PERSONAL JURISDICTION AND THE ApPEARANCE TO CHALLENGE
JURISDICTION IN TEXASt
W. Frank Newton·
jeremy C. Wicker"
TABLE OF CONTENTS
I. THE CONSTITUTIONAL QUESTION . . . . . . . . . . . . . . • . • •.
A. United States Supreme Court Cases: Analysis.......
B. United States Supreme Court Cases: Summary......
C. Texas Supreme Court Cases
D. Fifth Circuit Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
II.
LONG ARM JURISDICTION UNDER TEXAS LAw
492
492
532
537
541
549
Requirement of Texas Long-Arm Statutes of
Substituted Service on State Officer is an Anachronism 549
B. Texas Rule of Civil Procedure 108 as a Long-Arm
Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 555
SPECIAL ApPEARANCE PRACTICE IN TEXAS. • . . . . . . . .. 560
A. From York v. Texas to Kawasaki Steel Corp. v.
Middleton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 560
B. Special Appearance After Default Judgment. . . . . . . .. 564
C. Validity of York v. Texas After Shaffer v. Heitner 572
A.
III.
IV.
JURISDICTION OVER DEFENDANTS IN FEDERAL
COURTS: FEDERAL VERSUS STATE LAw
Utilizing a Federal Long-Arm Statute Under Federal
Rule of Civil Procedure 4(e): Non-Diversity and
Diversity Cases .. .. .. .. . .. .. .. .. .. .. . .. .. .. . ....
B. Utilizing a State Long-Arm Statute Under Federal
Rule of Civil Procedure 4(e): Non-Diversity Cases..
C. Utilizing a State Long-Arm Statute Under Federal
Rule of Civil Procedure 4(e): Diversity Cases
D. Utilizing Federal Rule of Civil Procedure 4(/):
Service on a Nonresident Defendant (or His Agent) in
the Forum State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
578
A.
579
581
585
587
tCopyright 1986 W. Frank Newton and Jeremy C. Wicker. All rights reserved.
• Dean and Professor of Law, Texas Tech University School of Law. B.A. 1965,
J.D. 1967, Baylor University; LL.M. 1969, New York University SchOOl of Law;
LL.M. 1978, Columbia University School of Law.
"Professor of Law, Texas Tech University School of Law. B.E.E. 1965, Georgia Institute of Technolov; J.D. 1970, University of Houston College of Law;
LL.M. 1972, Yale University School of Law.
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Utilizing the Bulge Long-Arm of Federal Rule of Civil
Procedure 4(/)
592
V. CONCLUSION. • • • • • • • • • • • • • • • • • • • • • • . . • • • • • • • • • • • •• 595
E.
INTRODUCTION
In 1964 the late Professor E. Wayne Thode wrote a law review article on personal jurisdiction and appearances in court
to challenge jurisdiction over defendants.· While he canvassed
the then existing constitutional rules and law of all the states
respecting jurisdictional contests, he ultimately focused on the
Texas special appearance practice. 2 Professor Thode's article
has been without a doubt the most widely cited article in the
nation on the subject of appearances to challenge jurisdiction.
The purpose of this Article is to bring the subjects addressed in
Professor Thode's article up to date with respect to state and
federal courts sitting in Texas.
I.
THE CONSTITUTIONAL QUESTION
United States Supreme Court Cases: Analysis
In a separate opinion Mr. Justice Black complained in International Shoe Co. v. Washington 3 that reading a natural law concept
of fair play into the fourteenth amendment due process language " ... makes judges the supreme arbiters of the country's
A.
I Thode, In Personam jurisdiction: Article 2031B; The Texas "Long-Arm" jurisdiction
Statute; And the Appearance to Challenge jurisdiction in Texas and Elsewhere, 42 TEX. L.
REV. 279 (1964) [hereinafter cited as Thode].
2See infra text accompanying notes 407-34.
"326 U.S. 310 (1945). For other discussions of the constitutional question in
jurisdiction cases, see Brewer,jurisdiction in Single Contract Cases, 6 U. ARK. LfITLE
ROCK LJ. I (1983); Brilmayer, How Contacts Count: Due Process Limitations on State
Court jurisdiction, 1980 SUP. CT. REV. 77 (1980); Currie, The Growth of the Long Arm:
Eight Years of Extendedjurisdiction in Illinois, 1963 U. ILL. L.F. 533; Ehrenzweig, The
Transient Rule of Personal jurisdiction: The "Power" Myth and Forum Conveniens, 65
YALE L.J. 289 (1956); Foster, Long-Arm jurisdiction in Federal Courts, 1969 WIS. L.
REV. I; Green, jurisdictional Reform in California, 21 HASTINGS LJ. 1219 (1970);
Hazard, A General Theory of State-Court jurisdiction, 1965 SUP. CT. REV. 241; Lilly,
jurisdiction Over Domestic and Alien Defendants, 69 VA. L. REV. 85 (1983); Smit, The
Enduring Utility ofIn Rem Rules: A Lasting Legacy ofPennoyer v. Neff, 43 BROOKLYN L.
REV. 600 (1977); Traynor, Is This Conflict Really Necessary7, 37 TEX. L. REV. 657
(1959); Von Mehren Be Trautman,jurisdiction to Adjudicate: A Suggested Analysis, 79
HARV. L. REV. 1121 (1966); Zaminit, Q!.tasi-in-Remjurisdiction: Outmoded and Unconstitutiona17, 49 ST.JOHN'S L. REV. 668 (1975); Note, Long-Arm jurisdiction in Commercial Litigation: When is a Contract a Contact7, 61 BAYLOR L. REV. 375 (1981); Note,
The Constitutionality of Seider v. Roth After Shaffer v. Heitner, 78 COLUM. L. REV. 409
(1978); Note, Developments in the Law, State-Court jurisdiction, 73 HARV. L. REV. 909
(1960).
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laws and practices."4 Justice Black was primarily concerned
with the balance of power between the states and the federal
government, 5 but his point proved to be prophetic in its narrowest sense. In deciding when a state court may exercise jurisdiction over a nonresident, judges have become the supreme
arbiters of practice. Predictable parochial tendencies have
been curtailed by a changing and changeable doctrine of "substantive" due process. 6
Before 1945 it was generally accepted that exercises ofjudicial power were related to physical presence; when a defendant
was within a territorial area, that defendant was subject to the
rules and judicial control of the situs government. 7 The case of
Pennoyer v. Neffs clearly articulated the concept of territorial jurisdiction.9 One of the key supports for Mr. Justice Field's
opinion in Pennoyer was the concept of sovereign equality.
