Beyond Burger King: The Federal Interest in Personal Jurisdiction
Beyond Burger King : The F Personal Jurisdiction
David S. Welkowitz 0
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Recommended Citation David S. Welkowitz, Beyond Burger King : Th e Federal Interest in Personal Jurisdiction, 56 Fordham L. Rev. 1 (1987). Available at: http://ir.lawnet.fordham.edu/flr/vol56/iss1/1
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 ......................................
INTRODUCTORY REMARKS ..............
Dean John D. Feerick 151
THE ALTERNATIVE TO
THE STRIKE .........
Arvid Anderson and Loren A. Krause
EdwardSilver and Joan McAvoy
EMPLOYEES' RECOVERY OF ATTORNEYS' FEES FROM
UNIONS UNDER SECTION 301 OF THE LABOR
MANAGEMENT RELATIONS ACT ...........................
NUMBER 3 CONTENTS
PROPOSED SEC REGULATION OF MARKET
SWEEPS: SHOULD MARKET SWEEPS BE GOVERNED
BY THE W ILLIAMS ACT? ...................................
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
USER FRIENDLY CIVIL PROCEDURE:
SLOUCHING AWAY FROM
PROCESS THEORY ......................
Linda S. Mullenix 1023
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 *
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).
3. See Asahi Metal Indus. Co. v. Superior Ct., 107 S.Ct. 1026 (1987); Burger King
Corp. v. Rudzewicz, 471 US. 462 (
); Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 US. 408 (
); Calder v. Jones, 465 US. 783 (
); Keeton v. Hustler
Magazine, 465 US. 770 (
); 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 (
) (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 (
) (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
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.
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
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
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
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 (
). 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
27. Burger King Corp. v. Rudzewicz, 471 US. 462, 466 (
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 (
); Burger King
Corp. v. MacShara, 724 F.2d 1505, 1508 (11th Cir. 1984), rev'd, 471 US. 462 (
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
34. 471 US. at 487.
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
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 (
36. 433 US. 186 (1977).
37. 444 US. 286 (1980).
38. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 487 (
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
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 (
); Calder v. Jones, 465 US. 783, 788-89 (
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
), a diversity case rendered during the previous term. See id. at 780-81.
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
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
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).
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
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
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 (
) ("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
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 (
) (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
187. 471 U.S. 462, 481-82 (
) (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 (
) (discussing California's interest in ensuring that
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
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 (
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 (
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)); Keeton v.
Hustler Magazine, 465 U.S. 770, 780 (
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 (
v. Superior Court, 436 US. 84, 94 (1978).
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
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
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
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 (
). 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 (
) (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).
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.
210. Burger King Corp. v. Rudzewicz, 471 US. 462, 477 (
) (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
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
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
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
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
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
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 (
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 (
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
at least resemble those presently achieved.224
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
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
226. 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3601, at
). 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.
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
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,
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
234. Burger King Corp. v. Rudzewicz, 471 US. 462, 469-70 & n.ll (
235. Compare Keeton v. Hustler Magazine, 465 US. 770, 774-76 (
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 (
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 (
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
) (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 (
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
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 (
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
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).
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 (
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 (
), 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
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
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
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
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
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
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.
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
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.
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 (
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 ...is 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.
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