Husband and wife divorce and the wife moves across the country to California. The wife waits until the husband visits California in order to serve him with the divorce papers. The husband objects to personal jurisdiction in California, believing it improper for him to be served just because he was physically present in the state.
A non-resident defendant is properly served if the defendant is physically located in the forum state and the forum state may exercise personal jurisdiction over them without violating due process.
Dennis and Francie Burnham got married in West Virginia in 1976 and moved to New Jersey a year later. A few years later Francie Burnham moved with the couple’s kids to California. Francie then commences divorce proceedings in a California state court and waits until Plaintiff Dennis visits California to see their kids and to conduct business to serve him with process.
Does service on a transient defendant offend the notions of fair play and substantial justice and due process?
Yes. Due process allows personal jurisdiction over a transient defendant.
Scalia for the plurality
1. Certain jurisdictional practices that have historical roots satisfy due process, regardless of the defendant’s contacts with the forum state.
2. Transient jurisdiction has been allowed since before the Fourteenth Amendment’s enactment. A lesser known jurisdictional practice and one with less history would need to satisfy the minimum contacts test.
3. Historically, transient jurisdiction was the only way to establish personal jurisdiction over a non-consenting, non-resident defendant.
4. Plaintiff Burnham relies on Shaffer v. Heitner, which holds that a state cannot exert personal jurisdiction over a non-resident defendant just because they own property there. But Shaffner nor International Shoe, from which the minimum contacts analysis comes from, say anything about personal jurisdiction that arises from service within the forum state.
5. The minimum contacts test is an alternative to establishing personal jurisdiction when transient jurisdiction is not available.
Justice White concurring
1. Transient jurisdiction is too historically rooted to overturn without a compelling reason, and there is not one present in this case.
Justice Brennan with Justices Marshall, Blackmun, and O’Connor concurring
1. A practice should not be Constitutional just because it is historically rooted. All analysis must satisfy fairness and due process. Transient jurisdiction satisfies this test. This point was dismissed by Justice Scalia.
Justice Stevens concurring
1. Justice Scalia’s historical reasoning and Justice Brennan’s fairness test both support the use of transient jurisdiction.