Minimum Contact Requirements for Personal Jurisdiction

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Since its 1945 decision in International Shoe, the Supreme Court has elaborated on the nature and quality of the minimum contacts that a defendant must have with the forum in order for a court to subject him or her to personal jurisdiction in that forum consistent with due process. When determining whether a defendant has minimum contacts with the forum, the Court has distinguished the types of contacts sufficient for a court’s exercise of “general” personal jurisdiction over the defendant from those contacts sufficient for its exercise, alternatively, of “specific” jurisdiction.

A court’s exercise of specific jurisdiction may be constitutional when the defendant has contacts with the forum that give rise to, or are related to, the plaintiff’s cause of action (e.g., an act or occurrence caused by the defendant that takes place in the forum or has an impact there).1 However, when there is “no such connection [between the forum and the particular claims at issue], specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.” 2

By contrast, a state court’s exercise of general jurisdiction over a nonresident defendant for any claim—even if all the incidents underlying the claim occurred in a different state—may be constitutional when the defendant’s activities in the forum state are so substantial that it is reasonable to require it to defend a lawsuit that did not arise out of its activities in the forum state and is unrelated to those activities.3 Perhaps in order to ensure greater predictability for defendants attempting to discern where they may be subject to suits on claims arising anywhere in the world,4 in more recent years, the Court has significantly limited the types of activities or affiliations of the defendant in the forum state sufficient for general jurisdiction, holding that those contacts must be so substantial as to render the defendant “essentially at home” in the forum state.5 The Court has clarified that, absent exceptional circumstances, a corporate defendant is “at home” when it is incorporated in the forum state or maintains its principal place of business there.6 Insubstantial in-state business, in and of itself, does not suffice to permit an assertion of jurisdiction over claims that are unrelated to any activity occurring in a state.7 For example, the Court in 2017 held in BNSF Railway v. Tyrrell that Montana courts could not exercise general jurisdiction over a railroad company that had over 2,000 miles of track and more than 2,000 employees in the state because the company was not incorporated or headquartered in Montana and the overall activity of the company in Montana was not “so substantial” as compared to its activities throughout all of the jurisdictions in which it conducted business so as to render the corporation “at home” in the state.8

Although the Supreme Court has decided only a few cases that explore the scope of general personal jurisdiction since its opinion in International Shoe, leaving the bulk of such determinations to lower federal and state courts, it has decided several cases elaborating on the quality and nature of the defendant’s contacts with the forum and litigation necessary for a court’s exercise of specific jurisdiction over the defendant.9 A common theme throughout many of these decisions is that “unilateral activity” in the forum state by a person who has some family, business, or other relationship with a nonresident defendant will not suffice to establish a defendant’s minimum contacts with the forum.10 In other words, jurisdiction is not proper merely because the defendant could have foreseen that a third party with which it has a family or business relationship (e.g., a defendant’s family member or customer of a defendant corporation) would have contacts with the forum.11 Rather, the defendant must “purposefully avail” itself “of the privilege of conducting activities within the forum State,” thus invoking the benefits and protections of its laws.12 The defendant must have reasonably anticipated being haled into court there—a standard that potentially allows a defendant to predict where it will be subject to suit and plan the geographic scope of its activities or insure against the risk of being sued in a distant forum accordingly.13 The Court has also emphasized that the minimum contacts inquiry should not focus on the location of the resulting injury to the plaintiff; instead, the proper question is whether the defendant’s conduct connects him to the forum in a meaningful way.14

Since the Supreme Court decided International Shoe in 1945, many of its decisions on the minimum contacts test have addressed specific categories of contacts between the defendant and forum, such as the alleged tortious conduct of the defendant in the forum state; a contract between the defendant and an entity in the forum state; a business relationship between the defendant and a party in the forum state; and property interests of the defendant in the forum state. For example, in cases in which the plaintiff alleged that a nonresident had committed the tort of libel causing harm in the forum state, the Court upheld the exercise of specific personal jurisdiction over a defendant that intentionally targeted the state with publication of allegedly libelous material.15 The Court determined that regularly publishing a widely circulated magazine with knowledge that harm could occur to the state’s residents amounted to a sufficient contact between the defendant, the forum, and the litigation.16 As a result, the Court has recognized that, provided there is a sufficient connection between the defendant and the forum, states have a “significant interest” in permitting their courts to exercise jurisdiction over defendants in order to redress harm that occurs within state boundaries.17

