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Personal Jurisdiction

Background Notes

"Personal jurisdiction" is the term used in American law to describe the geographic "reach" of a court sitting in a particular state--that is, the court’s authority to hear and decide not only claims against citizens of the state (or federal district), but also claims against persons who may reside far away, and who may never even have set foot in the state. In this usage, "person" and "personal" refer not only to natural persons, but also to corporations and other entities the law recognizes as existing separately from their individual constituents.

The problem of personal jurisdiction arises because, in a civil case, it is the plaintiff who typically makes the initial choice as to where to bring the lawsuit, and he may choose a court whose location would make it a costly and logistically difficult forum for a distant defendant. In a legal system that relies upon the testimony of human witnesses, and upon documents and other physical evidence, having one party’s witnesses and evidence--and its decisionmakers--far from the place where the case is litigated can make for a genuine disadvantage, even in an age of advanced communications and transportation.

At the outset of a case, a defendant is entitled to have the court determine, first, whether it has authority under state (or federal) law to exercise jurisdiction over the defendant, and, second, whether the exercise of such authority would violate the defendant’s constitutional right to due process.

Even if the court determines that it may exercise jurisdiction over a defendant, this does not mean that it must: a defendant may be able to establish that efficiency and other considerations warrant the transfer of a case to another suitable court, notwithstanding the deference normally given to a plaintiff’s choice of forum. A defendant sued in a distant state court may also be able to moderate any adverse consequences by "removing" the case from state to federal court. Finally, the question of where a case is to be heard is different from that of what law is to be applied: a Massachusetts court might hear a case involving a Florida defendant even if a contract provision, for example, required the Massachusetts court to apply Florida law to decide the case.

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State Jurisdictional Law

State law typically grants courts a variety of potential bases for exercising personal jurisdiction over a defendant. Using Massachusetts as an example, a Massachusetts court has personal jurisdiction over residents of the commonwealth as to any cause of action. Such jurisdiction applies to any person who is "domiciled" in the state, any corporation or partnership that organized under the laws of Massachusetts, and any person or entity who maintains his (its) principal place of business in the commonwealth. A non-Massachusetts corporation with its principal place of business elsewhere may also subject itself to such "general" personal jurisdiction--that is, jurisdiction for purposes of any lawsuit--if it registers to do business here, or if it conducts a substantial amount of business here.

Personal jurisdiction over a non-resident of Massachusetts may also arise by virtue of "transactions or conduct" alleged to have occurred in the commonwealth and to have given rise to the particular lawsuit in question. Such "specific" jurisdiction--limited to one case--is conferred by Massachusetts’s "long-arm statute," a common feature of state procedural law.

Finally, even a foreign corporation that does no business in Massachusetts may be subjected to jurisdiction if an appropriate corporate officer is served with process while she is present in the commonwealth, however transiently, in her official capacity.

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Constitutional Limits

Any exercise of personal jurisdiction by a state or federal court is constrained by the requirements of the Fifth and Fourteenth Amendments to the United States Constitution, which protect a person’s "liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations." Burger King Corp. v. Rudzewicz, 105 S.Ct. 2174, 2181 (1985) (internal quotation omitted). Under a long-established formulation of the constitutional rule, a defendant may only be subjected to suit in a state with which he has "purposefully established ‘minimum contacts’" through "some act by which [he] purposefully avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Id. at 2183.

Such "purposeful availing" has elsewhere been characterized as "participat[ing] in the economic life of" or demonstrating an "intent... to exploit the local economy" of the forum state. Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc., 764 F.2d 928 (1st Cir. 1985). Put another way, if the defendant’s contacts with the forum state were "deliberate and not fortuitous," then "the possible need to invoke the benefits and protections of the forum’s laws"--and hence also the obligation to submit to suit there--becomes "reasonably foreseeable,... rather than a surprise." Good Hope Industries, Inc. v. Ryder Scott Co., 378 Mass. 1, 11 (1979).

Availing oneself of the privilege of doing business in a state need not involve physically entering the state, "[s]o long as a commercial actor’s efforts are ‘purposefully directed’ toward residents of" the state." Burger King, 105 S.Ct. at 2184 (citations omitted). Courts have long recognized that "it is an inescapable fact of modern commercial life that a substantial amount of commercial business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted." Id. Thus, a defendant’s contacts with the forum state by telephone, mail or other media have been regarded as no less significant for establishing jurisdiction than personal visits. E.g., Haddad v. Taylor, 32 Mass. App. Ct. 332, 335 (1992).

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Personal Jurisdiction And The Internet

While the difficulty of applying these traditional principles of "personal jurisdiction" law to commercial and noncommercial activity on the Internet has perhaps been exaggerated, such application does present at least two fundamental problems.

First, the Internet clearly makes it possible, to an unprecedented extent, for an actor to conduct business simultaneously and continuously in a potentially unlimited number of geographical places. It does not necessarily follow, however, that any Internet business can similarly afford to litigate everywhere and anywhere at once--especially since litigation still largely relies upon the old-fashioned real-time physical presence of human witnesses, documents and other physical evidence, and decisionmakers. Thus, it may be unfair to apply to Internet actors the assumption that seems implicit in the traditional jurisdictional rules: that any defendant who takes advantage of modern means of conducting multistate commerce can and should be expected to have the wherewithal to submit to multistate litigation.

The second, related problem arises from the constitutional requirement that a defendant’s entry into the forum territory to conduct business have been deliberate and purposeful. In Internet commerce, even if a transaction between actors in two different jurisdictions may be said to involve "entry" by either into the territory where the other resides, such a transaction may well be completed without either actor learning the geographical location--or even the physical identity--of the other. To an extent untrue with any prior technology, an Internet actor may "enter" a territory without benefit of the usual signposts at the border, giving notice that one is crossing into the territory, and may be expected to submit to local rules and authority.

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