The Enigma of Minimum Contacts
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.
THE MINIMUM CONTACTS TEST
In International Shoe, the Supreme Court held that the courts of a state may exercise personal jurisdiction over a defendant if she has such minimum contacts with the state that it would be fair to require her to return and defend a lawsuit in that state. The Court did not elucidate this somewhat circular proposition by providing a list of what minimum contacts are sufficient, nor did it base the test on the number of contacts with the state. Instead, the Court suggested that whether jurisdiction is permissible depends on the “quality and nature” of the contacts with the state. 326 U.S. at 319. In some cases, the Court indicated, even a single contact will do, but not contacts that are “casual” or “isolated.”
This language is too vague to provide much guidance in applying the minimum contacts test, but the rationale of International Shoe is more helpful. The Shoe Court suggested that a corporation that chooses to conduct activities within a state accepts (implicitly, of course) a reciprocal duty to answer for its in-state activities in the local courts. A defendant should understand that her activities within the state will have an impact there, that those activities may lead to controversies and lawsuits there, and that the state has a right to enforce the orderly conduct of affairs within its borders by adjudicating disputes that arise from such in-state activities. The defendant who deliberately chooses to take advantage of the “benefits and protections of the laws” (326 U.S. at 319) of a state will not be heard to cry “foul” when that state holds her to account in its courts for her in-state acts.
This rationale suggests an important limitation on minimum contacts jurisdiction. Because the court’s power to exercise jurisdiction derives from the defendant’s voluntary relation to the state, the power should be limited to cases arising out of that relation. International Shoe implies such a limitation, and subsequent cases have confirmed that minimum contacts jurisdiction is limited to claims arising from (or, perhaps, related to) the defendant’s contacts with the forum state. In Shoe, for example, the corporation was held subject to personal jurisdiction in Washington for claims arising out of its shoe sales in that state, but the corporation could not have been required to defend a claim in Washington arising from shoe sales in Texas under a minimum contacts analysis. Sales in Texas are unrelated to Washington; the corporation would certainly not expect to be sued in Washington by a Texas shoe buyer, nor does the corporation take advantage of the benefits and protections of the laws of Washington by its activities in Texas. The analysis must always consider the relationship between the contacts that gave rise to the suit and the state where the suit is brought. Miscellaneous contacts are not minimum contacts. It is the contacts that spawned the lawsuit that are crucial to the minimum contacts analysis.
SPECIFIC AND GENERAL JURISDICTION: THE “SHOE SPECTRUM”
Although International Shoe is primarily viewed as a minimum contacts case, the opinion analyzes a broad spectrum of possible contacts with a state and their jurisdictional consequences. Figure 1-1 illustrates this spectrum of increasing contacts.
At one end of the “Shoe spectrum” are cases in which a defendant has no contact with the forum state. In such cases, Shoe indicates that the state has no authority to exercise personal jurisdiction over the defendant, unless she consents to it. “Casual” or “isolated” contacts (whatever they may be) are also insufficient to support jurisdiction. But other single acts, because of their “quality and nature,” will support “specific in personam jurisdiction,” that is, jurisdiction over claims arising out of that single act. See, e.g., McGee v. International Ins. Co., 355 U.S. 220 (1957) (upholding jurisdiction over claim arising out of a single contract solicited in the state). Continuous but limited activity in the forum state, such as the ongoing business relationship in Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), will also support “specific” in personam jurisdiction, that is, jurisdiction over claims arising out of that continuous activity. In each of these categories of cases, the in-state activity is limited. In each, the defendant is only subject to jurisdiction for claims arising out of those “minimum contacts.”
The Shoe opinion also suggests that if the defendant’s forum contacts fall at the far right end of the spectrum, where the in-state contacts are very substantial, the defendant is subject to “general in personam jurisdiction.” This means that the defendant may be sued in the state for any claim, even one completely unrelated to its in-state activities. Several cases since International Shoe affirm that general in personam jurisdiction is sometimes permissible (see Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984); Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952)), but the Supreme Court has not clearly indicated where the line (marked “G” on Figure 1-1) lies between contacts that support general in personam jurisdiction and those that support only specific, minimum contacts jurisdiction.
The Supreme Court’s recent general in personam jurisdiction case, Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011), held that several foreign subsidiaries of Goodyear Tire and Rubber Company were not subject to general in personam jurisdiction in North Carolina, even though several thousands of their tires were redistributed in North Carolina. The Goodyear Court rejected the argument that continuous sales into the state suffice to support general jurisdiction (as it had for substantial purchases in Helicopteros). However, in dicta, the Court endorsed the proposition that a corporation is subject to general in personam jurisdiction in the state where it is incorporated and the state of its principal place of business. The opinion states that the corporation is “fairly regarded as home” (131 S. Ct. at 2853-2854) in these states, analogizing to the state of domicile of a natural person, which may exercise general in personam jurisdiction over its domiciliaries. Milliken v. Meyer, 311 U.S. 457 (1940).
But Goodyear leaves unclear whether a corporation can be subject to general in personam jurisdiction in other states in addition to the states of incorporation and principal place of business. Suppose, for example, that MegaSales Inc. is incorporated in Delaware and has its principal place of business in Colorado, but also has 50 stores employing 10,000 people in California. MegaSales is apparently subject to general in personam jurisdiction in Delaware and Colorado, but the Court did not clarify whether its substantial and continuous contacts in California subject it to general jurisdiction there as well. The Court’s emphasis on places where the corporation is “at home” (131 S. Ct. at 2854) suggests that they may not be, but we don’t know.
Be careful not to confuse Goodyear’s analysis of general in personam jurisdiction with the analysis of a corporation’s state citizenship under 28 U.S.C. §1332(c)(1). Section 1332(c)(1) defines the corporation’s state citizenship for diversity purposes—to determine subject matter jurisdiction. Justice Ginsburg’s Goodyear opinion considers whether a corporation is subject to personal jurisdiction in a state for a claim that does not arise out of its contacts in that state.
