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

Like subject matter jurisdiction, personal jurisdiction
often is an issue at the inception of antitrust and business tort
litigation – which now includes Internet cases. So, too, are the
issues of process and venue. Some federal statutes – such as
the antitrust and securities laws – provide for nationwide
service of process; in cases involving parties from different
states, the ability to effect extraterritorial service may weigh in
favor of asserting such federal claims. In contrast, venue
choices in state court often are as rich or richer than those
available in the federal courts. This chapter surveys how
personal jurisdiction, process, and venue may vary in antitrust
and business tort litigation; how these and other factors impact
on choice of forum is addressed in Chapter 11. – 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
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.
B. Personal Jurisdiction and Service of Process
1. 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
262 Business Tort Law
of the Fifth Amendment.1 The test for personal jurisdiction requires that
the defendant have “minimum contacts” with the forum and that
maintenance of the suit “not offend ‘traditional notions of fair play and
substantial justice.’”2
When a federal court adjudicates 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.3 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.4 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.5
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.6
1. Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
702 (1982).
2. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); see Asahi Metal
Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 105, 108-09 (1987).
3. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985).
4. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
n.9 (1984). Additionally, the Supreme Court has held that transient
jurisdiction, acquired by personally serving a nonresident defendant while
physically present in the forum state, is a constitutionally valid method of
asserting general jurisdiction. Burnham v. Superior Court of Cal., 495
U.S. 604, 628 (1990) (the Due Process Clause of the Fourteenth
Amendment does not prohibit California courts from exercising
jurisdiction over nonresident based on fact of in-state service of process).
5. See Burger King Corp., 471 U.S. at 472-73; Hall, 466 U.S. at 414 n.8.
6. See, e.g., Cargill Inc. v. M/V Paschalis, No. 86 Civ. 0805, 1997 WL
17950, at *1-2 (S.D.N.Y. Sept. 30, 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 (E.D. Pa. 1979)
(although Fifth Amendment Due Process Clause permits aggregation of
defendant’s contacts across the nation, no federal statute authorizes district
Personal Jurisdiction 263
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.7
The Supreme Court has not considered the constitutionality of this
national or aggregate contacts theory,8 and federal circuit courts are split
over whether only a national contacts analysis is required when process
is served under a federal statute’s nationwide service of process
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 the Due
courts to take nationwide contacts into consideration; no personal
jurisdiction where defendant lacked adequate minimum contacts with
forum state); see also Herbert Hovenkamp, Personal Jurisdiction and
Venue in Private Antitrust Actions in Federal Court: A Policy Analysis, 67
IOWA L. REV. 485, 500-01 (1982); see generally 4 CHARLES ALAN
§ 1067.1 (3d ed. 2002) (discussing development of minimum contacts
7. 15 U.S.C. § 22; see also 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).
8. Omni Capital Int’l, Ltd. v. Randolph Wolff & Co., 484 U.S. 97, 102 n.5
(1987) (citing Asahi Metal Indus. Co., 480 U.S. at 113 n.*).
9. Compare Autoscribe Corp. v. Goldman & Steinberg, No. 94-1749, 1995
U.S. App. LEXIS 2848, at *7 (4th Cir. Feb. 3, 1995), 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 v. 163 Pleasant St. Corp., 960 F.2d
1080, 1085 (1st Cir. 1992), Go-Video, Inc. 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. 1987), Hogue v. Milodon Eng’g, Inc., 736 F.2d 989,
991 (4th Cir. 1984), FTC v. Jim Walter Corp., 651 F.2d 251, 256 (5th Cir.
1981), and Tex. Trading & Milling Corp. v. Fed. Republic of Nigeria, 647
F.2d 300, 314-15 (2d Cir. 1981), with In re Vitamins Antitrust Litig., 94 F.
Supp. 2d 26, 38-39 (D.D.C. 2000), and GTE New Media Servs. Inc. 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)); see discussion infra Parts E.1, E.2.

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