Personal Jurisdiction and the Fairness Factor(s)

• Publication year: 2023

Personal Jurisdiction and the Fairness Factor(s)

Megan M. La Belle

Personal Jurisdiction and the Fairness Factor(s)

Cover Page Footnote

It has been more than seventy-five years since the Supreme Court decided International Shoe Co. v. Washington, yet questions surrounding the personal jurisdiction doctrine loom large. Over the past decade, the Roberts Court has issued a handful of personal jurisdiction opinions, including Ford Motor Co. v. Montana Eighth Judicial District Court, a case decided in 2021 that addressed an issue related to specific jurisdiction. What is more, courts across the country, including several state supreme courts, have been grappling with the question whether a corporation's registration to do business constitutes consent to personal jurisdiction in that state. This consent issue is particularly divisive in states like Georgia and Pennsylvania—where jurisdiction via registration is expressly provided for by statute. Indeed, over the past two years the Supreme Court of Georgia upheld the exercise of consent jurisdiction in Cooper Tire & Rubber Co. v. McCall, while the Supreme Court of Pennsylvania struck down its statute as unconstitutional in Mallory v. Norfolk Southern Railway Company. The conflicting decisions in McCall and Mallory have now teed up the consent-by-registration question for the U.S. Supreme Court. Under International Shoe's bifurcated test, personal jurisdiction over nonresident defendants comports with due process when the defendants have sufficient minimum contacts with the state and the exercise of jurisdiction is fair or reasonable. Until recently, the Roberts Court's personal jurisdiction jurisprudence relegated the fairness prong of this test to, at most, an afterthought. However, Ford bucks that trend, providing hope that courts will once again turn to fairness considerations when making tough calls on jurisdiction. Using Ford as a launching pad, this Article argues that fairness—specifically, the fairness factors first articulated in World-Wide Volkswagen Corp. v. Woodson—should be part of every jurisdictional calculus, whether the plaintiff is relying on specific jurisdiction, general jurisdiction, or one of the traditional grounds for personal jurisdictional such as consent by registration. Applying a uniform methodology to the flexible due process standard will improve the consistency and predictability of personal jurisdiction determinations over time, while still allowing courts to decide these questions on a case-by-case basis.

PERSONAL JURISDICTION AND THE FAIRNESS FACTOR(S) Megan M. La Belle^* ABSTRACT

It has been more than seventy-five years since the Supreme Court decided International Shoe Co. v. Washington, yet questions surrounding the personal jurisdiction doctrine loom large. Over the past decade, the Roberts Court has issued a handful of personal jurisdiction opinions, including Ford Motor Co. v. Montana Eighth Judicial District Court, a case decided in 2021 that addressed an issue related to specific jurisdiction. What is more, courts across the country, including several state supreme courts, have been grappling with the question whether a corporation's registration to do business constitutes consent to personal jurisdiction in that state. This consent issue is particularly divisive in states like Georgia and Pennsylvania—where jurisdiction via registration is expressly provided for by statute. Indeed, over the past two years the Supreme Court of Georgia upheld the exercise of consent jurisdiction in Cooper Tire & Rubber Co. v. McCall, while the Supreme Court of Pennsylvania struck down its statute as unconstitutional in Mallory v. Norfolk Southern Railway Company. The conflicting decisions in McCall and Mallory have now teed up the consent-by-registration question for the U.S. Supreme Court.

Under International Shoe's bifurcated test, personal jurisdiction over nonresident defendants comports with due process when the defendants have sufficient minimum contacts with the state and the exercise of jurisdiction is fair or reasonable. Until recently, the Roberts Court's personal jurisdiction jurisprudence relegated the fairness prong of this test to, at most, an afterthought. However, Ford bucks that trend, providing hope that courts will once again turn to fairness considerations when making tough calls on jurisdiction. Using Ford as a launching pad, this Article argues that fairness—specifically, the fairness factors first articulated in World-Wide Volkswagen Corp. v. Woodson—should be part of every jurisdictional calculus, whether the plaintiff is relying on specific jurisdiction, general jurisdiction, or one of the traditional grounds for personal jurisdictional such as consent by registration. Applying a uniform methodology to the flexible due process standard will improve the consistency and predictability of personal jurisdiction

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determinations over time, while still allowing courts to decide these questions on a case-by-case basis.

