You are on page 1of 7


Pennoyer (Burnham affirmed not dead)

1) Domiciliary (Corporations - Inc, HQ)
2) In-State Service (to person - Burnham, not property - Schaffer)
Bristol Myers: cant forum shop; needs to have suffered harm there 3) Consent (Carnival Cruise, FUBU - has to agree to jx in MN for store in Mall of America, Nicastro (to every state)

Not Met. FPSJ

Calder: cant be entirely plaintiff driven; where harm occurred

International Shoe 's burden/interest: How hard to get there?

2-Step Analysis 's burden/interest: connection to forum state,
MINIMUM (always go to FPSJ) how hard to get there?
CONTACTS State's interest: Should state have jx?
Judicial Efficiency: How hard to put case on?
Doctrinal flexibility; but no clear standard
Outer Limits to Minimum Contacts

Note: Analogize/Distinguish Cases

Purposeful Availment
centered Continuous Economic Activity
WWV: Reasonably foresee, Asahi (Stevens) systematic and
advertise or sell in forum, continuous (Intl Shoe)
deliberate targeting of state, Keeton (15K volume, NH)
presence, benefits o #s tend not to be enough; see Stream of Commerce
Nicastro (Kennedy): 4 McGee Asahi (Brennan), Gray,
machines not enough for NJ Effects Test Nicastro (Ginsburg dissent)
jx, Availed in U.S. as a whole Keeton, Calder, foreseeable
Asahi (OConnor IIA): Bank Pavlovich/Walden, Reems Prob dont really want to use stream
account, principal place, Effects Test of commerce too broad a test
o Publisher liable anywhere
direct sales; actions directed Keeton, Calder, Pavlovich/Walden, Reems
o Limits: systematic targeting
toward forum Prob
STILL NO JX? TRY: o Publisher liable anywhere
Internet (dont necessarily need to
o Limits: systematic targeting (Pavlovich)
run thru)

Internet (dont necessarily need to run thru)

Zippo: site invites transactions from

Zippo: site invites transactions from outside (interactive

outside v passive)
(interactive v passive)
Pavlovich: sue Plaintiff where stuff uploaded; sue Plaintiff
not enough where
that effects in CA
uploaded; not enough that effects
felt in CA

Tension One sovereign exercising jx to protect its citizens diminishes another sovereigns ability to protect its
Theme(s) Due process
Questions to Ask Does the Court have authority over the parties?
How to Dispute Try case on merits and appeal on P Jx
Affirmative Defense?? See FRCP
How to Defend

In person
Personal JX

In rem

Quasi in rem

Territorial Approach

Pennoyer failed to meet the three conditions of jx, thus sale of land improper, and land was returned to Neff.
o Proceedings in a court of justice to determine personal rights and obligations of parties over whom the court has no jx
do not constitute due process of law

Inherent difficulties in territorial approach with increasing mobility.

Hess: Mass. had sovereign interest in protecting its citizens and maintaining safety in its highway
o Solved problem of defendants passing through long-arm statute:
Fictional Consent & Appointment of an Agent: satisfied consent prong, as well as in-state service prong
o Supreme Court upheld Mass statute not necessarily because of Pennoyer satisfaction but also because of notice [4e]
requirement; also inherently fair because lawsuit arose from activities in Mass.

Transactional Approach
looks to the conduct giving rise to the suit

International Shoe
o Under Pennoyer a DE corporation w HQ in St. Louis appeared untouchable in WA.
o WA tried serving subpoenas on salesmenare notice and reasonable basis for suit touchstones for personal jx?
o Minimum contacts and FPSJ closer to issue of ensuring accountability for wrongful acts regardless of formalities of
citizenship or form of service
Keeton Problem
o Hustler liable under NH defamation laws
o Big defendants can afford litigation; smaller defendants may limit business because of potential liability
Walden: (Thomas) the plaintiff cannot be the only link between defendant and forum. Defendants conduct
WWV- foreseeability insufficient
o Automobile not part of the stream of commerce
o Did the defendant purposefully avail itself? [5 questions]
Define reasonably forseeable?
Defendants side of equation unintended consequences of denying OK ability to control own highways and
protect its citizens
Left open expansion BK v Rudzcewicz (question was whether FL was constitutionally conceivable jx not
comparison of forums) arbitrary and unfair


o OConnor for plurality tried to stiffen purposeful availment overt acts to secure commercial or benefits in forum such
as marketing, service, designing parts for forum, soliciting business
Subpart manufacturer unlikely, but foreseeable that tire valave in japan could part of cycle in CA
Honda indemnification agreements with manufacturers but limits redress of consumers to parties with which
they had direct contact with
Rejected by 5 members of the court found that ongoing sales within stream of commerce were sufficient
follow chain of sale
Minimum contacts found but denied JX because of FPSJ
Majority:OConnor interest of plaintiff in proceeding in forum, burden on defendant having to defend,
interest o fforum state, overall interests of legal system in efficient resolution in forum burdens
outweighed interests + original plaintiff had settled out and compensated for injuries
what is lost? Predictability (tell your client: it depends on this balancing test; no standard)


o Stock certificates in DE turn DE into magnet forum NO JX had to be held to international shoe and FPSJ

