Nationwide personal jurisdiction for our federal courts

Denver University Law Review

Volumn 87, Issue 2, 2010, Pages 325-334

  Spencer, A Benjamin ^a  

^a WASHINGTON AND LEE UNIVERSITY   (United States)

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EID: 79951920753     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (60)

1. Statement of Mr. Justice Black and Mr. Justice Douglas, 374 U. S. 865, 869 (1963).
2. 95 U. S. 714 (1877).
3. 326 U. S. 310 (1945).
4. FED. R. CIV. P. 4 (k) (1) (A) ("Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant: (A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located....").
5. Jamelle C. Sharpe, Beyond Borders: Disassembling the State-Based Model of Federal Forum Fairness, 30 CARDOZO L. REV. 2897, 2903 (2009) ("Those members of the First Congress who set out to create the federal court system were keenly aware that their constituents were 'accustomed to receive justice at their own doors in a simple form,' and repeatedly were warned of the dangers that could attend a geographically expansive national judiciary."
6. (quoting 4 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789-1800, at 28 (Maeva Marcus & James R. Perry eds., 1992))).
7. Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 79 ("[N]o civil suit shall be brought before either of [circuit or district] courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ....").
8. Robertson v. R. R. Labor Bd., 268 U. S. 619, 623 (1925) ("Under the general provisions of law, a United States District Court cannot issue process beyond the limits of the district. And a defendant in a civil suit can be subjected to its jurisdiction in personam only by service within the district. Such was the general rule established by Judiciary Act Sept. 24, 1789.... And such has been the general rule ever since." (citations omitted)).
9. Rule 4 (f) originally read, "Territorial Limits of Effective Service. All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held and, when a statute of the United States so provides, beyond the territorial limits of that state." FED. R. CIV. P. 4 (f) (1938 adoption)
10. reprinted in 1 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 4 app. 01 (3d ed. 1997 & Supp. 2009).
11. Rule 4 (e) was amended to read, "Whenever a statute or rule of court of the state in which the district court is held provides... for service of a summons... upon a party not an inhabitant of or found within the state,... service may... be made under the circumstances and in the manner prescribed in the statute or rule."
12. Id. 4 (e) (1963 amendment), reprinted in 1 MOORE ET AL., supra note 8, at § 4 app. 03. Rule 4 (f) was amended to indicate that extraterritorial service was effective "when authorized by a statute of the United States or by these rules."
13. Id. 4 (f) (1963 amendment), reprinted in 1 MOORE ET AL., supra note 8, at § 4 app. 03.
14. Id. 4 (k) (1).
15. Douglas D. McFarland, Dictum Run Wild: How Long-Arm Statutes Extended to the Limits of Due Process, 84 B. U. L. REV. 491, 496-97 (2004) (discussing the long-arm statutes across the states and indicating that 32 states have statutes that expressly or by judicial interpretation confer jurisdiction to the constitutional limit).
16. New York is a notable example of such a state. See N. Y. C. P. L. R. 302 (McKinney 2009).
17. Cf. Guar. Trust Co. of N. Y. v. York, 326 U. S. 99, 108 (1945) ("[A] federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State....").
18. Bank of U. S. v. Deveaux, 9 U. S. 61, 87 (1809) (Marshall, C. J.) ("However, true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true that the constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different states.").
19. Judge Friendly explores and questions this rationale in Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483, 492-93 (1928).
20. Rule 4 (k) (2) reads as follows: "For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws." FED. R. CIV. P. 4 (k) (2).
21. I have specified my views to that effect in a previous writing. A. Benjamin Spencer, Jurisdiction to Adjudicate: A Revised Analysis, 73 U. CHI. L. REV. 617, 618 (2006) ("With each decision, the Court has convulsed away from the simple notion in International Shoe that state sovereignty and due process permit jurisdiction over nonresidents who are minimally connected with the forum, to a confused defendant-centric doctrine obsessed with defendants' intentions, expectations, and experiences of inconvenience.") ;
22. see also James Weinstein, The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine, 90 VA. L. REV. 169, 171 & n. 5 (2004) (describing personal jurisdiction doctrine under International Shoe and its progeny as "deeply confused" and collecting critical commentary).
23. 28 U. S. C. § 1391 (2006).
24. See Int'l Shoe Co. v. Washington, 326 U. S. 310, 319 (1945).
25. See Burger King Corp. v. Rudzewicz, 471 U. S. 462, 472 (1985) ("By requiring that individuals have 'fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign,' the Due Process Clause 'gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.'" (alteration in original) (citation omitted)
26. (quoting Shaffer v. Heitner, 433 U. S. 186, 218 (1977) (Stevens, J., concurring) ;
27. World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 297 (1980))).
28. Int'l Shoe, 326 U. S. at 319.
29. Toland v. Sprague, 37 U. S. 300, 328 (1838) ("Whatever may be the extent of their jurisdiction over the subject matter of suits, in respect to persons and property; it can only be exercised within the limits of the [federal judicial] district. Congress might have authorized civil process from any circuit court, to have run into any state of the Union. It has not done so.") ;