Particularly since the 1980s, there has been disagreement among the Supreme Court Justices, however, as to when a nonresident corporation whose product causes injury within the forum state has “purposefully availed” itself of the privilege of conducting business within the state, and should therefore be subject to personal jurisdiction in that state in a tort action for products liability. In the 1987 case Asahi Metal Industry Co. v. Superior Court, four Justices agreed that a nonresident defendant’s awareness that a product it manufactured would end up in the forum state through its intentional placement of the product in the stream of commerce outside of the forum did not by itself constitute an act directed at the forum sufficient for specific personal jurisdiction.18 Writing for a plurality of the Court, Justice O’Connor maintained that a tribunal lacked the authority to exercise personal jurisdiction over a defendant that had not performed additional actions in the forum state that demonstrated an intent to serve that state’s market.19 According to her plurality opinion, because the defendant did not have clear notice that it could be subject to suit in California, it would have been unfair to subject the defendant to suit there.20 However, another four Justices would have held that the defendant’s intentional placement of a product into the stream of commerce by itself was sufficient for personal jurisdiction because the defendant could foresee being sued in any state in which the product was regularly sold and marketed.21 Those Justices would have grounded this result in the benefits that defendants derive from the regular retail sale of their products in the forum and the protections of state law.22

The Justices’ disagreement over when a nonresident corporation whose product causes injury within the forum state has “purposefully availed” itself of the privilege of conducting business within the state, and should therefore be subject to personal jurisdiction in that state in a tort action for products liability, appears to remain unresolved after a 2011 case. In J. McIntyre Machinery, Ltd. v. Nicastro, a plurality of the Court indicated that a foreign manufacturer of a product cannot be subject to the jurisdiction of a state court based on its mere expectation that the products it manufactures in its home country and ships to an independent U.S. distributor might be distributed in the forum state.23 Instead, according to the plurality written by Justice Kennedy and joined by Chief Justice Roberts, Justice Scalia, and Justice Thomas, the defendant must have directly targeted the individual state with its goods, thereby “purposefully availing” itself of the privilege of conducting in-state business.24 However, the plurality’s view did not command a majority of the Court, and a narrower concurring opinion authored by Justice Breyer and joined by Justice Alito would have found jurisdiction lacking under any of the various tests for personal jurisdiction articulated in the Justices’ opinions in Asahi because the shipment of products into, or their sale in, the forum state did not occur regularly, and there was no additional sales-related conduct (e.g., marketing) by the defendant in the forum.25

In addition to addressing cases involving a defendant’s alleged tortious conduct, the Supreme Court has also addressed minimum contacts in the context of out-of-state defendants reaching out to a forum state to establish a continuing business relationship in that state. For example, the Court upheld a California court’s exercise of specific personal jurisdiction over a Texas mail order insurance company that had no office or agent in California because the Texas company mailed an offer of insurance to the plaintiff’s son in California.26 The son accepted the offer and continued to send the company premium payments through the mail to Texas from California until the son died in California.27 The Court noted that the suit arose from a contract that had a “substantial connection” with California, holding that the state had a significant interest in providing redress for its residents in cases in which insurance companies refuse to pay claims.28 Similarly, when a nonresident defendant establishes an office in a state to conduct business through agents in the state, he may have to answer a lawsuit related to those business activities when an agent is served in the forum, regardless of whether he consented to service of process through his agent.29

Another context in which the Supreme Court has addressed the minimum contacts test involves contractual disputes between the parties to a lawsuit. Thus, when a franchisor headquartered in Florida brought suit in a local federal court against Michigan franchisees for the alleged breach of a franchise agreement to make required payments in Florida, the Court held that specific jurisdiction over defendants was proper based on the specific circumstances surrounding the contractual relationship.30 The Court stated that a contract between an out-of-state party and an individual in the forum state is insufficient by itself to establish personal jurisdiction if the contract lacks a substantial connection to the state as established by, among other things, an (1) examination of the parties’ prior negotiations (e.g., whether the defendant reached into the forum to negotiate the contract); (2) the terms of the contract (e.g., where payments were to be made and which state’s law was to govern); and (3) the course of dealing (e.g., whether the defendant established a “substantial and continuing relationship” in the forum state).31

The Court has also opined on when a defendant’s property interests in the forum may serve as a contact for purposes of personal jurisdiction. In Shaffer v. Heitner, the Supreme Court held that a state court could not exercise quasi in rem jurisdiction over a nonresident defendant by attaching the defendant’s property interests in the state without inquiring separately into whether these property interests and any other connections between the defendant, forum, and litigation established sufficient minimum contacts to satisfy the first prong of the International Shoe test.32 Thus, a Delaware court could not subject nonresident officers and directors of a Delaware corporation to personal jurisdiction for the alleged breach of duties to the corporation based solely on the court’s attachment of their stock and stock options in the corporation.33 The Court noted that jurisdiction over property must in fact have a direct effect on the interests of the defendant in that property and therefore affect its personal rights.34 However, the Court also noted that in some cases, such as cases establishing title to real property, ownership of the property itself may establish sufficient contacts among the defendant, forum, and litigation.35