Admittedly, after Goodyear, the two tests are similar, but they may not be exactly the same. In Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010) the Supreme Court adopted the “home office” or “nerve center” test for principal place of business for diversity purposes under §1332(c)(1). But it is not clear whether that same test will be adopted to analyze general in personam jurisdiction. There may be good reasons to use a different test for personal jurisdiction purposes. Arguably, general in personam jurisdiction analysis should focus on the extent of the defendant’s in-state activity, and that activity may be much greater in states where a corporation has production or sales facilities than the state of the home office. 
 . One Supreme Court opinion suggests in dicta that general in personam jurisdiction based on extensive in-state contact may only apply to corporations. Burnham v. Superior Court of California, 495 U.S. 604, 610, n.1 (1990). Whether or not this is true, the overwhelming majority of general in personam cases involve corporate defendants. Individuals’ contacts with states other than their domicile are seldom so extensive as to support an argument for general in personam jurisdiction.
SOME GUIDELINES IN APPLYING MINIMUM CONTACTS
Several important aspects of the minimum contacts test have been settled by cases since International Shoe. First, the minimum contacts test applies to individual as well as corporate defendants. See, e.g., Kulko v. Superior Court, 436 U.S. 84 (1978). This makes good sense, since individuals benefit from their voluntary in-state contacts just as corporations do and should likewise understand that those benefits may carry with them the burden of related litigation. Second, the limitations on personal jurisdiction found in long-arm statutes are distinct from the constitutional limit imposed by the minimum contacts test. See Chapter 2, which compares these two related concepts.
Third, it is clear that a defendant may have sufficient contacts with a state to support minimum contacts jurisdiction there even though she did not act within the state. If a defendant commits an act outside the state that she knows will cause harmful effects within the state, she may be subject to minimum contacts jurisdiction there for claims arising out of that act. In Calder v. Jones, 465 U.S. 783 (1984), for example, the defendant was held subject to personal jurisdiction in California for an allegedly defamatory article written in Florida, since the article was to be circulated in California, the plaintiff lived there, and the plaintiff’s career was centered there. Similarly, if Healy, a Minnesota lawyer, calls a Missouri client on a regular basis to give her legal advice and bills the client for that advice, Healy derives benefits from conducting activities in Missouri. Even if she has never visited Missouri, she will have to answer there for a legal malpractice claim that arises from her deliberate business activity there.
Fourth, minimum contacts analysis focuses on the time when the defendant acted, not the time of the lawsuit. Even if Healy stopped representing her Missouri client a year before being sued and now has no contacts with Missouri, Healy is subject to jurisdiction in Missouri for claims arising from these prior contacts. Minimum contacts jurisdiction is based on the premise that parties who conduct activities in a state accept the risk that those activities will give rise to suits and understand that they may have to return to the state where the activity was conducted to defend such suits. This rationale applies whether or not the defendant is still acting in the state at the time the suit is actually filed. Compare jurisdiction based on service of process on the defendant within the state, which was reaffirmed in Burnham v. Superior Court of California, 495 U.S. 604 (1990). Jurisdiction based on in-state service only requires that the defendant be present in the state at the time that the summons and complaint are served upon her. In such cases, the defendant need not have had any contact with the state at the time of the events giving rise to the suit.
The toughest problem in applying the minimum contacts test has been defining the “quality and nature” that makes a contact sufficient to support jurisdiction. Many cases have relied on the statement in Hanson v. Denckla that the defendant must have “purposely avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” 357 U.S. 235, 253 (1958). This language emphasizes that the defendant must have made a deliberate choice to relate to the state in some meaningful way before she can be made to bear the burden of defending there. Unilateral contacts of the plaintiff or others will not do.
Although scholars have criticized this emphasis on the defendant’s purposeful in-state contacts,  the Court has consistently required it. In World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980), for example, the Court concluded that a New York Audi dealer, Seaway, had not purposely availed itself of the opportunity to conduct activities in Oklahoma, although it could foresee that its buyers might take its cars there. The dealer had not sold cars there, advertised there, cultivated Oklahoma customers, or deliberately focused on Oklahoma as a market. Thus, it had not sought any direct benefit from Oklahoma activities sufficient to require it to submit to jurisdiction there. In Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780 (1984), by contrast, the defendant had purposely availed itself of the opportunity to engage in in-state activities, by distributing its magazines within the state. Those contacts supported jurisdiction even though the defendant’s acts had greater impact in other states, and the plaintiff had few contacts with the forum state.
Much debate has swirled around application of this purposeful availment requirement in cases where the defendant’s goods reach the forum state through the so-called “stream of commerce.” This often happens in one of two ways. First, an out-of-state component manufacturer sells components to a manufacturer of a finished product outside the state (or outside the country). That manufacturer then incorporates the component into a finished product and distributes the finished product into the forum state. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), is an example of this situation. Second, a manufacturer sells finished products to a wholesaler outside the state, the wholesaler then resells to a retailer in the forum state, and the retailer resells to the consumer. In these situations, the party at the beginning of the stream of commerce (the component maker in the first situation, and the manufacturer in the second) did not import the product into the forum state itself; it sold to others who did. The manufacturer or component maker may know that such resales take place in the state, may think it highly likely, or may not know or care about the ultimate destination of its product.
In Asahi, the Court split on the question of whether the mere act of selling goods outside the forum state that will likely be imported into the forum state for resale suffices to support jurisdiction. Justice O’Connor’s opinion, joined by three other Justices, rejected the premise that “mere awareness” that the stream of commerce may sweep goods into the state after they leave the defendant’s hands suffices to satisfy “purposeful availment.” O’Connor would require clearer evidence that the defendant seeks to serve the market in the particular state, such as designing the product for the market in that state or advertising there. 480 U.S. at 112-113. However, the concurring Justices in Asahi would find that sending goods into the stream of commerce, at least in substantial quantities, constitutes “purposeful availment,” whether or not the original maker knows that the goods will be sold in a particular state or cultivates customers there. The rationale for this view is that the maker both foresees and benefits from such sales in other states, whether it distributes them there directly or indirectly profits from the fact that another entity conveniently does so in its place.
