Personal Jurisdiction, Process, and Venue in Antitrust and Business Tort Litigation

Issues of per sonal jurisdiction and venue often arise in
antitrust and business tort litigation, par ticularly in the age of
the Inter net. Some federa l statutes such a s the antitrust and
securities laws provide for nationwide ser vice of process. In
cases involving parties from different states, the ability to effect
extraterr itorial service may weigh in favor of asserting such
federal cla ims. On the other hand, venue choices in state court
often are as varied, or more so, tha n those available in the
federal cour ts. This chapter sur veys how personal jur isdiction,
process, and venue may vary in antitrust and business tort
litigation; how these and other factor s impact choice of forum
is further addr essed in Chapter XI. Eds.
A. Introduction
Assuming a court has subject matter jurisdiction, its power over a
defendant is a function of three related concepts: personal jurisdiction,
service of process, and venue. The rules governing these concepts may vary
depending upon the forum chosen and the substantive claims asserted.
In particular, the assertion of federal antitrust or other statutory
claims may significantly impact the plaintiff’s venue choices, as well as
the defendant’s transfer opportunities. This chapter addresses the
interplay of the constitutional and procedural rules determining a court’s
ability to assert and retain personal jurisdiction in antitrust and business
tort litigation. It also discusses the impact of using the Internet to effect
commerce on the analysis of jurisdiction and venue.
B. Personal Jurisdiction and Service of Process
General Federal Due Process Constraints
The requirement that a court have personal jurisdiction over the
defendant in a federal question case stems from the Due Process Clause
of the Fifth Amendment.
The test for personal jurisdiction requires that
. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 702 (1982).
304 Business Torts and Unfair Competition Hand book
the defendant have “minimum contacts” with the forum and t hat
maintenance of the suit “not offend ‘traditional notions of fair play and
substantial justice.’”
When a federal court is asked to decide state-created rights under
diversity jurisdiction, the constitutional inquiry is guided by the same
Fourteenth Amendment standards applicable to state long-arm
jurisdiction. The critical question is whether the defendant has sufficient
minimum contacts with the forum state to permit the exercise of
jurisdiction over it.
A plaintiff may seek to establish “general
jurisdiction” over a defendant by showing that the defendant maintained
“continuous and systematic” contacts with the forum state.
Or a plaintiff
may seek to establish “specific jurisdiction” by showing that the
defendant purposely directed his activities at residents of the forum and
that the plaintiff’s claims arise out of or relate to those activities.
In federal question cases, there has been disagreement over whether
the federal courts are constrained by Fourteenth Amendment standards or
by the broader standards emanating from the Fifth Amendment, which
focus on the defendant’s aggregate contacts with the United States.
. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); see also
Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112
. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985).
. See Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 414-
15 (1984). T ransient jurisdiction, acquired by personally serving a
nonresident defendant while physically present in the forum state, is also
a constitutionally va lid method of asserting ge neral jurisdiction.
Burnham v. Superior Court of Cal., 495 U.S. 604, 628 (1990) (the Due
Process Clause of the Fourteenth Amendment does not prohibit state
courts from exercising jurisdiction over nonresident based on fact of in-
state service of process).
. See Burger King Corp., 471 U.S. at 472-73; Ha ll, 466 U.S. at 414 n.8.
. See, e.g., Cargill Inc. v. M/V Paschalis, 1987 WL 17950, at *1-2
(S.D.N.Y. 1987) (noting disagreement over use of nationwide contacts in
consideration of personal jurisdiction); Superior Coal Co. v. Ruhrkohle,
A.G., 83 F.R.D. 414, 418 -20 (E.D. Pa. 1979) (although Fifth Amendment
Due Process Clause permits aggregation of defendant’s contacts across
the nation, no federal statute authorizes district courts to ta ke nationwide
contacts into consideratio n; no personal jurisdiction where defendant
lacked adequate minimum contacts with forum state); see a lso Herbert
Hovenkamp, Per sonal Jurisdictio n a nd Venue in Pr ivate Antitrust
Actions in Federa l Court: A Policy Analysis, 67 IOWA L. REV. 485, 500
01 (1982); see generally 4 CHARLES ALAN WRIGHT, ARTHUR R. MILLER,
Persona l Jurisdiction 305
Strict application of the minimum contacts doctrine in the federal courts
cannot always be reconciled with various federal statutes authorizing
nationwide service of process, such as section 12 of the Clayton Act.
The Supreme Court has not considered the constitutionality of this
national or aggregate contacts theory,
and federal circuit courts are split
over whether a national contacts analysis is sufficient when process is
served under a federal statute’s nationwide service of process provision.
Since 1993, personal jurisdiction in federal question cases is no
longer subject to the peculiarities of individual state long-arm statutes.
PROCEDURE § 1067.1 (3d ed.) (discussing development of minimum
contacts doctrine).
. 15 U.S.C. § 22; see a lso 15 U.S.C. § 77(v) (the Securities Act), 15 U.S.C.
§ 78aa (the Securities Exchange Act), 15 U.S.C. § 49 (the Federal Trade
Commission Act); 18 U.S.C. § 1965 (the Racketeer Influenced and
Corrupt Organizations Act).
. Omni Capital Int’l v. Randolph Wolff & Co., 484 U.S. 97, 102 n.5 (1987)
(citing Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102, 113 n.*
. Compare In r e Automotive Refinishing Paint Antitrust Litig., 358 F.3d
288, 298 -99 (3rd Cir. 2004), Autoscribe Corp. v. Goldman & Steinberg,
1995 U.S. App. LEXIS 2848, at *7 (4th Cir. 1995) (citing Hogue v.
Milodon Engineering, 736 F.2 d 989, 991 (4th Cir. 1984), Busch v.
Buchman, Buchman & O’Brien Law Firm, 11 F.3d 1255 , 1258 (5th Cir.
1994), United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1330 (6th
Cir. 1993), United Elec., Radio & Mach. Workers of Am. v. 163 Pleasant
St. Corp., 960 F.2d 1080, 1085 (1st Cir. 1992), Go-Video v. Akai Elec.
Co., 885 F.2d 1406, 1414-16 (9th Cir. 1989), Lisak v. Mercantile
Bancorp, Inc., 834 F.2d 668, 671-72 (7th Cir. 1 987), Hogue v. Milo don
Eng’g, 736 F.2d 989, 991 (4th Cir. 1984), and Republic of Panama v.
BCCI Holdings (Luxembourg), 119 F.3d 93 5, 942-49 (11th Cir. 1997)
(all holding that national contacts analysis is sufficient), with In re
Vitamins Antitrust Litig., 94 F. Supp. 2d 26, 29-31 (D.D.C. 2000), and
GTE Ne w Media Servs. v. BellSouth Corp., 199 F.3d 1343, 1350 (D.C.
Cir. 2000) (citing Goldlawr, Inc. v. Heiman, 288 F.2d 579, 581 (2d Cir.
1961), rev’d on other grounds, 369 U.S. 463 (1962)) (holding that a local
contacts inquiry is required); see discussion infra Parts E.1, E.2.
. Until 1993, in the absence of a federal statutory provision for service, a
federal court’s jurisdiction in federal question cases could be limited by
the forum state’s long-arm statute, not because of t he Due Process Clause
of the Fifth Amendment, but r ather by the incorporation of state law
governing service under Rule 4 of the Fed eral Rules of Ci vil Procedure.
Rule 4 required that extraterritorial service not authoriz ed by federal

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