1: Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984) ( “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.” (citing Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1144–1164 (1966)); Int’l Shoe Co. v. Washington, 326 U.S. 310, 317 (1945) ( “Presence in the state . . . has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on.” ) (internal quotation marks omitted).
2: Bristol-Myers Squibb Co. v. Superior Court, No. 16-466, slip op. at 7 (U.S. June 19, 2017) (concluding that the California Supreme Court erred in employing a “relaxed” approach to personal jurisdiction by holding that a state court could exercise specific jurisdiction over a corporate defendant who was being sued by non-state residents for out-of-state activities solely because the defendant had “extensive forum contacts” unrelated to the claims in question).
3: See Helicopteros, 466 U.S. at 414 n.9 ( “When a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum, the State has been said to be exercising ‘general jurisdiction’ over the defendant.” ); see also id. at 416 (holding that a Texas court could not exercise general personal jurisdiction over a foreign corporation that did not have a place of business in Texas and had only limited contacts with the state involving in-state purchases and training trips); Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 438, 415, 445 (1952) (holding that an Ohio court could subject a Philippine mining corporation to personal jurisdiction even though the “cause of action sued upon did not arise in Ohio and d[id] not relate to the corporation’s activities there” because of the corporation’s substantial activities within the state, including “directors’ meetings, business correspondence, banking, stock transfers, payment of salaries, [and] purchasing of machinery.” ).
4: Daimler AG v. Bauman, 571 U.S. 117 (2014) ( “If Daimler’s California activities sufficed to allow adjudication of this Argentina-rooted case in California, the same global reach would presumably be available in every other State in which MBUSA’s sales are sizable. Such exorbitant exercises of all-purpose jurisdiction would scarcely permit out-of-state defendants ‘to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.’” ) (quoting Burger King, 471 U.S. at 472)).
5: Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 924 (2011) (holding that foreign subsidiaries of Goodyear USA lacked sufficient contacts with the state of North Carolina that would support the exercise of general personal jurisdiction over them because the subsidiaries were not incorporated in California and did not have their principal place of business there). See also Daimler AG, 571 U.S. at 139 (holding that Daimler Chrysler, a German public stock company, could not be subject to suit in California with respect to acts taken in Argentina by an Argentinian subsidiary of Daimler, notwithstanding the fact that Daimler Chrysler had a U.S. subsidiary that did business in California, because Daimler was not incorporated in California and did not have its principal place of business there).
6: Goodyear, 564 U.S. at 924 (noting an individual’s domicile and a corporation’s place of incorporation or principal place of business as “paradigm” bases for general jurisdiction) (citation omitted); id. at 930 n.6 ( “[E]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales.” ).
7: See BNSF Ry. v. Tyrrell, No. 16-405, slip op. at 11–12 (U.S. May 30, 2017).
8: Id.
9: Goodyear, 564 U.S. at 924 ( “Since International Shoe, this Court’s decisions have elaborated primarily on circumstances that warrant the exercise of specific jurisdiction, particularly in cases involving ‘single or occasional acts’ occurring or having their impact within the forum State.” ). The Supreme Court has not yet specifically addressed the extent to which Congress might intervene through the enactment of legislation to provide that certain activities of a foreign defendant constitute sufficient minimum contacts for the exercise of personal jurisdiction over a foreign defendant.
10: Rep. of Arg. v. Weltover, Inc., 504 U.S. 607, 619–20 (1992) (holding that a foreign country defendant had minimum contacts with the United States when it unilaterally rescheduled the maturity dates of bonds it had issued because the bonds were denominated in U.S. dollars, the bonds were payable in New York, and the country had appointed a financial agent in that city); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287 (1980) (holding that New York residents’ car accident in Oklahoma involving a car they purchased in New York was insufficient by itself to establish contacts with Oklahoma of nonresident automobile retailer and wholesale distributor in products-liability action); Hanson v. Denckla, 357 U.S. 235, 253–54 (1958) (holding, in a case involving the validity of a trust agreement, that the settlor of a trust’s exercise of her power of appointment in Florida was insufficient to establish nonresident trustees’ contacts with, and purposeful availment of, that forum).
11: World-Wide Volkswagen Corp., 444 U.S. at 295 ( “Yet ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.” ).