30. see also Miss. Publ'g Corp. v. Murphree, 326 U. S. 438, 442 (1946) ;
31. Robertson v. R. R. Labor Bd., 268 U. S. 619, 622 (1925).
32. See Fed. R. Civ. P. 4 (k) (2) advisory committee notes to 1993 amendment (explaining that the Fifth Amendment, the basis of jurisdiction under Rule 4 (k) (2), "requires that any defendant have affiliating contacts with the United States sufficient to justify the exercise of personal jurisdiction over that party").
33. This includes the so-called 100-mile Bulge Rule of Rule 4 (k) (1) (B), which currently permits personal jurisdiction over Rule 14 and Rule 19 parties served in a judicial district within 100 miles of the summoning courthouse. Under the proposed rule, parties so served would be constitutionally subject to jurisdiction in the United States based on having been served with process within the country's borders.
34. See Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 628 (1990) (upholding the constitutionality of personal jurisdiction based on in-state service of process). That said, it is open to question whether jurisdiction over corporations would be constitutional solely based on service within the United States since Burnham left open the question of whether the instate service rule applied to corporations.
35. 4A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1102 (3d ed. 2002 & Supp. 2009) ("Service made upon a corporation, partnership, or other unincorporated association simply by delivering process to a corporate or comparable officer who happens to reside or be physically present in the state at the time the documents are served will not be effective to establish in personam jurisdiction, unless that entity also is doing business so as to be amenable to service of process and the assertion of jurisdiction in the forum state.").
36. But the same uncertainty could be said to exist under the current rule, which purports to authorize service over any Rule 14 or Rule 19 party served within 100 miles of the issuing courthouse, including corporations so served.
37. *4 (S. D. N. Y. Dec. 2, 2003) (using the bulge rule to authorize jurisdiction over a corporation in New York whose agent was served in Bridgeport, Connecticut).
38. See, e.g., 28 U. S. C. §§ 1391, 1404, 1406 (2006). In addition to the general venue statute, there are several other special venue statutes as well as venue provisions within the body of various substantive federal statutes.
39. See, e.g., id. 42 U. S. C. § 2000e-5 (f) (3) (employment discrimination claims) ;
40. id. 29 U. S. C. § 1132 (e) (2) (ERISA claims).
41. Id. 28 U. S. C. § 1391.
42. Id. § 1404 (a) ("For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."). Section 1406 similarly provides for a change of venue, though it presupposes an initial filing in an improper venue.
43. Id. § 1406 (a).
44. Hoffman v. Blaski, 363 U. S. 335, 344 (1960) ("If when a suit is commenced, plaintiff has a right to sue in that district, independently of the wishes of defendant, it is a district where [the action] might have been brought." (alteration in original) (internal quotation marks omitted)
45. (quoting Blaski v. Hoffman, 260 F.2d 317, 321 (7th Cir. 1958))).
46. § 1404 (a).
47. The factors that courts consider when evaluating a venue transfer request typically include the following: (1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of the parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, [and] (7) the relative means of the parties.
48. Employers Ins. of Wausau v. Fox Entm't Group, Inc., 522 F.3d 271, 275 (2d Cir. 2008) (alteration in original) (internal quotation marks omitted)
49. (quoting D. H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006)). Compare these factors with the factors the Court set forth in Asahi Metal Industry Co. v. Superior Court of California, Solano County: A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination "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."
50. U. S. 102, 113 (1987)
51. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 292 (1980)).
52. Hanna v. Plumer, 380 U. S. 460, 468 (1965) (indicating that "avoidance of inequitable administration of the laws" between federal and state court was one of the "twin aims" of the Erie doctrine) ;
53. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496 (1941) (holding that the conflict of laws rules to be applied by federal courts sitting in diversity are to be those of the forum state because "[o]therwise the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side").
54. Klaxon, 313 U. S. at 496.
55. Linda J. Silberman, Reflections on Burnham v. Superior Court: Toward Presumptive Rules of Jurisdiction and Implications for Choice of Law, 22 RUTGERS L. J. 569, 587 (1991) ("[A] nationwide service rule would exacerbate forum shopping since a litigant would search for the forum with the most favorable choice-of-law rules.").
56. The general venue statute includes a provision that permits venue in actions against aliens to be brought in any federal district. 28 U. S. C. § 1391 (d) (2006).
57. See generally Symeon C. Symeonides, Choice of Law in the American Courts in 2008: Twenty-second Annual Survey, 57 AM. J. COMP. L. 269 (2009) (describing the various approaches to choice of law questions taken in the states and indicating that a preponderance tend to follow the Restatement (Second) or some variant of an interest analysis approach, or a traditional lex loci delicti approach).
58. This is so because a substantial part of the events giving rise to the action would have occurred in the relevant federal district in which the plaintiff was harmed.
59. See 28 U. S. C. § 1404 (a) (2006).
60. A conforming change would have to be made to subsection (b) of the statute as well.