PLAINTIFF PERSONAL JURISDICTION AND VENUE TRANSFER.

• Author: Dodson, Scott

Personal jurisdiction usually focuses on the rights of the defendant. This is because a plaintiff implicitly consents to personal jurisdiction in the court where the plaintiff chooses to file. But what if the defendant seeks to transfer venue to a court in a state in which the plaintiff has no contacts and never consented to personal jurisdiction? Lower courts operate on the assumption that, in both ordinary venue-transfer cases under 28 U.S.C. [section] 1404(a) and multidistrict-litigation cases under [section] 1407(a), personal-jurisdiction concerns for plaintiffs simply do not apply. 1 contest that assumption. Neither statute expands the statutory authorization of federal-court personal jurisdiction. And theories based on implied consent stretch that notion too far. Personal jurisdiction legitimately can treat plaintiffs and defendants differently, but those differences call for nuance and fact dependency, not a blanket exemption for plaintiffs from personal-jurisdiction protections. This Essay reestablishes plaintiff-side personal jurisdiction by articulating and justifying the standard for protecting the due process rights of plaintiffs subject to interstate venue transfer without their express consent.

TABLE OF CONTENTS INTRODUCTION I. THE BASICS II. A CRITIQUE OF CURRENT APPROACHES A. Personal Jurisdiction's Applicability to Plaintiffs B. Personal Jurisdiction's Applicability to Temporary Transfers C. Statutory Authorization of Nationwide Personal Jurisdiction D. Consent III. PATHS FORWARD A. Recognizing the Issue B. Establishing Standards 1. The Scope of Personal Jurisdiction over Plaintiffs 2. Applying Personal Jurisdiction over Plaintiffs C. Practicalities CONCLUSION INTRODUCTION

After a twenty-five-year hiatus, personal jurisdiction is once again in the limelight. (1) The Supreme Court's return to the doctrine coincides with the increasing mobility of cases in modern federal litigation, as parties attempt-with judicial encouragement--to use venue-transfer statutes to move cases across state lines. (2)

The intersection of personal jurisdiction and venue transfer has generated issues before. In Hoffman v. Blaski, for example, the Court held that venue transfer to a court that lacked personal jurisdiction over the defendant was improper. (3) But Congress amended the general venue-transfer statute to allow transfer to a court that otherwise would lack personal jurisdiction over the defendant if the parties consent to the transfer. (4) Further, the Court has held that a transferor court lacking personal jurisdiction over the defendant may transfer the case to a court that has personal jurisdiction over the defendant. (5) Throughout the development of the law at the intersection of personal jurisdiction and venue transfer, the focus has been on personal jurisdiction's protection of defendants. (6)

But what about plaintiffs? Personal jurisdiction protects them too. (7) In most cases, the personal-jurisdiction protections for plaintiffs can be easily sidestepped because a plaintiff effectively consents to the personal jurisdiction of the court where the plaintiff files. (8) But what if the case is whisked out from under the plaintiff to a remote destination in a faraway state, against the plaintiffs choice and without the plaintiffs consent? To date, neither courts nor commentators have satisfactorily interrogated the personal-jurisdiction implications for plaintiffs in such a context. (9) Yet the problem is a prevalent one, for such venue transfer occurs in a sizable percentage of federal cases. (10)

In this Essay, I make two contributions to the issue of personal jurisdiction over plaintiffs in venue-transfer cases. First, I hope to force off the blinders and shine a light on the real and serious nature of the issue. The issue should not be ignored or sidestepped but confronted and duly considered. Second, I offer an approach for addressing the issue. Although personal jurisdiction does protect plaintiffs in venue-transfer cases, the application of the consent doctrine depends upon a deeper consideration of the unique posture of plaintiffs. I therefore illustrate some paradigmatic circumstances for when and how personal jurisdiction protects plaintiffs in venue-transfer cases by restricting the range of transferee courts.