More than two decades after Asahi, the Supreme Court reconsidered stream-of-commerce jurisdiction in J. McIntyre Machinery Ltd. v. Nicastro, 131 S. Ct. 2780 (2011). The defendant in McIntyre made a metal-shearing machine in England and sold it to a distributor in the United States, which resold it into New Jersey. The plaintiff was injured using it in New Jersey and sued there for his injuries. There was no question that McIntyre had sought to serve the U.S. market— it used an Ohio-based company as its exclusive U.S. distributor, sold its machines into the United States, attended conventions here to promote its machinery, and at least one of its machines was resold into New Jersey. Yet the majority of the Court held (over a fervent dissent by three Justices) that McIntyre’s contacts in New Jersey would not support specific in personam jurisdiction in New Jersey for Nicastro’s claim.
McIntyre seems a stronger case for jurisdiction than Asahi, because the defendant had reached out to sell its products in the United States. And it had sold the product that caused the injury into New Jersey, though indirectly. It not only knew that its products were entering the U.S. market, but promoted that market. The argument that it purposely availed itself to the United States, but not to the states where its products were actually resold, seems mildly disingenuous. In McIntyre five Justices— the two concurring Justices and the three dissenters— at least leave open the question whether a foreign manufacturer is subject to jurisdiction in states where substantial amounts of its goods are regularly redistributed.
Some things are reasonably clear based on these two cases. A foreign manufacturer or component maker that sells its products to wholesalers outside the United States, without cultivating the U.S. market in any way, will likely not be subject to jurisdiction, even if its product is imported into the United States and injures a consumer here. If that manufacturer develops a relationship with a U.S. distributor, sells goods to that distributor, and encourages U.S. sales, it will likely be subject to jurisdiction for claims arising from those sales in the state where it directs its goods, that is, where the U.S. distributor is located. However, it is not clear whether the manufacturer will be subject to jurisdiction in other states where the distributor resells the goods. The plurality opinion in J. McIntyre suggests that it will not be, yet the concurring and dissenting opinions suggest that jurisdiction may be proper if the defendant regularly serves the market in the state where its product causes injury.
It also seems quite likely that a foreign manufacturer that engages in the type of conduct described in Justice O’Connor’s opinion in Asahi, which is intended to promote its goods in that state, will be subject to specific in personam jurisdiction for claims that arise out of sales (including indirect sales) in that state. If J. McIntyre had maintained a service network for its products in New Jersey, it would probably have been found subject to the court’s jurisdiction in Nicastro’s case. Establishing the service network would represent “purposeful availment” sufficient to support jurisdiction if its product causes the injury in New Jersey.
 . See, e.g., M. Weber, Purposeful Availment, 39 S.C.L. Rev. 815, 865-871 (1988).
OTHER FACTORS IN THE JURISDICTIONAL CALCULUS
There is also a great deal of talk in the cases about factors other than the defendant’s in-state contacts, such as the interest of the forum state in providing redress to its citizens, the interest of the plaintiff in obtaining relief in a convenient forum, the interest of the states in enforcing their substantive law or policy, and the extent of the inconvenience to the defendant if she is forced to defend away from home. The cases have repeatedly cited such factors in determining whether it would be fair to assert personal jurisdiction over the defendant. See Keeton, 465 U.S. at 775-780; Burger King, 471 U.S. at 476-477. However, Burger King suggests that, where the defendant has purposely directed activities to the forum state, jurisdiction is presumptively reasonable, and she will have to make a “compelling case” that other considerations make the exercise of jurisdiction unreasonable. Burger King at 477. In Asahi, on the other hand, the Court found such a case to be made: There, a clear majority of the justices concluded that, even if minimum contacts were established, it would be unreasonable to exercise jurisdiction on the unusual facts of that case.
While the plaintiff’s interest, the forum state’s interest, and other fairness issues enter the balance once minimum contacts are found, they are not sufficient to support jurisdiction if those contacts are lacking. The defendant must first have purposely availed herself of the opportunity to conduct activities in the state. It is only when such deliberate contacts exist between the defendant and the forum state and those contacts give rise to the claim, that other factors will be weighed in determining whether the exercise of jurisdiction would comport with “fair play and substantial justice.”
Thus, although some principles are established in the minimum contacts area, the test still remains difficult to apply in close cases. Over the course of your lawyering life it will take on clearer meaning as you handle personal jurisdiction issues and begin to see how courts give flesh to the bare-bones test. The following examples will provide a start in that direction. In answering them, focus on the constitutional issue of minimum contacts only; do not worry about statutory problems under long-arm statutes. Also, assume that the contacts mentioned are the only contacts the defendant has with the forum state.
1.Austin is a traveling salesman who lives in North Dakota and sells Fuller brushes in parts of North Dakota, South Dakota, and Minnesota. While en route to deliver brushes to a Minnesota customer, he is involved in an auto accident in Minnesota with Healy, a Minnesota citizen. He brings suit against Healy in North Dakota for his injuries in the accident. Does the court have personal jurisdiction over Healy?
2.As a result of the same accident, Healy brings suit against Austin for her injuries. She sues in South Dakota. Does the court have jurisdiction over Austin based on minimum contacts?
3.To be on the safe side, Healy also files suit against Austin in Minnesota. Does that court have personal jurisdiction over Austin based on minimum contacts?
A Parade of Perplexities
4.The Volkswagen. Many of the most difficult personal jurisdiction cases involve commercial contacts, that is, contacts that arise out of business done in the state, either directly or indirectly, by a corporation acting outside the state. World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980), sets out the basic framework for analyzing these cases. The motorcade of hypotheticals that follows may help you to assess the importance of various contacts with the forum state.
