Modern Doctrine on Personal Jurisdiction

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Although Pennoyer's physical presence test informed the Supreme Court’s jurisprudence related to jurisdiction for several decades, a significant expansion of the U.S. economy in the mid-twentieth century altered that focus. As commerce and travel among the states and between the states and foreign countries increased,1 corporations expanded the geographical scope of their activities.2 A more interconnected, global economy meant that a corporation’s activities had greater potential to cause harm in distant jurisdictions, but also meant that businesses could more easily defend lawsuits arising from that harm in distant fora.3 Faced with these new realities, the Court reconsidered the nature of the due process limitations on the jurisdiction of state courts over non-resident individuals and corporations that conducted activities in the states.4 In the 1945 case International Shoe Co. v. Washington, the Court explained its rejection of a strict adherence to the physical presence test, holding that a state could authorize its courts to subject an out-of-state entity to in personam jurisdiction, consistent with due process, and thus require it to defend a lawsuit, if that entity had “certain minimum contacts” with the forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” 5 The Court rested its holding in part on the notion that an entity conducting activities in a state benefits from the protections of state law, and thus should have to respond to legal complaints arising out of its actions in the forum even if it is not “physically present” in the state.6

Thus, the Supreme Court’s opinions in International Shoe and subsequent cases have established a more flexible two-part test for determining when a court’s exercise of personal jurisdiction over a nonresident defendant sued by a plaintiff comports with due process: (1) the defendant has established minimum contacts with the forum state that demonstrate an intent to avail itself of the benefits and protections of state law; and (2) it is reasonable to require the defendant to defend the lawsuit in the forum.7

Nevertheless, as noted, the Court has confirmed that several traditional bases for exercising judicial power over a nonresident defendant continue to enjoy a presumption of constitutionality without requiring an independent inquiry into the contacts among the defendant, the forum, and the litigation. Specifically, the traditional bases for jurisdiction include if: (1) the defendant is domiciled in the forum state (e.g., a defendant who is a natural person intends to establish a permanent home in the forum or a corporation intends to establish a permanent headquarters);8 (2) the defendant has consented to jurisdiction;9 or (3) a defendant who is a natural person is served with process while he is physically present—even temporarily—within the forum.10 The Court has also indicated that a state court may adjudicate the personal status of a plaintiff in relation to the defendant (e.g., marital status) without considering whether personal jurisdiction over the defendant is constitutionally valid.11

On June 27, 2023, the Supreme Court issued a decision in Mallory v. Norfolk Southern Railway Co., 12 holding that Pennsylvania had not violated the Fourteenth Amendment’s Due Process Clause by requiring an out-of-state railroad company to consent to general personal jurisdiction and defend against a negligence lawsuit that did not arise out of the company’s activities in the Commonwealth in order to conduct business in the state.13 Relying on its 1917 precedent in Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 14 the Court upheld the relevant provisions of Pennsylvania’s corporate registration law, noting that they imposed the same “benefits and burdens” on domestic corporations.15