1. THE BASICS

   Personal jurisdiction is a due process right not to be subject to the adjudicatory authority of a sovereign. (11) Although the theory behind personal jurisdiction is unsettled, (12) the Court has made clear that personal jurisdiction exhibits both sovereignty and fairness features. (13) The sovereignty features help restrain states from adjudicating the rights and obligations of citizens of other states. (14) And the fairness features help justify or guard against the burdens parties face when forced to litigate outside of their home states. (15) These constitutional norms set the outer bounds of personal jurisdiction; sovereigns can further restrict their courts' adjudicatory authority by statute. (16)

   Among the parties to a lawsuit, these features of personal jurisdiction tend to operate by protecting defendants, who are involuntary parties subjected to the initial forum choice of the plaintiff. Plaintiffs understandably may wish to avoid the defendant's home state for strategic reasons; they may even select a forum that is purposefully inconvenient for the defendant. And, as the filing party, the plaintiff has that initial power of forum selection. As a result, the overwhelming body of cases and commentary on personal jurisdiction has focused on its applicability to defendants.

   But the Due Process Clauses protect "persons," not just defendants, (17) so plaintiffs arguably have similar entitlements to the protections of personal jurisdiction. In most cases, consent obviates any protections: the plaintiffs act of filing a complaint in a court manifests the plaintiff's consent to the personal jurisdiction of that court for purposes of resolving the claims asserted in that complaint. (18) The Supreme Court has held that the plaintiffs filing-based consent also extends to consent to personal jurisdiction regarding counterclaims asserted by the defendant against the plaintiff in the same case in the same court. (19) In essence, the plaintiff consents to the personal jurisdiction of the court whose jurisdiction the plaintiff invoked.

   That much is settled law. Things get fuzzy, however, if the case is transferred to a different state without the plaintiffs consent and the plaintiff would not otherwise be subject to personal jurisdiction in the transferee state. Such venue transfers are common. The two most prominent transfer mechanisms are by court order under 28 U.S.C. [section] 1404--the general venue-transfer statute--for the convenience of the parties and in the interests of justice, (20) and by order of the Judicial Panel on Multidistrict Litigation (JPML) under 28 U.S.C. [section] 1407--the MDL-transfer statute. (21) In those circumstances, the plaintiff is subjected, against their will, to the adjudicatory authority of a new court whose jurisdiction the plaintiff did not invoke. Do personal-jurisdiction protections for the plaintiff impose limits on such transfers? In my view, the answer is unequivocally yes.

2. A CRITIQUE OF CURRENT APPROACHES

   I have found almost no academic literature on the question of how personal jurisdiction applies to plaintiffs subject to involuntary interstate venue transfer, (22) though, as I document below, commentators seem to assume that personal jurisdiction does not apply to such plaintiffs. The Supreme Court likewise has not addressed the issue. A few lower courts have confronted the issue, but they tended to rely on perfunctory rationales to conclude that personal jurisdiction over plaintiffs is not of concern in venue-transfer cases. The Sections in this Part address these rationales and expose their weaknesses.

   1. Personal Jurisdiction's Applicability to Plaintiffs

      Some courts take the position that plaintiffs, as voluntary party-claimants, are simply not subject to the protections of personal jurisdiction, even in venue-transfer cases. (23) Murray v. Scott, (24) the leading district-court case espousing this view, reasoned as follows:

      The minimum-contacts concerns inhere when a party is haled into court without its consent upon pain of a default judgment. These concerns are not present when a plaintiff is forced to litigate his case in another forum. Barring a counterclaim, plaintiff will not have judgment entered against him in the new forum; even with a counterclaim, plaintiff chose to initiate litigation enabling the counterclaim. In no sense is plaintiff unilaterally being haled into court to defend. Indeed, plaintiff's original choice of forum is preserved in at least one way: the law of the transferor forum will govern in the litigation rather than the law of the new forum. Therefore, the International Shoe minimum-contacts analysis is not necessary. The requirement that a litigant have minimum contacts with the forum simply does not exist for an ordinary plaintiff. (25) In other words, because personal jurisdiction protects involuntary parties subject to the coercive power of a court, only defendants are entitled to the protections of personal jurisdiction. Some commentators have proffered this theory. (26)

      The position that plaintiffs do not need personal jurisdiction protections because of the differences between the risks faced by plaintiffs and defendants is seriously undermined by the availability of the declaratory-judgment action, which enables a putative defendant to initiate, as a plaintiff, an action seeking a declaration of nonliability against a putative claimant (who becomes the defendant). (27) Personal jurisdiction applies equally to defendants to declaratory-judgment actions, even though such suits effectively present no risk of liability to them. (28)

      In any event, the position represented by...