Hudson, an Ohio citizen, buys a Volkswagen from Smoky Mountain VW, located on the east side of the Smoky Mountains in North Carolina, while she is on vacation in North Carolina. Shortly after she returns home, all four wheels fall off while she is driving, and Hudson is injured. Understandably upset, Hudson sues Smoky Mountain in an Ohio court for negligence. Does the Court have personal jurisdiction over the dealer?
5.The Chevy. After Hudson leaves, Ford pulls into Smoky Mountain’s lot with his engine belching smoke. His car is clearly a total loss, and he tells De Soto, the salesman, that he must have a car to get back home to Florida. De Soto sells him a (very) used Chevy. After crossing into Florida, Ford pushes the windshield wiper button, and the engine automatically ejects into the Everglades. Ford sues De Soto and Smoky Mountain in Florida. Is personal jurisdiction proper there?
6.The Maserati. De Soto has an eye for fast cars. At the moment, he has a nice Maserati on the lot, with all the extras (engine, wheels, brakes). A customer tells him that a trucker buddy of his, Packard, from Pennsylvania, might be interested in buying the Maserati. De Soto calls Packard in Pennsylvania, extols the Maserati’s virtues, and encourages her to come in and test drive the car on her next delivery in North Carolina. Packard does stop to see the car, likes it, and buys it. She makes the mistake of towing it home, only to discover upon arrival that the engine, lights, carburetor, and exhaust system are missing. She sues De Soto in Pennsylvania. De Soto has no other contacts with Pennsylvania. Will the Pennsylvania court have personal jurisdiction over De Soto?
7.The Audi. After lunch, Rambler comes in. Rambler lives across the border in Tennessee, where he read in a Tennessee paper Smoky Mountain’s ad for a one-year-old Audi for $1,100. Because the Smoky Mountain dealership is located ten miles from the Tennessee border, it advertises frequently in Tennessee, as well as in North Carolina. Rambler visits the dealership, talks De Soto down to $1,025, and buys the car. He barely gets across the Tennessee line when the steering wheel comes off in his hand, and the body comes entirely loose from the frame of the car. Rambler sues Smoky Mountain in Tennessee. Does the court have personal jurisdiction over Smoky Mountain?
8.Assume, on the facts of example 7, that Smoky Mountain only advertises occasionally in Tennessee and derives only 5 percent of its business ($40,000 of its annual gross sales of $800,000) from sales to Tennessee customers. The rest of its sales are in North Carolina. Rambler sees the ad and buys the Audi at Smoky Mountain’s dealership; it breaks down in Tennessee on the way home. Can Rambler sue Smoky Mountain in Tennessee?
9.The Ferrari. You can’t work all the time. When De Soto relaxes, he likes to go to the Georgia coast for some deep sea fishing. While drinking at a bar in the fishing lodge there, he gets to talking with Lenoir, another guest at the lodge. Lenoir asks De Soto about his work. The two get into a car lovers’ debate over the relative merits of various sports cars. Before leaving the bar, Lenoir asks De Soto for his card.
Two months later, Lenoir visits Smoky Mountain and buys a jazzy looking Ferrari from De Soto. Imagine for yourself what happens to the Ferrari when Lenoir gets it back to Georgia. Lenoir sues De Soto in Georgia. Will the court have personal jurisdiction over De Soto?
Streams of Commerce
Consider the following questions, which may help to sort out the reach of stream-of-commerce jurisdiction after the Supreme Court’s fractured decisions in Asahi and J. McIntyre.
10.Accu-Cut makes riding lawnmowers in France. It sells them to Transmondial, a French wholesaler of outdoor products. Transmondial sells an Accu-Cut mower to a hardware store in Colorado, and ships it to the store. Stanley buys it, is injured using it in Colorado, and sues Accu-Cut (which has no other U.S. contacts) in a Colorado court. Does the court have personal jurisdiction over Accu-Cut for this claim?
11.Same facts, but Accu-Cut exports mowers to Moline Distributors in Moline, Illinois. Moline resells five Accu-Cut Mowers to the hardware store in Colorado. Stanley buys one and is injured using it in Colorado. Would the Colorado court have personal jurisdiction over Accu-Cut for this claim?
12.Accu-Cut makes mowers in Florida that it sells to Moline Distributors in Illinois, and ships to Moline. Moline resells an Accu-Cut mower to a Colorado hardware store in an isolated transaction. Stanley buys it and is injured using it in Colorado. Would the Colorado court have personal jurisdiction over Accu-Cut for this claim?
13.Accu-Cut makes mowers in France and sells to Moline Distributors in Illinois, which resells a few mowers to a Colorado hardware store. Stanley buys one of them, is injured in Colorado, and sues Accu-Cut for his injury in Illinois. Does the Illinois court have jurisdiction over Accu-Cut?
14.Same facts as the previous example, except that Moline resells substantial numbers of Accu-Cut mowers into Colorado every year. Stanley buys one in Colorado and is injured using it in Colorado. Will Accu-Cut be subject to personal jurisdiction in Colorado?
15.Accu-Cut makes its mowers in Florida and sells them to Moline Distributors in Moline, Illinois. Moline resells five Accu-Cut Mowers to the hardware store in Colorado. Stanley buys one and is injured using it in Colorado. Stanley sues Moline Distributors in Colorado for his injury. Will Moline Distributors be subject to personal jurisdiction for the claim?
16.Accu-Cut makes mowers in Florida and sells them to Moline in Illinois, which resells them into Colorado. Here, though, Accu-Cut also advertises its mowers in Colorado on several weekly television programs. Would Accu-Cut be subject to personal jurisdiction in Colorado for Stanley’s claim?
Changing Cars in Midstream
17.The Edsel. Andretti is an Indiana race car driver whose hobby is collecting antique cars. He notices an ad in Antique Auto, a national magazine, for a mint condition Edsel for sale by a Michigan collector, Studebaker. He calls Studebaker, gets further information on the car, and decides to go up to look at it. While he is in Michigan, he and Studebaker discuss price but do not settle the deal. After Andretti returns to Indiana, he calls Studebaker back, agrees to his price, and arranges to pick up the car the following month. After buying the car and returning with it to Indiana, he discovers that it is a cleverly disguised Dodge Dart. He sues Studebaker in Indiana. Will the court dismiss for lack of personal jurisdiction?
