PERSONAL JURISDICTION AND ALIENS.

Author:Dodge, William S.
 
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The increasing prevalence of noncitizens in U.S. civil litigation raises a fundamental question for the doctrine of personal jurisdiction: How should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal jurisdiction, in cases like Bristol-Myers Squibb Co. v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of personal jurisdiction over aliens. Under this theory, alienage status broadens the geographic range for minimum contacts from a single state to the whole nation. This national-contacts test applies to personal jurisdiction over an alien defendant whether the cause of action arises under federal or state law and whether the case is heard in federal or state court. We show that the test is both consistent with the Constitution and consonant with the practical realities of modern transnational litigation. We also explore the moderating influence of other doctrines, such as reasonableness, venue transfer, and forum non conveniens, on the expanded reach of our national-contacts test. In the end, we hope to articulate a more sensible and coherent doctrine of personal jurisdiction over alien defendants that will resonate with the Supreme Court.

INTRODUCTION I. ALIENAGE STATUS'S INFLUENCE ON PERSONAL JURISDICTION A. Specific Jurisdiction B. General Jurisdiction II. THE CASE FOR NATIONAL CONTACTS A. Due Process Rights of Alien Defendants B. Minimum Contacts in Alien-Defendant Cases 1. Fairness to Alien Defendants 2. Interstate Federalism and Alien Defendants C. The Benefits of a Special Rule for Aliens D. Foreign-Affairs Implications E. National Contacts for State Law and State Courts III. NATIONAL CONTACTS IN ACTION A. Reasonableness in State and Federal Courts B. Limits on Suits in Federal Courts C. Limits on Suits in State Courts D. Other Practical Protections CONCLUSION INTRODUCTION

Litigation in the United States is increasingly international. Of the five significant personal jurisdiction cases that the U.S. Supreme Court has decided since 2011, three have involved alien defendants. (1) In Goodyear Dunlop Tires Operations, S.A. v. Brown (2) and Daimler AG v. Bauman, (3) the Court used cases against alien defendants to limit general jurisdiction to those forums in which the defendant is essentially "at home"--for a corporation, its place of incorporation and its principal place of business. In J. McIntyre Machinery, Ltd. v. Nicastro, (4) the Court used a case against an alien defendant to try to resolve the question whether putting goods into the "stream of commerce" could establish the minimum contacts necessary for specific jurisdiction, although the Court failed to produce a majority opinion. (5) The presence of alien defendants in so many of these cases raises the question whether the due process limitations that the Fifth and Fourteenth Amendments impose on the exercise of personal jurisdiction should be the same for alien defendants as they are for domestic defendants.

Existing personal jurisdiction doctrine under the Due Process Clauses already differentiates alien defendants and domestic defendants in two ways. First, with respect to specific jurisdiction, Asahi Metal Industry Co. v. Superior Court (6) held that the exercise of personal jurisdiction over an alien defendant might be unreasonable despite the existence of minimum contacts: "The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders." (7) A recent survey of post-Asahi cases concludes "that courts in practice only dismiss on reasonableness grounds where the defendant is foreign, whereas they effectively never dismiss domestic defendants on grounds of reasonableness." (8) Second, with respect to general jurisdiction, Goodyear and Daimlers "at home" test affects alien and domestic defendants differently: while domestic defendants will be subject to general jurisdiction in at least one U.S. state, (9) alien defendants will almost never be subject to general jurisdiction in any U.S. state. (10) Supreme Court case law therefore leaves specific jurisdiction as the only alternative for personal jurisdiction over aliens in U.S. courts.

