Getting Personal With Our Neighbors- a Survey of Southern States' Exercise of General Jurisdiction and a Proposal for Extending Georgia's Long-arm Statute
| Publication year | 2010 |
Georgia State University Law Review
Article 1
3-21-2012
Getting Personal with Our Neighbors- A Survey of Southern States' Exercise of General Jurisdiction and a Proposal for Extending Georgia's Long-Arm Statute
Robert L. Ashe
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Recommended Citation
Ashe, Robert L. (2008) "Getting Personal with Our Neighbors- A Survey of Southern States' Exercise of General Jurisdiction and a Proposal for Extending Georgia's Long-Arm Statute," Georgia State University Law Review: Vol. 25: Iss. 4, Article 1. Available at: http://digitalarchive.gsu.edu/gsulr/vol25/iss4/1
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Ashe: Getting Personal with Our Neighbors- A Survey of Southern States'
GETTING PERSONAL WITH OUR NEIGHBORS—A SURVEY OF SOUTHERN STATES' EXERCISE OF
GENERAL JURISDICTION AND A PROPOSAL FOR EXTENDING GEORGIA'S LONG-ARM STATUTE
Robert L. Ashe III/ Austin M. Hall,+ and Avery S. Jackson
Introduction
This note analyzes the exercise of personal jurisdiction over nonresident defendants by Georgia and neighboring Southern jurisdictions, focusing on their use of their long-arm statutes and service of process requirements (whether embodied in statute or court rule).1 The specific focus is whether the covered jurisdictions permit their courts to exercise so-called general jurisdiction—in other words, personal jurisdiction over a nonresident defendant in an action not arising from the defendant's contacts with the forum state.
This Note starts by presenting an abbreviated history of the United States Supreme Court's major decisions relating to state courts' exercise of personal jurisdiction over nonresident defendants, with particular attention to the three cases in which the United States Supreme Court has discussed general jurisdiction. This Note then examines the long-arm laws and, where relevant, service of process
* Mr. Ashe graduated from the Georgia State University College of Law in May 2009 where he was a Legislative Editor of the Law Review. He practices law at Bondurant, Mixson & Elmore LLP in Atlanta and is a certified barbeque judge.
+ Mr. Hall graduated from the Georgia State University College of Law in May 2009 where he was a Lead Articles Editor of the Law Review.
0 Mr. Jackson is an associate at the firm of Tisinger Vance, P.C., in Carrollton, Georgia. He graduated from the Georgia State University College of Law in May 2008.
1. See infra section II.
2. For a discussion of general jurisdiction, see Robert C. Casad & William M. Richman, jurisdiction in civil actions 139-44 (3d ed. 1998). For criticism of the concept of general jurisdiction, see generally Mary Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev. 610 (1988).
3. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984); Burnham v. Superior Court of Cat, 495 U.S. 604 (1990). For discussion of these cases, see infra text accompanying notes 30-40.
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rules in Georgia and other Southern states to understand contemporary practices.4 The jurisdictions are categorized on the basis of whether they permit their courts to exercise general jurisdiction and, if so, under what circumstances.5 For each jurisdiction, the relevant statutes, regulations, and case law are evaluated to determine how the exercise of jurisdiction is authorized.6 It concludes by proposing a revision to the Georgia long-arm statute, which would bring Georgia into line with the majority of states studied, by permitting Georgia courts to exercise personal jurisdiction to the limits imposed by the Due Process Clause of the 14th Amendment to the United States Constitution, including general jurisdiction.7
A. Background
The United States Supreme Court has over the years announced a variety of justifications for limiting the exercise of personal
q
jurisdiction by a state over a nonresident defendant. While this note does not remotely purport to describe or evaluate what the constitutional limits on the exercise of personal jurisdiction are, some understanding of United States Supreme Court precedent on this topic is useful in evaluating modem practices by the states. The evolution (or revolution) in the twentieth century away from the 'power' theory embodied in Pennoyer v. Neff towards an evaluation of whether the exercise of personal jurisdiction in a particular case would "offend 'traditional notions of fair play and substantial justice'" permitted states to adopt a variety of approaches towards the exercise of personal jurisdiction.9 Those approaches are the main topic of this Note. Specifically, the United States Supreme Court has
4. See infra section II.
5. See infra section II.
6. See infra section II.
7. See infra Section III.
8. Casad & RlCHMAN, supra note 2, at 67-178.
9. Pennoyer v. Neff, 95 U.S. 714 (1878); Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citing Milliken v. Meyer, 311 U.S. 457, 463 (1940)), discussed infra in the text accompanying notes 20-29.