"The several states are of equal dignity and authority, and the
independence of one implies the exclusion of power from all
others."lo Cited as authority are Story in his work on conflict
of laws 11 and Wheaton's treatise on public international law. 12
326 U.S. at 322, 326.
•A rule of constitutional law can be reviewed either from a theoretical standpoint or from a practical standpoint. When a rule of constitutional law must be
regufarly applied by state trial courts it is reasonable to measure it not just for
theoretical soundness but also for practical strength. A vague rule is one which
has little practical strength.
6The "due process" clause of the 14th Amendment has been utilized to protect
against unfair methods and unfair results. When it is used to protect against unfair methods, the term "procedural" due process applies. See infra at note 32 for
discussion. When the "due process" clause is used to protect against unfair results, the term "substantive" due process applies.
'The modem concept of "nations" dates primarily from the 15th century. An
essential element of this concept is mutually exclusive governmental power defined geographically.
895 U.S. 714 (1877).
9This concept was originally set forth by the Dutch scholar Ulric Huber. Huber
espoused three principles:
I. The laws of each state have force within the limits of that government and bind all subjects to it, but not beyond.
2. All persons within the limits of a government, whether they live there
permanently or temporarily, are deemed to be subjects thereof.
3. Sovereigns will so act by way of comity that rights acquired within
the limits of a government retain their force everywhere so far as
they do not cause prejudice to the power or rights of such government or of its subjects.
Q!.wted in E. LORENZEN, SELECTED ARTICLES ON THE CONFUCT OF LAws 164 (1947).
"°95 U.S. at 722.
II /d.
12/d.
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Story drew heavily on concepts from public internationallaw;13
Wheaton was actually setting forth accepted norms of public
international law.14 Thus the rule of territorial jurisdiction described in Pennoyer is a rule developed to apply to nations, not
states within a federal system. Except where based on consent,
no nation has the right to assert legal control over another nation. 15 By contrast, a state within the United States shares legal
power with other states and with the federal government. 16
Therefore, the conceptual foundation for territorial jurisdiction as applied to states within the United States was always
suspect, but the concept of territorial jurisdiction served as a
functioning rule of law so long as it worked reasonably well.
And it worked reasonably well as long as most of the business
and personal dealing of citizens related primarily to one state.
By the end of World War II, many business and personal dealings had taken on a decidedly interstate character. At this
point territorial jurisdiction ceased to be a rule of law which
worked reasonably well. 17
When the Supreme Court abandoned the territorial jurisdiction rule for in personam cases, it left a rule of great certainty
and precision for one of great confusion and ambiguity. That,
in a nutshell, was the gist of Mr. Justice Black's prophetic complaint-the new rule is no rule at all; it simply makes judges the
supreme arbiters of practice. However true this criticism may
be, it does not support retention of the rule of territorial jurisdiction, which was never conceptually sound; when it ceased to
function well, it had to be changed.
There were three basic options available to the Court. First,
the Court could have retained the concept of territorial jurisdiction and simply engrafted exceptions on it. Second, the
Court simply could have allowed states to exercise general jurisdiction over nonresidents, subject to exceptions. 18 Third,
10J. STORY, COMMENTARIES ON THE CONFLICf OF LAws 1183 (1834).
14L. WHEATON, INTERNATIONAL LAw, Chapter 2 (1866).
'OSee generally HENKIN, PUGH, SCHACHTER, & SMIT, INTERNATIONAL LAw 1·27
(1980).
'OSee generally L. TRIBE, AMERICAN CONSTITUTIONAL LAw 722 (1978).
17 Changes in patterns of dealing from primarily intrastate to frequently inter·
state developed gradually. In large measure these changes were reBections of
technological advancement. Recovery from the Great Depression and widespread
application. of technology were hastened by the effort of the United States in
World War II.
18This approach was advocated by Mr. Justice Brennan in his dissent to World·
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299 (1980).
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the Court could have attempted to formulate a new rule which
defines state jurisdictional authority within our federal system.
The first alternative, that of retaining the concept of territorial jurisdiction and simply engrafting exceptions, had already
been utilized. As Mr. Justice Stone pointed out in International
Shoe 19, there existed some authority for exercises ofjurisdiction
which did not strictly comply with the rule of Pennoyer 20 • But as
attractive as this approach might appear at first blush, particularly given the nature of the doctrine of precedence, there existed two related obstacles preventing its continued use.
Because of the volume and nature of interstate dealings, effective exceptions to the territorial rule would have to be so extensive as to swallow the rule. This is not only logically
unacceptable, but considering the vast attraction of the bar and
bench to the concept of territorial jurisdiction, it is practically
suspect. Pennoyer announced a rule which seemed right. When
a nonresident steps into a state, it seems only fair that he be
required to play by local rules and answer in local courts. The
rule of territorial jurisdiction was so clear in its application: the
nonresident either was or was not present within a state. If the
general rule were retained, it would have been hard to develop
acceptance of exceptions which undercut the rule in general,
given the attraction of that rule.
The second alternative was to allow states to exercise general
jurisdiction over nonresidents, subject to exceptions. This approach would be acceptable only if states were to exercise selfrestraint against parochialism. States have not been known for
their ability to exercise restraint in this area. Indeed, state
court exercises ofjurisdiction have often been declared unconstitutional. 21 Further, there existed a general view that defendants are entitled to be sued where they live. 22 Therefore, there
has been little support for a general rule which would subject a
nonresident defendant to jurisdiction in the plaintiff's state. 2S
19
326 U.S. 310.
"'See Milliken v. Meyer, 311 U.S. 457 (1940); Young v. Masci, 289 U.S. 253
(1932); Blackmer v. United States, 284 U.S. 421 (1931); Hess v. Pawloski, 274
U.S. 352 (1926); McDonald v. Mabee, 243 U.S. 90 (1916).
"See, e.g., Hanson v. Denckla, 357 U.S. 235 (1958); Shaffer v. Heitner, 433 U.S.