18.Reconsider the case just described involving Andretti’s purchase of a car from Studebaker. However, assume that, instead of reading about the car in Antique Auto, Andretti dialed up Studebaker’s “Hot Cars” website and learned of the Edsel through the Internet. He then called Studebaker, and the transaction unfolded as above in example 17. Could Andretti sue Studebaker in Indiana on his fraud claim arising out of the sale?
The Rental Car
19.Patrikas, an elderly widow with minimal income, lives in Georgia. Her daughter is getting married in California. Patrikas scrimps and saves for two years (it was one of those long engagements) to set aside funds to fly out for the wedding. She rents a car to drive to the wedding, but on the way back to the airport she runs into an Acme International Conglomerated Enterprises truck. She flies back to Georgia, broke.
Acme International Conglomerated Enterprises is an international company worth billions. It sues Patrikas for damage to the truck in California. Does the court have personal jurisdiction over Patrikas?
20.Every year, the following statements sprout like dandelions in civil procedure bluebooks. What is wrong with them?
a.“Even if the defendant lacks minimum contacts with the state, the plaintiff may be able to get jurisdiction over him if he has taken advantage of the benefits and protections of the laws of the state.”
b.“The defendant may be sued in the state because she has engaged in deliberate acts there and thus has minimum contacts sufficient to support personal jurisdiction.”
1. In this case Austin has sued Healy in a state in which Austin has contacts, but Healy has none. As far as the example tells us, Healy has never been there, has not formed any deliberate relationship to or performed acts within the state, and has done nothing to derive benefits from North Dakota. Consequently, she has no reason to expect to be sued there and has not impliedly swallowed that bitter pill in exchange for the benefits of in-state activity. She lacks minimum contacts with North Dakota and may not be sued there on this claim.
As this conclusion suggests, the personal jurisdiction rules are defendant-oriented: The plaintiff’s contacts with the forum state will not do; the court must find some basis for forcing the defendant, the unwilling litigant, to appear before it. Conversely, if the defendant has minimum contacts with the forum state, it is irrelevant (at least, for personal jurisdiction purposes) that the plaintiff has none.
One might well ask why Austin should have to go to Healy instead of Healy coming to Austin. If someone will have to be inconvenienced by the suit, shouldn’t it be the defendant rather than the injured plaintiff? On the other hand, the defendant may be completely blameless; plaintiffs lose law suits as well as win them. If so, it seems unfair to add the insult of distant litigation to the injury of being sued in the first place. Perhaps more importantly, the defendant (unlike the plaintiff, who started the suit) has not chosen the forum and ought to have some veto power over unreasonable choices by the plaintiff.
2. The South Dakota court will not have personal jurisdiction over Austin under the minimum contacts test. It is true that Austin has some contacts with South Dakota because he travels there to sell brushes. However, International Shoe does not hold that a defendant may be sued in a state simply because she has some contacts with that state. Shoe holds that a defendant may, by committing limited acts within a state, submit herself to jurisdiction for claims arising out of the in-state acts themselves. Here, Healy’s claim is unrelated to Austin’s brush sales in South Dakota. Austin had no reason to believe that he was submitting himself to the jurisdiction of the South Dakota courts for auto accidents in Minnesota by selling brushes in South Dakota. The situation would be different if the claim were for faulty brushes sold to a South Dakota customer. In that case, the claim would arise directly from Austin’s voluntary contacts with the state, and jurisdiction would be proper.
However, Healy may still be able to sue Austin in South Dakota for the auto claim. Ever since Pennoyer v. Neff, 95 U.S. 714 (1877), it has been permissible to obtain personal jurisdiction over an individual defendant (that is, a person) by serving her with the summons in the state where suit is brought. In Burnham v. Superior Court, 495 U.S. 604 (1990), the Supreme Court concluded that such “transient jurisdiction” is still a valid means of obtaining jurisdiction over an individual defendant, even if the defendant is in the state briefly or for reasons unrelated to the litigation. Thus, if Healy is determined to sue in South Dakota, she may bring suit there and have the process server await Austin’s next sales trip into the state.
3. Healy has gotten it right by suing Austin in Minnesota. Austin’s act of driving in Minnesota provides a minimum contacts basis for a suit against him there for injuries suffered in the accident. Motorists who use the roads of a state should realize that this purposeful activity in the forum subjects other drivers to serious risks, that people may be injured and may sue. It would be unfair to allow drivers to take advantage of Minnesota’s highways but not to call them to account there for accidents they are involved in on those highways.
Even if causing the accident in Minnesota were Austin’s only contact with the state, it would support specific in personam jurisdiction in this case. The “quality and nature” of this single, purposeful act, and the consequences that may predictably ensue from it, are so serious as to make it reasonable to force the driver to return to defend a suit that arises from the accident. This is true whether Austin causes an accident while in Minnesota on business or in Florida on vacation.
A Parade of Perplexities
4. As the heading suggests, this case bears some resemblance to World-Wide Volkswagen v. Woodson. Here, as in World-Wide, the plaintiff purchased the car in one state and took it to another where she suffered injury from alleged defects in the car. As in World-Wide, the plaintiff sues where the injury is suffered, although the defendant acted in another state and is still in that state. And, as in World-Wide, the court will dismiss this case for lack of personal jurisdiction. Smoky Mountain (like Seaway in the World-Wide case) has committed no deliberate act that affiliates it with Ohio. It does not sell cars there, has not availed itself of the protection of Ohio’s laws, and has no reason to expect that it will be sued there. Although it is foreseeable that the car will be driven through or end up in Ohio, it is equally foreseeable that it will go to many other states. A rule that such foreseeability establishes jurisdiction would essentially subject the seller of any portable product to nationwide jurisdiction, making “the chattel [product] his agent for service of process” (World-Wide Volkswagen at 296) wherever the buyer takes it.
