The Enigma of Minimum Contacts

INTRODUCTION

There is no place to start like the beginning, and the usual beginning for the defendant is the receipt of a summons from the court with an order to appear and defend a lawsuit. It is never a prospect that evokes much enthusiasm, but the reception is likely to be even chillier if the suit has been filed in a distant state. The defendant will want to know why on earth the plaintiff has chosen to sue in a court a thousand miles away and, perhaps more to the point, whether she can sue there. The answer to the second question lies shrouded in one of the foggiest realms of civil procedure, the doctrine of personal jurisdiction.

Ever since the landmark case of Pennoyer v. Neff, 95 U.S. 714 (1877), the Supreme Court has consistently held that plaintiffs are not free to bring suit wherever they choose. The Fourteenth Amendment to the United States Constitution forbids the states from “depriv[ing] any person of life, liberty or property, without due process of law.” A state would violate this guarantee if its courts entered judgments against defendants without following a fair judicial procedure, and fair procedure includes not only such traditional elements as the right to counsel or to cross-examine witnesses, but also appropriate limits on the places where a defendant can be required to defend a lawsuit.

The Supreme Court has repeatedly attempted to define the appropriate limits on the power of state courts to “exercise personal jurisdiction over” defendants, that is, to require them to come into the state to defend lawsuits there. A number of bases for personal jurisdiction have evolved, including domicile, consent, physical presence, and the enigmatic “minimum contacts” standard. In many cases in which the defendant is not from the forum state (the state where suit is brought), the only basis for exercising personal jurisdiction over her will be the minimum contacts test developed in International Shoe v. Washington, 326 U.S. 310 (1945). This chapter focuses on the meaning of that test.