186 (1977); Kulko v. California, 436 U.S. 84 (1978); World-Wide Volkswagen, 444
U.S. 286; Helicopteros Nacionales de Columbia, SA v. Hall, 466 U.S. 408 (1984).
uThis general view is reflected in state and federal venue statutes. For example
see 28 U.S.C. 1404 (1985) and TEX. CIV. PRACTICE & REMEDIES CODE ANN.
§ 15.001-.040 (1985) .
•sCf. Shaffer, 433 U.S. at 300 (Brennan,J., dissenting), which provides in part:
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International Shoe represents the Supreme Court's first attempt at formulating a rule to replace that of territorial jurisdiction. The elements of that initial formulation are wellknown. A nonresident defendant is subject to in personam jurisdiction if he has certain minimum contacts with a state such
that the maintenance of a suit does not offend "traditional notions of fair play and substantialjustice."24 To the extent that a
nonresident defendant exercises the privilege of conducting activities within a state and etUoys the benefits and protections of
the laws of that state, he may be required to respond to a suit
brought on obligations which arise out of or are connected with
the activities within the state. 25 To borrow terminology from
the territorial jurisdiction rule, in such a case the nonresident
defendant has a "presence" in the state because of his
"contacts."
In his majority opinion in International Shoe Mr. Justice Stone
conceded that the
criteria by which we mark the boundary line between
those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. . .. Whether due
process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and
orderly administration of the laws which it was the
purpose of the due process clause to insure. 26
Territorial jurisdiction-a largely mechanical, relatively clear,
rule of law-was replaced by a rule which is not at all mechanical and is relatively unclear. The Supreme Court has thus been
faced with trying to make the new rule clearer lest they in fact
make '~udges the supreme arbiters of the country's laws and
Surely International Shoe contemplated that the significance of the contacts
necessary to support jurisdiction would diminish if some other consideration helped establish that jurisdiction would be fair and reasonable.
The interests of the State and other parties in proceeding with the case in
a particular forum are such considerations.
•4326 U.S. at 316 (citing Milliken, 311 U.S. at 463).
"The requirement that a suit be brought on obligations which arise out of or
are connected with activities within the state is often called the requirement of
"specifically affiliating circumstances."
26
526 U.S. at 319.
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practices."27 Since International Shoe there have been repeated
attempts at making its rule clearer.28
Before briefly reviewing the cases by which the Supreme
Court attempted to clarify this rule, several preliminary matters
deserve attention. First, what name is to be given to the question being considered? The issue is what constitutional constraints exist on the exercise of jurisdiction by a state court
over a nonresident defendant. Because there are several types
of jurisdiction, some special terminology is useful. The term
')udicial jurisdiction" will be used to describe the power of a
state court to decide cases involving nonresident defendants. 29
Judicial jurisdiction can also be described in terms of "amenability to process."50 The constitutional standard is found in the
due process constraints of the fourteenth amendment. This
constitutional standard is substantive as opposed to
procedural.S J
A second type of constitutional standard is found in the due
process constraints of the fourteenth amendment and limits the
effective assertion ofjurisdiction. This standard is procedural,
as opposed to substantive. The issue is not whether a state
court may reasonably, or with justice, or consistent with fair
play cause a defendant to answer and participate in a judicial
proceeding, but whether or not there has been proper notification of the proceeding. This issue shall be called procedural
due process. Here the rules are fairly straightforward and have
not tended to cause many problems. 52
'7Id. at 322, 326.
'8In the forty year period since International Shoe the Supreme Court has handed
down twelve major opinions interpreting territorial jurisdiction-an average of
more than one opinion every three years.
29Judicial jurisdiction means the power of a court to act "against the particular
person ... against whom, or the thing against which, the court is asked to act." R.
LEFLAR, AMERICAN CONFLICTS LAw, § 3 (3d ed. 1977). In order to have judicial
jurisdiction a court must havejurisdiction over the subject matter involved, as well
as over the person.
""For an example, see Kawasaki v. Middleton, 699 S.W.2d 199 (Tex. 1985).
.. In order to satisfy subject matter jurisdiction, examination of state statutory
and state constitutional authority is sufficient. For the court to have jurisdiction
over the person, however, both procedural and substantive due process requirements must be satisfied.
"Procedural due process requires "notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . The notice must be of
such a nature as reasonably to convey the required information .... and it must
afford a reasonable time for those interested to make their appearance." Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citations omit-
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Finally, not only must a court be exercising judicial jurisdiction within the limits of substantive due process after having
given notice which satisfies procedural due process, the law applied to determine the outcome of the dispute must pass constitutional muster. 33 The rule of law chosen may be one
determined by legislative mandate or by the trial court's application of a choice-of-Iaw rule. In the former case, the issue is
one of constitutional limits on "legislative jurisdiction."34 In
the latter case, the issue is one of constitutional limits on choice
of law.35 Conceptually, there is no reason to view these questions differently since in both cases the issue relates to the operative rule of law. For purposes of fairness to the defendant, it
makes no difference whether the rule of law is a product of legislative orjudicial action. Nevertheless, the Supreme Court has
retained separate labels for constitutional constraints on the
application of legislatively36 and judicially created37 rules of
law.
A typical case involving a nonresident defendant involves the
following issues:
I) Is there a statutory authorization for exercising
jurisdiction over the nonresident?38
2) Is procedural due process satisfied through the affording of proper notice and an opportunity to be
heard?
3) Is substantive due process afforded by satisfying
"traditional notions of fair play and substantial
justice"?
4) Is the rule oflaw, chosen by legislation or by judicial determination, constitutionally permissible?
Whether or not there exists statutory authorization for exercising jurisdiction is the first issue to be addressed. 39 Each state
fixes by the terms of its statutes the requirements for jurisdicted). See also Greene v. Lindsey, 456 U.S. 444 (1982); Mennonite Bd. of Missions
v. Adams, 462 U.S. 791 (1983).
"See question two in International Shoe, 326 U.S. at 321-22; Hanson, 357 U.S. at
254.
"See National Geographic Soc'y v. California Bd. of Equalization, 430 U.S. 551
(1977).
"See generally Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); Phillips Petroleum
Co. v. Shutts, 105 S. Ct. 2965, 2977-81 (1985).
56See National Geographic Society, 430 U.S. 551.