5. This case is somewhat stronger than Hudson’s, since De Soto at least knew he was dealing with a Florida citizen who would use the Chevy in Florida. However, it is very doubtful that this knowledge is enough to support jurisdiction over De Soto or Smoky Mountain in Florida. Personal jurisdiction is the price defendants pay for deliberate efforts to derive benefits from or conduct activities in a state. These defendants did not solicit any business in Florida; they did not even solicit business from a Floridian. Ford rolled into the dealership under his own steam and initiated the transaction in North Carolina. It was only by chance that Ford told De Soto why he needed the car; it is reasonable to infer that it was irrelevant to De Soto that Ford planned to drive it to Florida. (A sale is a sale, right?) De Soto and his employer derived benefits from dealing with a Floridian in North Carolina, not from conducting business activities in Florida. Ford’s Florida domicile is a unilateral contact of the plaintiff, not the defendant, with the forum state. See Hanson v. Denckla, 357 U.S. 235, 253 (1958); compare Burger King, 471 U.S. at 478-482, in which jurisdiction was upheld because the defendants had an on-going contractual relationship with a large Florida franchise, agreed that Florida law would govern the relationship, and regularly related to the Florida headquarters of the franchise regarding important aspects of their business.
It is true that the Supreme Court cases emphasize that the plaintiff’s interest in a remedy and the forum state’s interest in providing one are part of the personal jurisdiction calculus. See, e.g., Asahi, 480 U.S. at 113-115; Keeton v. Hustler Magazine, 465 U.S. at 775. However, before those factors can be weighed in favor of jurisdiction, the defendant must be shown to have appropriate purposeful contacts with the state asserting jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. at 474-478. De Soto’s relation to Florida on these facts appears too attenuated to support such a finding.
Nor is it sufficient that the defendants could anticipate that the car would be used in Florida. If that were sufficient to support jurisdiction, then the local store that sells a defective mountain climbing rope could be sued in any mountainous state, or a farmer who sells rancid tomatoes to railroad dining cars could be sued in any state the railroad serves. World-Wide Volkswagen makes it clear that the Court has chosen a narrower view of personal jurisdiction, focusing on the scope of the activity of the seller, rather than the predictable area of use of the product by the buyer.
6. Here, as in example 5, De Soto has consciously dealt with an out-of-stater, but here, unlike the earlier situation, he has voluntarily affiliated himself with the plaintiff’s state. He not only anticipates that his acts will have consequences in the other state, but he has also deliberately set those events in motion by his own in-state act. De Soto voluntarily reached into Pennsylvania to conduct business with a Pennsylvanian. He made representations to Packard in Pennsylvania that encouraged her to come to North Carolina to buy the car. He can reasonably anticipate that Packard will use the car extensively in Pennsylvania and likely suffer harm there from any defects in the car. De Soto should realize that his deliberate relationship with a Pennsylvanian, which he initiated by calling into that state, may lead to a lawsuit, and that if a claim arises out of the sale, Packard will likely bring the suit in Pennsylvania. Thus, De Soto will be subject to personal jurisdiction in this action. His single contact with Pennsylvania is sufficient to support specific in personam jurisdiction (that is, jurisdiction for claims arising out of the contact itself), although it would not support jurisdiction for claims that did not arise out of the sale.
7. In this case the dealership has reached into Tennessee to solicit business. It has attempted to draw customers from there into North Carolina, and in Rambler’s case it succeeded. Although the actual sale took place in North Carolina, the claim arises directly out of deliberate efforts to serve the Tennessee market. Smoky Mountain can hardly plead unfairness or surprise when suits that arise from those efforts are brought in Tennessee. Even Justice O’Connor should have no problem upholding jurisdiction in this case, since the defendant has intentionally attempted to derive profits from dealing with Tennessee customers by advertising in Tennessee.
It is important that the dealership is the defendant here, instead of De Soto, because it is the dealership that solicited the business in Tennessee, not the salesman. It is unlikely that the dealership’s contacts with Tennessee will be imputed to its employees. (Compare example 6, in which De Soto personally initiated contacts with the forum state.) Thus, if Rambler wanted to sue De Soto and Smoky Mountain together, he would probably have to bring suit in North Carolina.
8. This hypo makes an important point. Personal jurisdiction is not based on the most contacts or the best contacts but on minimum contacts. Here, Smoky Mountain has a great deal more contact with North Carolina than it has with Tennessee, but the dealership has solicited business in Tennessee, and the claim arises out of its efforts to obtain that business. That is enough to support jurisdiction in Tennessee. Smoky Mountain will not be able to defeat jurisdiction there by arguing that it has more contacts with North Carolina.
A corollary of this point is that a defendant may be subject to minimum contacts jurisdiction in more than one state for a claim that arises from a transaction involving contacts with a number of states.
9. In my estimation, this is the kind of “casual” or “isolated” contact (International Shoe, 326 U.S. at 317) that is insufficient to subject the defendant to personal jurisdiction. Although De Soto did act in the state, he was not soliciting business and did not initiate the conversation for business purposes. He gave Lenoir his card at Lenoir’s request. He did not encourage Lenoir to go to North Carolina to buy a car. In the “but-for” sense, this contact did give rise to the claim Lenoir asserts, but it was not a purposeful act intended to take advantage of the benefits and protections of conducting activity in Georgia. De Soto would be justifiably upset if this offhand interaction led to a suit in Georgia. He would hardly expect that to be the consequence of responding to a request for a business card, and jurisdictional doctrine is largely based on a common sense appraisal of what people should expect.
There is room for debate on this case, but it is doubtful that this constitutes deliberate in-state activity intended to exploit the local market or affect local citizens. In this regard, it is clearly distinguishable from the Maserati case, in which De Soto deliberately initiated a business contact with the in-state plaintiff, or McGee v. International Ins. Co., 355 U.S. 220 (1957), in which the insurer reached into California by sending an offer there to reinsure a Californian.