12: Kulko v. Superior Court, 436 U.S. 84, 94 (1978) (holding that a New York resident sending his daughter to live with her mother in California, contrary to the requirements of a separation agreement, did not establish the defendant’s minimum contacts with that state supporting the exercise of personal jurisdiction over him as he did not purposefully derive benefits from that activity).
13: World-Wide Volkswagen Corp., 444 U.S. at 297–98 (offering the example of a state court properly asserting personal jurisdiction over a company “that delivers its products into the stream of commerce with the expectation that they will be purchased . . . in the forum State” ).
14: Walden v. Fiore, 571 U.S. 277, 284–87 (2014) (concluding that a federal court in Nevada lacked personal jurisdiction over a federal law enforcement officer in a lawsuit stemming from an incident at an airport in Atlanta involving Nevada residents).
15: Calder v. Jones, 465 U.S. 783, 788–91 (1984) (concluding that a California court had jurisdiction over a suit involving an alleged libelous article written and edited by defendants in Florida with calls to sources in California that allegedly caused harm to plaintiff California resident’s reputation in that state because of the magazine’s wide circulation in that state); Keeton v. Hustler Mag., Inc., 465 U.S. 770, 773–74 (1984) ( “Respondent’s regular circulation of magazines in the forum State is sufficient to support an assertion of jurisdiction in a libel action based on the contents of the magazine.” ). See also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011) (plurality opinion) ( “[I]n some cases, as with an intentional tort, the defendant might well fall within the State’s authority by reason of his attempt to obstruct its laws.” ).
16: E.g., Keeton, 465 U.S. at 773–74.
17: Id. at 776 (noting that false publications in a state injure the subject of the false statements and mislead consumers residing in the state and declaring that “it is beyond dispute that New Hampshire has a significant interest in redressing injuries that actually occur within the State” ).
18: Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 105 (1987) ( “This case presents the question whether the mere awareness on the part of a foreign defendant that the components it manufactured, sold, and delivered outside the United States would reach the forum State in the stream of commerce constitutions ‘minimum contacts’ between the defendant and the forum State such that the exercise of jurisdiction ‘does not offend traditional notions of fair play and substantial justice.’” ); id. at 112 (plurality opinion) ( “The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.” ).
19: See id. at 110–13 ( “Assuming, arguendo, that respondents have established Asahi’s awareness that some of the valves sold to Cheng Shin would be incorporated into tire tubes sold in California, respondents have not demonstrated any action by Asahi to purposefully avail itself of the California market. Asahi does not do business in California. It has no office, agents, employees, or property in California. It does not advertise or otherwise solicit business in California. It did not create, control, or employ the distribution system that brought its valves to California. There is no evidence that Asahi designed its product in anticipation of sales in California. On the basis of these facts, the exertion of personal jurisdiction over Asahi by the Superior Court of California exceeds the limits of due process.” ) (footnote and internal citations omitted).
20: Id.
21: Id. at 117 (Brennan, J., concurring in part and concurring in the judgment) ( “The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” ). Justice Stevens authored a concurring opinion in which he maintained that the plurality’s minimum contacts analysis was unnecessary but suggested that the Court should have included in its analysis an examination of the “volume,” “value,” and “hazardous character” of the products at issue to determine whether the defendant had purposefully availed itself of the forum. Id. at 121–22 (Stevens, J., concurring in part and concurring in the judgment).
22: Id. at 117 (Brennan, J., concurring in part and concurring in the judgment).
23: Nicastro, 564 U.S. at 882 (plurality opinion) ( “The defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.” ). In Nicastro, a metal-shearing machine manufactured in England by a company incorporated there allegedly caused injury to a person in New Jersey. Id. at 878. The company that made the machine, J. McIntyre Machinery, had relied upon an independent U.S. company to distribute the machine in the United States. Id.
24: Id.
25: Id. at 889 (Breyer, J., concurring in the judgment).
26: McGee v. Int’l Life Ins. Co., 355 U.S. 220, 221–22 (1957).
27: Id.
28: Id. at 223.
29: Henry L. Doherty & Co. v. Goodman, 294 U.S. 623, 625, 628 (1935).
30: Burger King Corp. v. Rudzewicz, 471 U.S. 462, 464, 479 (1985).
31: Id. at 478–87.
32: Shaffer v. Heitner, 433 U.S. 186, 189, 216–17 (1977).
33: Id. at 189–92, 216–17.
34: Id. at 207, 212 ( “The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant.” ).
35: Id. at 207–08.