57 See Allstate Ins. Co., 449 U.S. 302; Phillips Petroleum Co., 105 S. Ct. 2965.
58For instance, the Texas long-arm statute is TEX. CIV. PRACTICE &: REMEDIES
CODE ANN. § 17.044-.069 (1985).
5SSee World-Wide Volkswagen Corp., 444 U.S. 290.
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tion over nonresident defendants. 4o Unless the terms of a
"long-arm" statute are satisfied, there is no basis for the exercise of jurisdiction.41 Once the terms of the statute are satisfied, three successive constitutional questions are raised: was
the defendant afforded proper notice; is the defendant amenable to forum jurisdiction; and was the rule of law applied sufficiently related to the contacts in this case? These questions are
logically related and, therefore, cannot be entirely separated.42
Nevertheless, this Article focuses primarily on the question of
amenability: Is judicial jurisdiction constitutional given the
facts of the case?
For in personam cases International Shoe began the process of
establishing a constitutional standard designed to fix the limits
of state court judicial jurisdiction over nonresident defendants.
It is helpful to remember how these Supreme Court cases operate. Each year thousands of cases are filed in state courts
against nonresidents. Obviously, the Supreme Court cannot
write an opinion in each of these cases, so certain major instructional cases are handed down by the Supreme Court to
serve as guidance for proper state court exercise ofjudicial jurisdiction. These cases, starting with International Shoe, are
therefore best understood from a chronological perspective. 4s
After International Shoe established the "minimum contacts"
rule in 1945, the question was what would suffice as a contact
sufficient to allow judicial jurisdiction to be properly exercised.
In 1957 the Supreme Court decided McGee v. International Life
Insurance CO.44 In McGee the Supreme Court upheld an exercise
ofjudicial jurisdiction based on a nonresident defendant's so<GOne could argue that all long-ann statutes are but historical relics. no longer
necessary. State statutes do not limit trial court jurisdiction to domiciliaries or
residents of the forum. Therefore a state could simply take the position thatjurisdiction is extended so far as is constitutionally pennissible. To date no state has
taken this approach. Many states reach the same result by adopting a long-ann
statute that authorizes exercises of jurisdiction to the limits fixed by the United
States Constitution. For an example. see Cal. Civ. Proc. Code Ann. § 410.10
(West 1973).
<I For this reason. a state whose long-ann statute does not extend to constitutional limits proscribes the ability of its own citizens to use forum courts in suits
against non-residents.
<2 Phillips Petroleum Co.. 105 S. Ct. 2965. is the best example of this close
correlation.
"Historians have a difficult time avoiding revision of earlier factual recitations.
The Supreme Court also has a difficult time avoiding in its judicial jurisdiction
cases revision of earlier cases. A chronological perspective is therefore of great
importance.
«355 U.S. 220 (1957).
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licitation by mail of a life insurance policy.45 After acceptance
of this solicitation by mail, the policy holder paid premiums by
mail to the nonresident's office in another state. In upholding
judicial jurisdiction the Court noted:
Today many commercial transactions touch two or
more states and may involve parties separated by the
full continent. With this increasing nationalization of
commerce has come a great increase in the amount of
business conducted by mail across the state lines. At
the same time modem transportation and communication have made it much less burdensome for a party
sued to defend himself in a state where he engages in
economic activity.46
The opinion went on to point out that the suit arose out of the
contact with the forum state, that the forum state had a "manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims,"47 and that
plaintiff residents would be at a severe disadvantage if they
were forced to sue in distant forums since costs might be prohibitive and witnesses unavailable; therefore, inconvenience to
the nonresident insurer would not amount to a denial of due
process.48
Just one year later the Court again addressed the question of
the constitutional limits applicable to judicial jurisdiction. The
1958 case was Hanson v. Denckla,49 another "letter" case. In
Hanson, unlike McGee, the sender of the letter did not solicit a
contract in the forum state; rather, after the contract came into
existence, the recipient of the letter moved to the forum
state.50 Therefore, the defendant in Hanson did not enjoy benefits and protections of the forum state's laws in quite the same
way as the defendant in McGee did. Instead, a business relationship established between a settlor in Pennsylvania and a Delaware trust company was affected incidentally when the settlor
moved to Florida.
"The Texas insurance company which bought out an Arizona insurance company, contacted the California policyholder by mail and offered reinsurance as an
option to retention of an existing policy. There were no other business contacts
with California. McGee, 355 U.S. at 221-22.
'6McGee, 355 U.S. at 222-23.
·'ld. at 223.
,sld. at 224.
·°357 U.S. 235.
""ld. at 238-39.
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The first relationship Florida had to the agreement
was years later when the settlor become domiciled
there, and the trustee remitted the trust income to her
in that State. From Florida Mrs. Donner carried on
several bits of trust administration that may be compared to the mailing of premiums in McGee. But the
record discloses no instance in which the trustee performed any acts in Florida that bear the same relationship to the agreement as the solicitation in McGee.
Consequently, this suit cannot be said to be one to enforce an obligation that arose from a privilege the defendant exercised in Florida. 51
Speaking for the majority, Mr. ChiefJustice Warren recounted
how the "rigid rule" of Pennoyer was supplemented by the "flexible" standard of International Shoe, but warned that "it is a mistake to assume that this trend heralds the eventual demise of all
restrictions on the personal jurisdiction of the state courts. "52
The test propounded in International Shoe, McGee and Hanson
required that any constitutional assertion by a state court ofjudicial jurisdiction over a nonresident defendant be predicated
on a contact by which the defendant intentionally accepted the
benefits and protections of the forum state's laws, and the
cause of action arose out of that contact. 53
The precise meaning of this test was not easy to understand,
and its application to various fact situations was difficult. Indeed, one had to look no further than McGee and Hanson to find
ample illustration of the difficulty. The operative facts in JI1cGee
were that a California resident purchased a life insurance policy
from an Arizona insurance company in 1944. The place and
circumstances of the purchase were not detailed. In 1948 a
Texas company agreed to assume the insurance obligations of
the Arizona company. The Texas insurance company mailed a
reinsurance certificate to the policy holder in California offering insurance in accordance with the terms of the original policy. The offer was accepted, and from 1948 into 1950
premiums were paid by mail from California to Texas. Neither
the Arizona insurance company nor the Texas insurance company had ever had any office or agent in California, and the
Texas company had never solicited or done business in Califor.. Id. at 252 (footnote omitted).