Despite these differences in the treatment of alien and domestic defendants, the conventional approach to the minimum-contacts requirement of personal jurisdiction is that state courts, and federal courts exercising personal jurisdiction under Rule 4(k)(1)(A), (11) apply the same standard to both alien and domestic defendants. (12) Specifically, to satisfy the minimum-contacts requirement, a court may rely only on contacts with the specific state in which the court sits. (13)

The Supreme Court's recent decision in J. McIntyre Machinery, Ltd. v. Nicastro (14) provides an illustration. The defendant, a British manufacturer, sold metal-shearing machines throughout the United States through an Ohio distributor. (15) One machine ended up in New Jersey, where it injured the plaintiff. (16) The Court held that New Jersey state courts could not exercise personal jurisdiction because the defendant lacked minimum contacts with New Jersey. (17) Reflecting the conventional approach, Justice Kennedy wrote for a plurality of four justices: "[P]ersonal jurisdiction requires a forum-by-forum, or sovereign-by-sovereign, analysis." (18) Writing for three justices in dissent, Justice Ginsburg challenged the conventional approach by pointing out that the defendant, by engaging a U.S. distributor, " 'purposefully availed itself of the United States market nationwide, not a market in a single State or a discrete collection of States." (19) Justice Breyer, joined by Justice Alito, wrote a narrow concurring opinion. While he seemed to agree with the plurality that existing precedents required minimum contacts with New Jersey, (20) he also suggested that different rules might properly apply to different kinds of defendants and, specifically, that the alienage of the defendant might make a difference. (21)

We urge reconsideration of the conventional approach for alien defendants. We argue that the relevant forum for determining an alien's minimum contacts should be the United States as a whole rather than the particular state in which the court sits. As we explain, both the fairness component and the interstate-federalism component of personal jurisdiction support a national-contacts approach for alien defendants.

Under the fairness component, the critical question from the alien defendant's perspective is whether it must defend in the courts of the United States, not whether it must defend in any particular state. (22) As the Court recognized in Asahi, there are "unique burdens placed upon one who must defend oneself in a foreign legal system." (23) But from the alien defendant's point of view, the courts of New Jersey and Ohio are equally foreign.

Under the interstate-federalism component, whether the defendant is domestic or alien makes a great difference. A domestic defendant's home state enjoys general jurisdiction over it, and having another state assert jurisdiction without minimum contacts "would upset the federal balance, which posits that each State has a sovereignty that is not subject to unlawful intrusion by other States." (24) By contrast, because no state enjoys general jurisdiction over an alien defendant absent exceptionally unusual circumstances, one state's assertion of specific jurisdiction on the basis of national contacts "does noF26t tread on the domain, or diminish the sovereignty, of any other State." (25)

Separating the due process analyses for alien and domestic defendants would not only recognize these fundamental differences but would also relieve the Court from the concern that a national-contacts approach to alien-defendant cases would have unintended consequences in domestic-defendant cases. In McIntyre, Justice Breyer worried that permitting specific jurisdiction over the alien defendant would equally subject an Appalachian potter to suit in Hawaii. (26) But our theory acknowledges that due process permits different treatment of differently situated defendants. A U.S. plaintiff could sue the Appalachian potter only where the potter's contacts with a specific state satisfy either specific or general jurisdiction. That venue may not be Hawaii, but at least one U.S. court would be available and relatively familiar to the plaintiff. At the same time, a New Jersey plaintiff injured in New Jersey by a British manufacturer's product would not be barred from U.S. courts when the manufacturer's claim-related contacts with the United States as a whole satisfy due process.

Of course, fairness issues will still exist for some alien defendants, like Justice Breyer's "small Egyptian shirtmaker," or "Kenyan coffee farmer." (27) The point, however, is that the fairness issues in these cases are different from the fairness issues raised by the case of the Appalachian potter, and they ought to be treated differently. Some alien defendants will be protected as a practical matter by their lack of assets in the United States against which a judgment may be enforced, which will discourage many plaintiffs from bringing suit against them in the United States in the first place. (28) In cases where suit in the United States is still attractive, we show how the possibilities of venue transfer within the federal system and state dismissal under forum non conveniens help to mitigate Justice Breyer's concerns. (29)

Other authors have advocated a national-contacts approach in various contexts, including in federal but not state courts, (30) for federal but not state claims, (31) and under the Fifth but not the Fourteenth Amendment. (32) Our contribution to this literature is the...

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