Streams of Commerce
10. No. Here a foreign manufacturer makes a product outside the United States and sells it there, much as Asahi did for the component tire valves in the Asahi case. This would certainly not satisfy the Asahi plurality’s test for purposeful availment in Colorado, because it was Accu-Cut’s buyer that chose to sell the mower into Colorado, not Accu-Cut. Nor would it satisfy Justice Kennedy’s opinion in J. McIntyre. Accu-Cut in the example has done a good deal less to cultivate the U.S. market (or the Colorado market) than J. McIntyre did in the J. McIntyre case.
It isn’t clear whether the J. McIntyre dissenters would find jurisdiction on these facts, but it seems fairly clear that the concurring Justices would not. They viewed J. McIntyre’s contacts, in selling the product to a United States distributor, as insufficient to support jurisdiction in a different state where it was resold and caused injury, so they presumably would find Accu-Cut’s lesser contacts also insufficient.
11. Accu-Cut’s contacts here resemble those of the manufacturer in J. McIntyre, which the plurality found insufficient to support personal jurisdiction in the state courts of New Jersey. Accu-Cut has chosen to serve the market for its products in the United States by selling to an Illinois distributor, but it has not independently reached into Colorado. Here again, it seems that the plurality opinions in Asahi and in J. McIntyre would reject personal jurisdiction over Accu-Cut.
The J. McIntyre dissenters argue strenuously that there should be jurisdiction over the foreign manufacturer in cases like this one, where it has served the U.S. market— albeit through an intermediary— and derived profits from it. The concurring Justices in J. McIntyre might accept that argument under some circumstances, as where the manufacturer’s products are regularly sold into the state or it directly cultivates the market in the state. But they probably would not find jurisdiction justified on these facts— a sale of five mowers on a single occasion. So, after J. McIntyre, as after Asahi, the answer is probably “no.”
12. The main difference here is that Accu-Cut makes its mowers in the United States. It seems unlikely that this difference would lead the Justices who signed on to the plurality opinion in either Asahi or J. McIntyre to reach a different result. Accu-Cut has still not done anything to focus on Colorado. It has simply made a product in one state and sold it to a wholesaler in another, which redistributes the product in other states. See J. McIntyre at 2790 (“the undesirable consequences of Justice Brennan’s approach are no less significant for domestic producers”).
13. It almost certainly would. Accu-Cut has imported goods into Illinois, a purposeful contact that supports jurisdiction for claims that arise out of that purposeful decision to do business in Illinois. Although the injury occurred in Colorado, the claim against Accu-Cut does arise out of its sale of the mower into Illinois.
Ironically, there seems little reason to litigate this case in Illinois. Neither party is from there and the events giving rise to the claim took place in France (where the mower was made) and Colorado (where Stanley was injured). Accu-Cut might even move to dismiss for forum non conveniens, claiming that there is no reason to litigate this case in Illinois. Yet it is hard to see an Illinois judge granting that motion, which would leave Stanley with only the option of a French court to litigate his Colorado claim.
14. In this case it seems likely that Justices Breyer and Alito, the concurring Justices in J. McIntyre, would conclude that Accu-Cut’s substantial, on-going sales into Colorado would support personal jurisdiction over it in Colorado for this claim. See 131 S. Ct. at 2792 (concurring opinion notes the lack of a “‘regular flow’ or ‘regular course’ of sales in New Jersey,” suggesting that such in-state contacts might change the result). Clearly, the three dissenters would uphold jurisdiction as well, so this scenario may support specific in personam jurisdiction. But we don’t really know. Civil Procedure teachers waited 24 years after Asahi for clarification of the scope of jurisdiction based on the stream of commerce. Despite Justice Kennedy’s avuncular assurance that “judicial exposition will, in common law fashion, clarify the contours of that principle” (131 S. Ct. at 2790), we didn’t get very much clarity from J. McIntyre.
15. Absolutely. Moline sold goods into the state, a deliberate contact with the state that supports specific in personam jurisdiction for claims that arise from that contact. This is like Accu-Cut’s contacts with Illinois.
16. In this example Accu-Cut has reached into Colorado to solicit buyers for its mowers (in the words of Justice Kennedy in J. McIntyre, it has “targeted the forum”). 131 S. Ct. at 2788. Through this deliberate conduct Accu-Cut has established a purposeful contact in Colorado. This contact may not have given rise directly to the sale to Stanley (he may have never seen the ads) but even if it didn’t, it appears to satisfy Justice O’Connor’s approach in Asahi: The combination of deliberate cultivation of the market and the in-state injury supports some kind of “hybrid” jurisdiction. See also World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980):
If the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. 
Of course, membership on the Court has changed since Asahi, but nothing in the Court’s recent opinions suggests movement away from this emphasis on deliberate reaching in. See, e.g., J. McIntyre, 131 S. Ct. at 2792 (Breyer, J., concurring) (noting absence of state-focused design, advice, or marketing by the defendant).
Changing Cars in Midstream
17. This is a close case indeed, perhaps too close to call. Studebaker does have a contact with Indiana: He advertised in a magazine circulated there with the express purpose of selling his Edsel. On the other hand, the magazine is a specialty publication circulated nationally. Studebaker was not specifically soliciting an Indiana buyer but was willing to sell to anyone, in or out of the state. Once Andretti learned of the car’s availability, he took the initiative: He went to Michigan to see the car; he called back to make an offer; and he picked up the car in Michigan. Studebaker remained in Michigan and passively responded. It was irrelevant to him that Andretti was from Indiana. He may not even have known where Andretti was from.
 . Note that the World-Wide Court does not say, “if its allegedly defective merchandise that was sold into the state has there been the source of injury.” Because the Audi involved in the accident in World-Wide had not been sold in Oklahoma, the Court’s language suggests that, as long as the defendant is serving the in-state market, it will be subject to jurisdiction for injuries caused in the state by products sold elsewhere.