'OId. at 251.
"Hanson, 357 U.S. at 253; McGee, 355 U.S. at 223. See also International Shoe, 326
U.s. at 319.
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nia except for its dealings in this case.54 The Court held an
exercise of jurisdiction by a California court over the Texas
company in a dispute arising out of the policy to be constitutionally permissible. 55
Hanson involved more complicated facts, and there were significant differences of view as to what the facts meant.56 According to the majority opinion, the nonresident defendant, a
Delaware trust company, had no office in Florida, transacted no
business there, none of the trust assets were held or administered in Florida and there was no solitication of business in
Florida. 57 A domiciliary of Pennsylvania executed an inter vivos
trust in Delaware naming a Delaware trust company as
trustee.58 Later the Pennsylvania domiciliary moved to Florida.
These contacts do not match those of McGee primarily because
there was no solicitation in Florida. 59 Constitutional limits on
the exercise of personal jurisdiction over nonresident defendants will vary with the quality and nature of the defendant's activity.60 A constitutionally permissible exercise of jurisdiction
requires that the nonresident defendant purposefully avail himself of conducting activities within the forum state, which invokes the benefit and protections of the forum state laws. 61
In one sense the test is dear: There must be a purposeful act
by the nonresident. But what constitutes a purposeful act, and
how will the purposefulness of the act be proved? Is the initial
... See supra note 45.
"The opinion stressed the special interest of states in protecting citizens in
cases involving claims against insurance companies. This type of problem is special in that insurance companies operate in each state pursuant to that state's assertion of control to protect policy holders.
""Hanson, 357 U.S. at 262 (Douglas,j., dissenting).
&7 Hanson, 357 U.S. at 252.
'Old. at 238-39.
··Of course the defendant was paid a fee for acting as trustee and in that capacity remitted income to the settlor in Florida. But this fact was the result of an
action by the plaintiff, not attributable to the defendant.
600nce again it becomes clear that the search for "fairness" will be difficult. A
reference to the quality and nature of defendant's activity means that when contacts or lack of contacts are considered, some contacts will count more than
others, and lack of certain contacts will be very important. But there is to be a
general rule explaining how contacts count. This is logically impossible. Either
there is a general rule which determines how all contacts count or there are multiple rules determining how different contacts count. After trying for years to formulate a general rule, the Supreme Court now appears content to use different
rules, although general rubric from their first approach is retained. See infra notes
250-80 and accompanying text.
6. In the situation of divorce jurisdiction this is not true. See infra notes 261-65
and accompanying text.
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agreement between the parties critical? In McGee, and in Hanson's recitations about McGee, the solicitation of a contract by
the defendant was critical, but is the timing of the solicitation
legally or logically telling? In Hanson, would it be proper to
show that even though the initial solicitation took place in Delaware, subsequent relations between the Florida settlor and the
Delaware trust company legally and logically amounted to a solicitation in Florida? Perhaps even more important, what
would be the effect of showing that the Delaware trust company
actively solicited a trust agreement with a settlor knowing that
the settlor intended to move or in all probability might move to
Florida? Would the results in McGee have been different if the
Texas insurance company had not offered a new policy to the
policyholder in California but had simply chosen to keep the
original policy in effect?62 These and similar questions led to
great confusion and disparate results. 63
Notwithstanding these difficulties, for nineteen years the
Supreme Court said nothing more. Then in 1977 it issued an
opinion which contained the elements of a broader doctrinal
view of due process constraints on the exercise ofjudicial jurisdiction over nonresident defendants. The majority opinion of
Mr. Justice Thurgood Marshall in Shaffer v. Heitner 64 set forth
these elements. The trial court asserted jurisdiction pursuant
to a statute which allowed a stockholder of a business incorporated under the Delaware laws to invoke quasi in rem jurisdiction over any property of a nonresident defendant found in the
state. 65 Neither the stockholder nor the corporation was a Delaware resident,66 and the subject of the suit involved activity
solely outside Delaware. 67 The only connection with the forum
6'State insurance law requires that policy holders be offered reinsurance as a
prerequisite to such a company takeover. Thus the question posed would not
actually arise.
6'See the cases cited in Lakeside Bridge & Steel Co. v. Mountain State Constr.
Co., 445 U.S. 907, 909-10 (1980) (White,J., dissenting from denial of certiorari).
64
433 U.S. 186.
6SDEL. CODE ANN. tit. 10. § 366 (1975).
60 Of course, Greyhound was a corporation created under the laws of Delaware.
Defendants committed antitrust violations which injured Greyhound. a Delaware
corporation. In that sense the defendants committed a wrong which caused injury
in Delaware. See infra text accompanying notes 188-93. But the corporation in
terms of the situs of its creation is not ultimately important since the corporation
had its principal place of business in Arizona and the real interest affected was that
of corporation ownership held by the stockholders. The stockholders did not live
in Delaware. Cf. Shaffer, 433 U.S. at 219-28 (Brennan,J., dissenting in part).
61 Shaffer, 433 U.S. at 189-90.
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state was the "presence" of specific intangible personal property belonging to the nonresident defendants. 68 After disposing of certain preliminary matters,69 Mr. Justice Marshall
reviewed the development of the constitutional rule ofjudicial
jurisdiction. 70 As applied to in personam cases the rule had
moved away from a territorial concept to one described as a
standard of "fairness and substantial justice."71 Logically there
is no reason to distinguish between in personam, in rem or
quasi in rem jurisdiction. The case for applying the same test is
simple and straightforward. "The phrase, 'judicial jurisdiction
over a thing,' is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing."72 After examining and rejecting various arguments in favor of retaining the
previous illogical difference between in personam jurisdiction,
on the one hand, and in rem and quasi in rem jurisdiction, on
the other,7S the opinion concludes "that all assertions of statecourt jurisdiction must be evaluated according to the standards
set forth in International Shoe and its progeny."74 When the
Court applied the standard, it found jurisdiction constitutionally wanting. The Court rejected the argument that Delaware
had a strong interest in supervising the management of a business incorporated under its laws because of the "failure of the
Delaware legislature to assert the state interest."75 Additionally there was no showing that Delaware was a fair forum for
this litigation. 76 It might be that Delaware law should apply,
68That property included common stock, certain preferred stock as well as all
options and warrants to purchase stock held by defendants. ld. at 191.