1: See Hanson, 357 U.S. at 250–51 ( “As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome.” ); McGee v. Int’l Life Ins. Co., 355 U.S. 220, 222–23 (1957) (noting a “clearly discernible” trend “toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents” that was “attributable to the fundamental transformation of our national economy over the years” ).
2: See supra note 1.
3: See supra note 1.
4: See supra note 1. The Supreme Court has not drawn a bright line between its jurisprudence addressing persons and its cases addressing corporations. However, some commentators have argued that the Court’s recent opinions have been more solicitous toward corporate defendants. See, e.g., Judy M. Cornett & Michael H. Hoffheimer, Good-bye Significant Contacts: General Personal Jurisdiction After Daimler AG v. Bauman, 76 Ohio St. L.J. 101, 107 (2015) ( “[T]he Court has moved too far, too fast towards limiting the traditional powers of states to require nonresident corporations to answer lawsuits in their courts.” ); Thomas C. Arthur & Richard D. Freer, Be Careful What You Wish For: Goodyear, Daimler, and the Evisceration of General Jurisdiction, 64 Emory L.J. Online 2001, 2002 (2014) ( “[T]he Court’s decisions in these two cases leave a large gap in the appropriate scope of state adjudicatory jurisdiction, putting some plaintiffs at risk of being unable to bring a defendant to justice in an American court.” ). On the other hand, other commentators have defended the recent change in the Court’s decisions, asserting that it will bring more clarity and cohesion to the doctrine of personal jurisdiction and reduce unfairness to defendants. E.g., William Grayson Lambert, The Necessary Narrowing of General Personal Jurisdiction, 100 Marq. L. Rev. 375, 378 (2016) ( “Contrary to the weight of this body of scholarship on the ‘at home’ rule of Goodyear and Daimler AG, I argue that this new rule is a welcome change to general personal jurisdiction for two reasons. First, the ‘at home’ rule is clear. It provides an easy-to-apply rule that will minimize resources expended litigating an issue other than the merits of a case. Second, the ‘at home’ rule is more logically coherent because it promotes internal consistency in personal jurisdiction decisions. No matter which justification of personal jurisdiction one adopts from among the myriad justifications that the Supreme Court has offered, the ‘at home’ rule fits neatly within that framework.” ); Case Comment, Personal Jurisdiction—General Jurisdiction—Daimler AG v. Bauman, 128 Harv. L. Rev. 311, 316 (2014) ( “Closer examination of Daimler, however, reveals that Justice Ginsburg is not operating from formalist or ideological conceptions of when jurisdiction ought to be exercised. Rather, she has adopted a different philosophical framework, drawn from the pioneering work of von Mehren and Trautman, that focuses fundamentally on fairness to both parties. Starting with her opinions in Goodyear and Nicastro, Justice Ginsburg has consistently applied this framework.” ).
5: Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation and internal quotation marks omitted). The Court deemed a corporation’s “presence” in the forum state to result from those activities of the corporation or its agents in the state “which courts will deem to be sufficient to satisfy the demands of due process.” Id. at 317. The Court wrote that the concept of constitutional due process did “not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.” Id. at 319.
6: Id. ( “[T]o the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.” ).
7: World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) ( “[A] state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State.” ) (citing Int’l Shoe Co., 326 U.S. at 316); id. at 292 ( “[T]he defendant’s contacts with the forum State must be such that maintenance of the suit ‘does not offend traditional notions of fair play and substantial justice.’” ) (quoting Int’l Shoe Co., 326 U.S. at 316). See also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) ( “So long as a commercial actor’s efforts are ‘purposefully directed’ toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.” ).
8: Milliken v. Meyer, 311 U.S. 457, 462–63 (1940) ( “Domicile in the state is alone sufficient to bring an absent defendant within the reach of the state’s jurisdiction for purposes of a personal judgment by means of appropriate substituted service . . . . The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties.” ); Blackmer v. United States, 284 U.S. 421, 438 (1932) (holding that the United States retains in personam jurisdiction over its citizens living abroad) (citation omitted).
9: “Consent” may be express or implied. See, e.g., Nat’l Equip. Rental v. Szukhent, 375 U.S. 311, 318 (1964) (holding that defendant lessee’s contractual appointment of an agent to receive service of process on the lessee’s behalf amounted to consent to the personal jurisdiction of the courts of New York when the agent was served with process and notified the lessee); Hess v. Pawloski, 274 U.S. 352, 355–56 (1927) (upholding service of process on a nonresident defendant under a state law providing that a person who drove a vehicle on a public highway in the state implicitly consented to the appointment of a state official as agent for service of process for lawsuits arising outside of accidents attending such operation). See also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594–95 (1991) (holding that plaintiffs’ notice and acceptance of a forum-selection clause in a contract for passage on a cruise ship constituted consent to the exercise of personal jurisdiction by Florida courts over the plaintiffs in a personal injury action); Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972) (determining that a forum-selection clause in a contract that selected a foreign court for the resolution of disputes between the parties could not deprive a U.S. court of jurisdiction, but that the U.S. court should nonetheless enforce the clause by dismissing the case unless the clause was unreasonable, unfair, or unjust).
10: Burnham v. Superior Court, 495 U.S. 604, 619 (1990) (plurality opinion) ( “[J]urisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of ‘traditional notions of fair play and substantial justice.’” ). Providing the fifth and deciding vote in Burnham, Justice White, in an opinion concurring in the judgment, argued that a particular basis for jurisdiction could not be constitutionally valid merely because of its historical pedigree, and that fairness to the defendant must also be considered. Id. at 629 (White, J., concurring).
11: Pennoyer v. Neff, 95 U.S. 714, 734 (1877) ( “[W]e do not mean to assert, by any thing we have said, that a State may not authorize proceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the State, though made without service of process or personal notice to the non-resident.” ), overruled in part by, Shaffer v. Heitner, 433 U.S. 186 (1977).
12: No. 21-1168 (U.S. June 27, 2023)
13: Id. at 2, 11.
14: Id. at 4 (citing 243 U.S. 93, 95 (1917)).
15: Id. at 11.