FRACTURES lingering resistance to due process analysis

Scalia did not join majority in Asahi re FPSJ

o No controlling opinion
o Scalia: pennoyer framework sufficient to decide issue of jx, no need to go further
o Brennanapplied due process but found jx proper quid pro quo party reaps benefits of state, pay price of

Carnival Cruise: ticket had forum selection clause to be tried in FL
o Benefits they derived from forum selection were lower cruise fare sufficient quid pro quo
o Limiting liability could presumably be passed on to ultimate consumer in other cases
o Due process has a lot to say about fairness of enforcing choice of forum on unwitting consumers


Jx bassed on quality of defendants general relation to forum equivalent of domiciliary

o Restrict reach to continuous and systematic contacts evidenced by company hq, sales operations, bank accts
o Negative struck down exercise of jx co only entered for some purchases and single-shot events

Bauman: selling products in a state not enough to subject corporation to general jx

Delivery of machinery to NJ defective lost hand in workplace accident
Kennedy purposeful availment (NJ not directly targeted jx of corts of US but not of any particular State) Breyer said only
sold 4 machines
Dissent Ginsburg appeared to harken back to broad Brennan jx
Has not had a huge impact on lower courts single contact with forum does not equate to personal jx
What about if many plaintiffs injured would that create jx?


Mass Tort (v. class action)

Drug manufacturer sued in CA over injuries caused by blood thinning drug to out of state plaintiffs court wanted to join
claims in CA state court
All conduct giving rise to nonresidents claims occurred elsewhere
Sotomayor dissented: more than traditional sovereignty and less than all-out personal jx (someone in NY BM office sues in
CA) but should yield to common prosecution of similar claims by those injured through national market conduct
Majority suggested rule might be different of plaintiffs had sought to bring a national level case in federal court as opposed to
state court
o Plaintiff will have to bring suit in defendants home or break it up (less at stake)

Zippo (passive and active; active = inviting commercial transactions vs. just informational)
o No physical contact, repeated processing of commercial transactions even if initiated by Pennsylvania consumers
initiated the transaction

Case Year Material Facts Key words Plurality PJ?

Shoe 1945 Out of state corp., lots minimum contacts; benefits and YES
of orders, salesmen protections of the laws; does not offend (specific)
permanently there traditional notions of fair play and
substantial justice

McGee 1957 Out-of-state insurer Single deliberate commercial contact YES

sold policy to forum giving rise to claim (specific)
Case Year Material Facts Key words Plurality PJ?
Gray 1961 Out-of-state elected to sell product for ultimate use YES
component maker sells in forum state (specific)
to out-of-state Deliberate contact for economic benefit
manufacturer who sells
finished product in
WWV 1980 sells car in NY, Test is if reasonably anticipated NO(NY
accident in OK being haled to state court; Dealders
foreseeability not enough hip)
5 fairness factors purposeful availment
1. Reasonably foresee
2. Deliberate targeting of state
3. Transactions
4. Physical presence
5. Benefits from state
Brennan: purposefully injected goods
into stream of commerce

Burger 1985 Out of state 2prong analysis. Continuous but limited YES
King businessmen solicit purposeful availment= minimum contacts (specific)
franchise from FL s unilateral action of reaching out to
corp., contract in FL, FL corp
sustained dealings
Asahi 1987 Japan selling valves minimum contacts + five fairness Justice NO
in Taiwan to Taiwan factors; mere placement of product into OConnor
corp that wind up in stream of commerce not enough
defective tires in forum Action purposefully directed at forum Justice
state. Minimum contacts + fairness factors Brennan
Keeton 1984 Hustler magazine liable Minimum contacts: sales in NH = YES
under NH defamation publication (specific)
Case Year Material Facts Key words Plurality PJ?
Walden 2014 GA police officer w Plaintiff cannot be only link if JX NO
DEA seized cash in meant subject to suit wherever
ATL Airport; no jx in adversaries may room
NV (home of
plaintiffs) alleged
false probable cause