00 A major "preliminary" matter was whether to focus on judicial jurisdiction or
to focus on the procedural due process question raised by Sniadach v. Family
Finance Corp., 395 U.S. 337 (1969) and its progeny such as Fuentes v. Shevin,
407 U.S. 67 (1972); Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing, Inc. v. Di-Chem. Inc., 419 U.S. 601 (1975). The Delaware Supreme
Court chose to focus on the procedural due process question. Greyhound Corp.
v. Heitner, 361 A.2d 225 (1976). Mr. Justice Marshall, after noting this treatment
in the lower courts, criticizes the cursory treatment afforded the question ofjurisdiction to adjudicate and then proceeded to the main body of the opinion. Shaffer,
433 U.S. at 195.
7°Shaffer, 433 U.S. at 195·206.
?lId. at 206.
7°ld. at 207 (citing RESTATEMENT (SECOND) OF CONFLICT OF LAws § 56, Introductory Note (1971».
7'See Shaffer, 433 U.S. at 210-12.
741d. at 212. Three exceptions to this general approach were set forth in dicta in
Shaffer. See infra note 426.
7"Shaffer, 433 U.S. at 214.
7°Mr. Justice Brennan, while agreeing in general with the minimum contacts
analysis of the majority, nonetheless would have upheld jurisdiction. See Shaffer,
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but the Court held this was a different question from the fair
assertion of judicial jurisdiction question. 77 Finally, Delaware
law might well provide substantial benefits to the officers and
directors of a Delaware corporation, but "this line of reasoning
establishes only that it is appropriate for Delaware law to govern the obligations of appellants to Greyhound and its stockholders. It does not demonstrate that appellants have
'purposefully avail[ed themselves] of the privilege of conducting activities within the forum state.' "78
Before concluding that jurisdiction did not exist, the majority
opinion set out what appeared to be an intriguing new constitutional formulation. The Court described jurisdiction by relating the contacts among the defendant, the forum state, and the
litigation. 79 If this were a new way of setting out the proper
constitutional test, then Shaffer did more than extend the existing in personam rule to in rem and quasi in rem causes of
action. Shaffer raised two major questions: Was the constitutional standard now to be determined by this new tripartite
test, and if so, what do the "forum state" and "litigation elements" mean?
Less than one year after Shaffer, Kulko v. California 80 provided
some answers. Kulko raised the question of whether a father
who otherwise has no relevant contacts with the forum state81
can be subject to its jurisdiction in a case to increase childsupport payments because he sends his children to live with
their mother in that state. The California trial court, Court of
Appeals and Supreme Court upheld jurisdiction. The California Court of Appeals82 and Supreme Court8S based their deci433 U.S. at 219-28 (Brennan, J., dissenting in part). Mr. Justice Brennan concluded that it was not "unfair to insist that appellants make themselves available
to suit in a competent forum that Delaware might create for vindication of its
important public policies directly pertaining to appellants' fiduciary associations
with the State." [d. at 228.
77 Shaffer, 433 U.S. at 215 (citing Hanson, 357 U.S. 235).
'·Shaffer, 433 U.S. at 216 (citing Hanson, 357 U.S. 235).
'9Shaffer, 433 U.S. at 204.
80
436 U.S. 84 (1978) .
•• There were some unrelated contacts in this case. The father, while in the
service, spent a three-day stopover in California en route from a military base in
Texas to a tour of duty in California. In fact, the marriage took place in California
during this stopover. However, inasmuch as both parties were domiciliaries and
residents of New York State, this contact with California was purely fortuitous.
After the marriage the wife immediately returned to New York and the husband
followed as soon as he completed his tour of duty. Kulko, 436 U.S. at 86-87.
··Kulko, 133 Cal. Rptr. 627 (Cal. Ct. App. 1976).
··Kulko, 19 Cal. 3d 514, 564 P.2d 353 (1977).
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sions on the "reasoning that, by consenting to his children's
living in California, appellant had 'caused an effect in th[e]
state' warranting the exercise ofjurisdiction over him."84 According to the "effects" approach to jurisdiction, when a nonresident, by act or omission outside the forum state, causes an
effect in the forum state, he subjects himself to personal jurisdiction, where reasonable, in causes of action arising from that
effect. 85
The effects test addresses the defendant's contacts with the
forum state, but it does so in a way that could change the jurisdictional analysis to one of a factual basis. Prior to Kulko, the
United States Supreme Court discussed personal contacts as
either constituting or not constituting a purposeful act invoking the benefits and protection of the forum state's law.86 One
view of the effects approach would hold that when a defen'dant
causes an effect then jurisdiction will generally lie. 87 A more
restrictive view of the effects approach would hold that an effect caused by a defendant is a basis for jurisdiction only when
the act causing the effect is a purposeful act invoking the benefits and protection of forum state law. 88 The first view would
dramatically expand the constitutionally permissible reach of
jurisdiction; the second view would leave it unchanged.
Justice Marshall wasted no time in making it clear that "the
constitutional standard for determining whether the State may
enter a binding judgment against [a nonresident defendant] is
that set forth in this Court's opinion in International Shoe."89
The opinion then follows a straightforward recitation of the
major cases, including Shaffer. 90 The Court agreed with the
lower courts about what did not satisfy traditional notions of
fair play and substantial justice-unrelated contacts and upon
separation, the parties' agreement to allow their children time
with the other spouse in the forum state.91 The opinion then
focused on what the California Supreme Court found to be a
..Kulko, 436 U.S. at 88-89.
"See generally RESTATEMENT (SECOND) OF CONFLICT OF LAws § 37 (1971).
86See Hanson, 357 U.S. at 253.
"See Kulko, 133 Cal. Rptr. 627, 19 Cal. 3d 514, 564 P.2d 353.
88See the examples accompanying section 37 of the RESTATEMENT (SECOND) OF
CONFLJCT OF LAws (1971).
8DKulko, 436 U.S. at 92.
llOThe recitation is largely one of "catch" phrases. There is not any major logical discussion as to the proper meaning and application of the "catch" phrases.
Kulko, 436 U.S. at 92.
D'ld. at 86-90, 93.
