“The Due Process Clause ‘does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations.’” Shaffer v. Heitner, 433 U.S. 186, 216 (1977) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)).
In its simplest form, personal jurisdiction is a threshold question of whether or not a court has the power to exercise control over – and ultimately enter a judgment against – a party who is not located in the state in which the court is located. While this seems simple enough, is proves difficult to determine in many cases involving parties doing business across state lines.
At the outset, in deciding whether personal jurisdiction is consistent with the Due Process Clause of the U.S. Constitution, it must be determined whether the defendant has “minimum contacts” with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities there. Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)). The “purposeful availment” requirement guarantees that the non-resident defendant will not be compelled to defend a suit in a jurisdiction solely on the basis of “random,” “fortuitous,” or “attenuated” contacts, or the “unilateral activity of another party or a third person.” Burger King, 471 U.S. at 475. Although not determinative, foreseeability is an important consideration in deciding whether the nonresident has purposefully established ‘minimum contacts’ with the forum state.” Id. at 474. In other words, a non-resident defendant’s conduct and connection with the forum state must be such that it should reasonably anticipate being compelled to defend a suit there. Id.
The “minimum contacts” analysis is further divided into general and specific jurisdiction. General jurisdiction is present when the defendant’s contacts are unrelated to the cause of action but are “continuous and systematic.” Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999). A court may assert general jurisdiction over a foreign corporation to hear any and all claims against it only when the corporation’s affiliations with the state in which suit is brought are so constant and pervasive as to render it essentially at home in the forum state. Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014). Therefore, general jurisdiction will not be exercised in every state in which a corporation engages in a substantial, continuous, and systematic course of business, even including sizeable sales in the forum. Id. at 761; See also, Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 411 (1984). This is such a high burden that courts virtually never find general jurisdiction over a defendant if it is not either incorporated or has its principal place of business in the forum state. See id. at 760-61.
Conversely, specific jurisdiction is proper where: (1) the defendant purposely directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities there; (2) the plaintiff’s cause of action arises out of or results from the defendant’s forum-related contacts; and (3) the exercise of personal jurisdiction is fair and reasonable. Nuovo Pignone, SpA, 310 F.3d at 378. This is the battleground where most fights over personal jurisdiction take place.
The sufficiency of minimum contacts turns on the quality and nature of the defendant’s activity in relation to the forum state, rather than any mechanical or quantitative test. Mississippi Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1006 (5th Cir. 1982). The forum state’s exercise of specific jurisdiction over an out-of-state intentional tortfeasor must be based on intentional conduct by the defendant that creates the necessary contacts with the forum. Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014).
Typically, the mere fact that a defendant felt the “effects” of an injury in the forum state is not alone a sufficient connection to the forum to form a basis for specific jurisdiction. Id. at 1125; See Calder v. Jones, 465 U.S. 783 (1984). The “effects” test is not a substitute for a nonresident’s minimum contacts that demonstrate purposeful availment of the benefits of the forum state. Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001). To the contrary, the effects of an alleged intentional tort are to be assessed as part of the analysis of the defendant’s relevant contacts with the forum.” Id. As such, foreseeable injury alone is not sufficient to confer specific jurisdiction, absent the direction of specific acts toward the forum. Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir. 1999). The “foreseeability that is critical to due process analysis … is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. (quoting Burger King, 471 U.S. at 474). Therefore, a conclusion that a defendant should “reasonably anticipate” being haled into the forum State requires “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,” or “purposefully directs” its efforts toward the forum State residents. Id. (quoting Burger King, 471 U.S. at 475-76).
As might be expected, determining personal jurisdiction is not always an easy task, and it necessarily requires the court to undertake a very fact-specific inquiry. The advent of the internet has made things even more complicated. For example, is the owner of a website – which is accessible to anyone, anywhere – subject to personal jurisdiction in any state where someone visits the website?
Both the Fifth Circuit – where Texas is located – as well as the majority of the Circuit Courts of Appeals have adopted the approach of the seminal case of Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997) in determining whether the operation of an internet site can support minimum contacts necessary for the exercise of specific jurisdiction over a defendant. Revell v. Lidov, 317 F.3d 467, 470 (5th Cir. 2002). Zippo used a “sliding scale” to measure an internet site’s connections to a forum state. Revell, 317 F.3d at 470. At the strong end of the spectrum, there are situations where a defendant clearly does business over the internet by entering into contracts with residents of other states which “involve the knowing and repeated transmission of computer files over the internet.” Mink, 190 F.3d at 336. In this situation, personal jurisdiction is proper. Id. At the weak end of the spectrum is the “passive” website, one that merely allows the owner to post information on the internet. Revell, 317 F.3d at 470. With passive websites, personal jurisdiction is not appropriate. Mink, 190 F.3d at 336. In the middle of the spectrum are websites which allow a user to exchange information with a host computer. Id. In the middle ground, the exercise of jurisdiction is determined by the level of interactivity and commercial nature of the exchange of information that occurs on the website. Id.
Finally, after a determination that a non-resident defendant has purposely established minimum contacts with the forum state, the court must determine whether the assertion of personal jurisdiction comports with “fair play and substantial justice” by evaluating the contacts in light of other factors. Burger King, 417 U.S. at 476. These factors include: (1) the burden on the defendant; (2) the interest of the forum state in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Id. at 477. Thus, the exercise of jurisdiction may not be fair and reasonable under the facts in a particular case, even where a defendant has purposely established minimum contacts with the forum state. Id. at 477-78.
© Eric C. Wood, 2016