TABLE OF CONTENTS

INTRODUCTION..........................................................................................783

I. PERSONAL JURISDICTION DOCTRINE BEFORE INTERNATIONAL SHOE......................................................................789

A. Traditional Grounds for Personal Jurisdiction Before International Shoe................................................................... 789
B. International Shoe and the Minimum Contacts Test................. 792

II. PERSONAL JURISDICTION DOCTRINE AFTER INTERNATIONAL SHOE ... 794

A. The Minimum Contacts Test.................................................... 794

1. Specific Jurisdiction.......................................................... 794

a. Purposeful Availment ................................................. 795
b. Nexus Requirement..................................................... 803

2. General Jurisdiction ......................................................... 809

B. Traditional Grounds for Personal Jurisdiction........................ 816

1. In Rem Jurisdiction ........................................................... 816
2. Transient or "Tag" Jurisdiction........................................ 819
3. Consent to Jurisdiction ..................................................... 821

III. FAIR PLAY AND SUBSTANTIAL JUSTICE: THE "TOUCHSTONE" FOR PERSONAL JURISDICTION.........................................................832

A. The Fairness Factors .............................................................. 833
B. Fairness Factors for All Theories of Personal Jurisdiction...... 839

1. Specific Jurisdiction after Ford ......................................... 840
2. General Jurisdiction ......................................................... 843
3. Consent-by-Registration Jurisdiction ................................ 847

CONCLUSION.............................................................................................852

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INTRODUCTION

It has been more than seventy-five years since the Supreme Court decided International Shoe Co. v. Washington,¹ yet questions surrounding the personal jurisdiction doctrine loom large. Over the past decade, the Supreme Court has issued a handful of personal jurisdiction opinions, including Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer, two cases decided last term that address an issue related to specific jurisdiction.² What is more, courts across the country, including several state supreme courts, have been grappling with the question whether a corporation's registration to do business constitutes consent to personal jurisdiction in that state.³ This consent issue is particularly divisive in states like Georgia and Pennsylvania—where jurisdiction via registration is expressly provided for by statute.⁴ Indeed, over the past two years, the Supreme Court of Georgia upheld the exercise of consent jurisdiction in Cooper Tire & Rubber Co. v. McCall,⁵ while the Supreme Court of Pennsylvania struck down its statute as unconstitutional in Mallory v. Norfolk Southern Railway Co.⁶ The conflicting decisions in McCall and Mallory have now teed up the consent-by-registration question for the U.S. Supreme Court.

As the Supreme Court has taken an interest in personal jurisdiction recently, so have scholars. A good deal has been written about the Court's restriction of general jurisdiction in Goodyear Dunlop Tires Operations, S.A. v. Brown and Daimler AG v. Bauman;⁷ the arguably narrow interpretations of specific jurisdiction in J. McIntyre Machinery, Ltd. v. Nicastro and Bristol-Myers Squibb Co. v. Superior Court of California;⁸ and the various cases that have addressed the consent-by-registration issue.⁹ This Article takes a step back and considers the fundamental question that should underlie all personal jurisdiction decisions: When is the exercise of jurisdiction over an out-of-state defendant fair? Or, as the Supreme Court put it in International Shoe, when does jurisdiction over a nonresident comport with "traditional notions of fair play and substantial

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justice"?¹⁰ While the Supreme Court provided guidance on that question more than forty years ago,¹¹ widespread confusion about the role that fairness (or, reasonableness, as it is often called) ought to play in the personal jurisdictional analysis persists.

Historically, personal jurisdiction was limited by traditional conceptions of territorial power as pronounced in Pennoyer v. Neff.¹² This meant that only those nonresidents who consented or were served with process in the state (i.e., tagged) were subject to personal jurisdiction. That changed with the landmark decision in International Shoe, which established the minimum contacts test.¹³ The Court held that nonresident defendants could be subject to personal jurisdiction in states where they have sufficient minimum contacts and the exercise of jurisdiction "does not offend traditional notions of fair play and...