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"purposeful act"-actively and fully consenting to send one of
his children, and sending him to live in California for the
school year. 92 Under the effects test, viewed expansively, the
nonresident defendant had purposefully availed himself of the
protections and benefits of the forum state's laws in two primary respects. First, the nonresident defendant enjoyed various governmental amenities through his child in the forum
state. Those amenities included police and fire protection, access to schools, hospitals, parks, libraries and museums.93 Second, the nonresident defendant saved money because the cost
of raising the child was borne by the spouse in the forum
state. 94
But when defendant's contacts are viewed from the perspective of International Shoe and its progeny, a different characterization of the facts emerges. "A father who agrees, in the
interests of family harmony and his children's preferences, to
allow them to spend more time in California than was required
under a separation agreement can hardly be said to have 'purposefully availed himself' of the 'benefits and protections' of
California's laws."95 Further, the nonresident defendant's savings in the cost of child rearing did not come from the child's
presence in the forum state but from the child's absence from
the nonresident's state of domicile. 96
While it is not entirely clear that the result of this case would
have been different had the Court adopted the "effects test" in
its broadest context,97 it is dear that the Court did not expressly reject the "effects test" in all situations. Indeed, the
opinion seems to suggest that jurisdiction might exist in a case
where the defendant visits physical injury on persons in the forum state98 or where the defendant seeks commercial benefit
from solicitation of business from a forum state resident.99 In
··/d. at 94-96.
··/d. at 94 n.7.
9</d. at 94-95.
95/d. at 94.
l16/d. Of course an objective review might say that the whole issue here is one of
characterization. Therefore to argue that the "purposeful acceptance of benefits"
conclusion turns on such a characterization borders on sophistry. It is true that an
exercise of jurisdiction may be constitutionally improper but there must be a
fuller explanation to support this conclusion.
97 See supra text accompanying notes 82-83.
.
IJ"Kulko, 436 U.S. at 96 (citing Restatement (Second) of Conflict of Laws § 37 comment a (1971) (illustration of shooting a bullet from one state into another».
".J /d. The comment generally suggests that commercial activity affecting state
residents would satisfy the "effects" test.
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those two instances a purposeful acceptance of the benefits and
protections of the forum state is obvious. loo
Kulko, then, primarily rejects the "effects test" as a new way
to determine the constitutional limits of a defendant's minimum contacts. The final portion of the opinion is intriguing. 101 It deals with California's affirmative interest in hearing
the case. Although the opinion concludes that California does
have important interests in the case,I02 the interests were held
insufficient to make California a fair forum to hear this case. 103
Discussion of the forum state interests gives important guidance as to what does and what does not constitute forum contacts. The decision also suggests that forum contacts are an
integral part of traditional notions of fair play and substantial
justice. In summary, Kulko reaffirms the traditional view of
what constitutes a defendant's contacts and rejects the expansive "effects test". Additionally, forum contacts were recognized as having potential importance. Based on the Shaffer
formula--contacts among the defendant, the forum state and
the litigation I04-the remaining questions were: what else, if
anything, is meant by forum state contacts; what is meant by
litigation contacts; and is this new or emerging test disjunctive
or conjunctive?
Answers to several of these problems seemed to be offered in
the companion cases of World- Wide Volkswagen Corp. v. Woodson 105 and Rush v. Savchuk. 106 From both decisions it appeared
IOOOne who commits a tort, such as shooting a bullet from one state to another,
cannot be said to have purposefully availed himself of the benefits and protections
of the laws of the state into which the bullet was fired in the same way one might
be said to purposefully avail himself through commercial activity. Indeed there is
a clear semantic basis for arguing that shooting a bullet can never comply with the
"benefits" requirement. See Great Western United Corp. v. Kidwell, 577 F.2d
1256, 1287-89 (1978) (Godbold,]., dissenting in part). But there is a broader way
to read the concept of purposeful acceptance of benefits. That broader view recognizes the ri~ht of government-in this case the state-to assert control over
citizens. IndiVIdual citizens cannot choose to be exempt from application of the
law. A criminal cannot choose to reject the benefits and protections of a state's
criminal code and therefore avoid jurisdiction of a state's criminal courts. In the
same fashion, one who commits a tort which establishes contact with a state
through its"effects" may be said to have purposefully availed himself of the benefits and protections of the laws of that state.
101 Kulko, 436 U.S. at 98-101.
1021d. at 100.
IOSld.
""Shaffer, 433 U.S. at 204.
10'444 U.S. 286.
""'444 U.S. 320.
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that the emerging tripartite test would be conjunctively applied. lo7 Rush is based on a one-car accident in Indiana. A passenger in the car, who at the time of the accident was a resident
of Indiana, later moved to Minnesota where he sued the Indiana automobile driver. Multiple decisions by Minnesota courts
upheld this exercise ofjurisdiction based on a curious application of the old Supreme Court case of Harris v. Balk 108 which
held that the presence of a debt in a state was sufficient to permit an exercise of quasi in rem jurisdiction over a nonresident
defendant. Such an approach had been expressly overruled by
Shaffer which specifically held that all exercises of jurisdiction
operate against defendants. 109 Therefore, artificial and categorical distinctions between in rem, quasi in rem and in personamjurisdiction were abolished. l1O Further, Harris is cited in
Shaffer as an example of a case where both the rule and result
would be changed. I II It came as no great surprise, then, when
the exercise of jurisdiction in Rush was held unconstitutional.
One after another of the arguments based on Harris v. Balk
were considered and dismissed. ll2 Mere presence of property
in a state was held not to be a basis for exercise ofjurisdiction
over a nonresident in an unrelated cause of action}l3 A contractual obligation to defend and indemnify was held not to independently create jurisdiction based on the presence of the
insurer l14--even when liability is limited to the policy
amount115-since it is improper to assume that the insured has
no real stake in the litigation. ll6 "The requirements of International Shoe ... must be met as to each defendant over whom a
state court exercises jurisdiction."117 In disallowing jurisdiction in Rush, the Court noted that "(t)he justifications offered
in support of Seider jurisdiction share a common characteristic:
107 Although both cases ultimately held that jurisdiction was improper due to
lack of contact on the part of the defendant, the general discussion in both cases
clearly indicated that each element had to be met for an exercise ofjurisdiction to
be constitutional.
10"198 U.S. 215 (1905).
'OIl ,)f course this ruling was technically dicta since the facts of Shaffer did not
present a Harris situation.
IIoShaffer, 433 U.S. at 212.
