Personal Jurisdiction and Aliens

By Dodge, William S.; Dodson, Scott | Michigan Law Review, May 2018 | Go to article overview

Personal Jurisdiction and Aliens


Dodge, William S., Dodson, Scott, Michigan Law Review


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. Brown2 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 Court6 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 Daimler's "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. Nicastro14 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-byforum, 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. …

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