personal Jurisdiction, Fordham Law Review, 1987,