affirmed and reaffirmed the existence of what it has described as general jurisdiction, namely a state's exercise of personal jurisdiction over a nonresident defendant in a cause of action not arising from that defendant's contacts with the forum state.10
In the beginning, there was Pennoyer, and it was good. Decided in 1878, Pennoyer v. Neff "for nearly a century served as the basic statement of the limits on state court jurisdiction imposed by the 14th Amendment due process clause."11 In striking down an Oregon state court judgment against a nonresident who did not appear in court, was not present in Oregon, and did not live in Oregon on the basis that the Oregon state court could not validly exercise personal jurisdiction over the nonresident, Pennoyer established that "due process essentially limits the personal jurisdiction of state courts to the three traditional bases of consent, presence, and domicile."12 The "territorial power theory" that Pennoyer embraced "treated the States as nearly independent sovereigns," and was focused almost entirely on the physical presence of the defendant or his property.13 The result of the focus on territorial power was that "a state has absolute power over defendants or property found within its territorial boundaries, regardless of the nature of the dispute."14 As a necessary corollary, a state had very little power over nonresidents who did not own property within its boundaries, and that limitation eventually "caused [the power theory from Pennoyer] to fall out of step with the realities of twentieth century life," particularly over corporate defendants.15
Some states used statutes requiring corporations doing business in their state "to appoint agents for service of process . . . and designate] a state official to receive such service if the corporation failed to appoint an agent" to create a Active form of corporate consent to jurisdiction.16 Another theory used was that a nonresident
10. See infra notes 30-41 and accompanying text.
11. Casad & Richman, supra note 2, at 68.
12. Id. at 68, 70.
13. Mat71-72.
14. Twitchell, supra note 2, at 619.
15. Casad & Richman, supra note 2, at 80.
16. Id. at 77; Twitchell, supra note 2, at 620.
corporation was "'present' wherever it was doing business and could be sued in the courts of that state just as a nonresident individual found there could be."17 These theories were used by some states to justify jurisdiction over corporate defendants not just in actions arising from the corporation's specific activities within the forum state, but also in other causes of action.18 As one commentator has noted, "the legacy of these rules is a strand of general jurisdiction theory that recognizes relatively unlimited jurisdiction over corporate and individual defendants having certain commercial ties with the forum."19
B. International Shoe Co. v. Washington
In 1945, the United States Supreme Court's decision in International Shoe Co. v. Washington began a "doctrinal revolution . . . best viewed as a shift in the conceptual basis of state-court jurisdiction from power towards fundamental fairness."20 In abandoning the requirement of the defendant's presence within the forum state, the Court established that due process would only require that a defendant not present in the forum state "have 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.'"21 The Court held that the demands of due process "may be met by such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there."22
In rejecting a "mechanical or quantitative" approach towards determining what contacts would suffice to justify the exercise of
17. Casad & RlCHMAN, supra note 2, at 78.
18. Id. at 77; Twitchell, supra note 2, at 621.
19. Twitchell, supra note 2, at 622.
20. CASAD & RlCHMAN, supra note 2, at 81.
21. Int'l Shoe Co. v. Washington, 326 U.S. 310,316 (1945) (citing Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
22. Id. at 317.
jurisdiction, the Court emphasized that courts must evaluate the "quality and nature of the [defendant's] activity in relation to the fair and orderly administration of the laws."23 The Court noted that when a corporation conducted activities within a state, it was enjoying the "benefits and protection of the laws of that state," and that the "exercise of that privilege may give rise to obligations."24 The Court went on to explain that...
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