I think this is a case in which the defendant does have a deliberate contact with the forum state, but the totality of the circumstances weighs against jurisdiction in Indiana. At least eight of the Asahi Justices agreed that, once a jurisdictionally significant contact with the forum state is found, the Court must consider whether it would be fair and reasonable under all the circumstances to take jurisdiction. 480 U.S. at 113-116. Given the lack of deliberate acts by Studebaker in Indiana, that all the negotiations took place at Andretti’s initiative, and that Studebaker never left Michigan, it appears unreasonable to expect Studebaker to defend this claim in Indiana. Once again, compare example 6, in which the seller solicited the sale in the forum state.
For a quite similar case in the Internet era, see Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008). In Boschetto, the California plaintiff bought an antique car through eBay from Wisconsin sellers. He then hired a transport company to deliver the vehicle to him in California, but sued the sellers in California after it arrived and did not conform to expectations. The Ninth Circuit upheld the dismissal for lack of personal jurisdiction, finding that the Wisconsin sellers had not purposely availed themselves of the opportunity to conduct activities in California by advertising the car through eBay.
Neither Boschetto’s complaint nor his affidavit in opposition to dismissal point to any continuing commitments assumed by the Defendants under the contract. . . . Nor did performance of the contract require the Defendants to engage in any substantial business in California. On Boschetto’s version of the facts, funds were sent to Wisconsin and arrangements were made to pick up the car there and have it delivered to California. This was, as the district court observed, a “one-shot affair.”
539 F.3d at 1017.
18. Doubtless the Internet has changed a great many things, but it hasn’t really changed the basic principles of personal jurisdiction. In this case, as in example 17, Studebaker has advertised the car but has not really reached into Indiana specifically. The initiative came from Andretti and the transaction unfolded in Michigan. The court would likely conclude that the act of posting the car on a website accessible in Indiana (or anywhere else, for that matter) is like the advertisement in example 17, and insufficient to constitute purposeful availment by Studebaker. See, e.g., Mink v. AAAA Development, LLC., 190 F.3d 333 (5th Cir. 1999) (website that constituted “passive advertisement” not sufficient to support jurisdiction).
However, where the defendant engages more actively in in-state commerce over the Internet, jurisdiction will be found. If, for example, substantial negotiations take place between the defendant and the plaintiff in the forum state over the Internet, or products are sold into the forum state over the Internet, purposeful availment is likely to be found, just as it would be if the same contacts arose in person or by phone or fax. See, e.g., Euromarket Designs Inc. v. Crate & Barrel Ltd., 96 F. Supp. 2d 824 (N.D. Ill. 2000) (jurisdiction upheld over defendant who conducted catalogue sales in Illinois over the Internet); see also Hy Cite Corp. v. Badbusinessbureau.com LLC., 297 F. Supp. 2d 1155, 1160 (W.D. Wis. 2004) (jurisdiction based on Internet contacts requires inquiry as to whether defendant “is expressly targeting residents of the forum state and not just making itself accessible to everyone regardless of location”). Basically, analysis in Internet jurisdiction cases requires the same examination of the defendant’s contacts with the forum and the relation of those contacts to the plaintiff’s claim that is necessary in any other type of personal jurisdiction case.
The Rental Car
 . Note that the World-Wide Court does not say, “if its allegedly defective merchandise that was sold into the state has there been the source of injury.” Because the Audi involved in the accident in World-Wide had not been sold in Oklahoma, the Court’s language suggests that, as long as the defendant is serving the in-state market, it will be subject to jurisdiction for injuries caused in the state by products sold elsewhere.
19. The first part of the minimum contacts test is satisfied here: The claim arises out of a deliberate contact of Patrikas in California, driving a car there, which imposes the predictable risk of causing an accident. But might the court hold that it isn’t “fair and reasonable,” under the second part of the test, to drag the widow back to California on these facts? Shouldn’t that deep pocket corporation go to her instead?
Probably not. The Supreme Court suggested in Burger King Corp. v. Rudzewicz that a defendant who has directed activities to the forum must present “a compelling case” (471 U.S. at 477) before jurisdiction will be found unreasonable. Patrikas probably cannot make that case. Acme’s claim arises out of her deliberate choice to engage in conduct in California. California has an interest in regulating that conduct and compensating injuries that result from it. And Acme has an interest in bringing suit where the accident happened, since witnesses and evidence may be located there. Despite some language in Burger King that might support the argument,  it is hard to find cases that reject jurisdiction under circumstances like this, involving an imbalance in the economic resources of the parties. Patrikas will probably have to defend this action in California, even though it would be a huge inconvenience to her to do so, and it would be much easier for Acme to litigate in Georgia than for her to do so in California.
20. a. This statement implies that taking advantage of the benefits and protections of the laws of the state is an alternative basis for personal jurisdiction, independent of the minimum contacts test. On the contrary, the purpose for asking whether the defendant has taken advantage of the benefits and protections of the state’s laws is to evaluate the defendant’s contacts with the state, to ascertain whether they are of the “quality and nature” to support jurisdiction. If the defendant’s in-state acts demonstrate a deliberate effort to take advantage of the benefits and protections of the forum state’s laws, it is a fair inference that these acts satisfy the minimum contacts test, since minimum contacts jurisdiction is based on the defendant’s deliberate decision to act in the forum state for her own purposes.
b. The problem with this statement is that it suggests that a defendant is subject to jurisdiction in a state for any claim if she has some contacts with the state. Not so. Conducting some activity in a state does not support such wide jurisdiction. Unless the contacts are so substantial as to pass that ambiguous “G” line in Figure 1-1, the defendant is only subject to jurisdiction for claims related to the in-state contacts.
Precision and clarity are the stock-in-trade of the law student as well as the lawyer. A few students who make statements like this on the exam have not really grasped the distinction between specific and general in personam jurisdiction. But most really mean to say, “The defendant may be sued in the state on this claim under the minimum contacts test because it has purposely conducted activities there, and the claim arises out of this purposeful contact.” This second statement is not only a great deal more precise than the first, but it is accurate, while the other, as it stands, is not. It is differences like this that separate the daffodils from the dandelions in the Merry Month of May.