II '/d. at 208.
'''Rush, 444 U.S. at 327-32.
'''/d. at 328.
"·/d. at 330-31.
'''/d. at 325-27.
'Ill /d. at 331 n.20.
'l7/d. at 332.
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they shift the focus of the inquiry from the relationship among
the defendant, the forum, the insurer, and the litigation."1l8
Rush, therefore, stands for the proposition that there must be
sufficient contacts with a defendant before jurisdiction can be
maintained. Other aspects, namely forum state contacts and
litigation contacts, are important, but they cannot be substituted for a defendant's contact. Unanswered by Rush are the
questions of: 1) precisely what is meant by a forum state contact and a litigation contact, and 2) are these elements which
also must be independently satisfied before jurisdiction will lie?
Some indications of the Court's position seemed to come
from the majority opinion in World- Wide Volkswagen Corp. v.
Woodson. 1l9 In one sense, the facts in World- Wide Volkswagen are
very simple. An automobile was purchased in New York by citizens of New York from a New York dealer at a time when the
New York citizens did not anticipate leaving New York. One
year later while in route to Arizona, the owners were in an automobile accident in Oklahoma. The purchasers sued the New
York dealer in Oklahoma. 12o
Mr.]ustice White's majority opinion in World-Wide Volkswagen
is notable in two major respects. First, it reaffirms the requirement that the defendant's contacts must be established pursuant to the traditional approach as set forth in previous
opinions. l2l Second, it proclaims that the proper test ofjurisdiction is a conjunctive tripartite test so that failure to satisfy
anyone of the three elements precludes the constitutional exercise ofjurisdiction over the nonresident defendant. 122
Discussion of the proper requirements for establishing
proper defendant contacts was fairly predictable. 123 The previously announced constitutional rule was applied to a record
containing a "total absence of those affiliating circumstances
that are a necessary predicate to any exercise of state-court jurisdiction."124 This is true since, "there was no showing that
any automobile sold ... [by the defendant] has ever entered
Oklahoma with the single exception of the vehicle involved in
""Id.
°444 U.S. 286.
,"old. at 288-89.
"'Id. at 291-94.
'..lId. at 295-99.
'""Ill. at 291-94.
"·Id. at 295.
11
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the present case."125 A different view of the facts was expressed by Mr. Justice Marshall. In Kulko 126 he indicated, in
dicta, that the "effects test" might amount to a purposeful act
by which a defendant accepted the benefits and protections of a
state's law where the defendant had sought commercial benefit
by solicitation of business in the forum state. 127 In the case at
bar, according to Mr. Justice Marshall's argument, the nonresident defendant anticipated or should have anticipated that the
business in question was part of a nationwide network for marketing automobiles. 128 Under this view of the facts, "commercial effects" and purposeful acceptance of benefits coincided so
t.hat an exercise of jurisdiction was proper. 129 The majority
agreed that where the sale of a product of a distributor is not
simply an isolated occurrence, but arises from the distributor~s
direct or indirect service of a national market, jurisdiction will
lie.I!lO However, the majority was unwilling to inject "foreseeability" into the constitutional test as a determinative element. l!l1 This expansive "foreseeability" approach to
jurisdiction, like the expansive "effects" test, does not go far
enough in showing that the nonresident defendant has purposefully availed himself of the benefits and privileges of the
law of the forum state,l!l2 As noted in the majority opinion, the
12'Id. at 289.
126See supra text accompanying notes 85·103.
'27 See supra note 100.
128World_Wide, 444 U.S. at 313-17.
'29Mr. Justice Marshall argued,
It is misleading for the majority to characterize the argument in favor of
jurisdiction as one of "foreseeability" alone. As economic entities petitioners reach out from New York, knowingly causing effects in other
States and receiving economic advantage both from the ability to cause
such effects themselves and from the activities of dealers and distributors
in other States. While they did not receive revenue from making direct
sales in Oklahoma, they intentionally became part of an interstate economic network, which included dealerships in Oklahoma, for pecuniary
gain. In light of this purposeful conduct I do not believe it can be said
that petitioners "had no reason to expect to be haled before a(n
Oklahoma) court.
Id. at 315.
".oId. at 297.
'''Id. at 296. Of course, the majority was willing to consider whether "the defendant's conduct and connection with the forum State are such that he should
reasonably anticipate being haled into court there." Id. at 297 (citing Kulko, 436
U.S. 84; Shaffer, 433 U.s. 186 (Stevens,j., concurring». It is not altogether clear
how reasonable anticipation differs from foreseeability. Cf. Calder v. Jones, 465
U.S. 783 (1984); see also infra notes 188-93 and accompanying text.
•52It is also likely that the majority was concerned about adopting a state common law concept as a measuring element for a constitutional protection. State
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companion case of Rush v. Savchuk makes it clear that the presence of a nonresident defendant's debt (intangible property),
which is not shown to be a logical basis for determining that the
nonresident defendant has purposefully availed himself of the
benefits and protections of the state's law, cannot provide a basis for jurisdiction. ISS Therefore, the mere presence of tangible property, when not shown to be a logical basis for
determining that the nonresident defendant had purposefully
availed himself of the benefits and protections of the forum
state's law, cannot become "an agent for service ofprocess."ls4
A different result would ostensibly occur if there were a proper
showing that a dealer had purposefully entered into a business
which actually had a nationwide market. 135
The difference involves two subtle but important consequences. First, where a proper pleading and proof is required
at the trial court level of the factual basis for finding that the
nonresident defendant purposefully availed himself of the forum state's benefits and protections, there is no need for the
Supreme Court (or other appellate courts) to engage in taking
appellate judicial notice. 136 The advantages of this are selfcommon law concepts are not uniform and are subject to change by the state
courts in each state. Such rules or definitions cannot give constant guidance and
are therefore ill-suited for use in defining a constitutional standard. In this sense,
a new term, such as "reasonable anticipation" is to be preferred over "foreseeability" since the latter is a common law doctrine while the former is not and may
therefore be forged into a single constitutional measuring device. World-Wide,444
U.S. at 297.
.
'SOIn World-Wide, the car, at least at the time of the accident, was not property of
the defendant: it was the plaintiffs' property. 444 U.S. 286.
'MId. at 296.
'SOWith a proper factual showing,jurisdiction would exist under Keeton v. Hustler Magazine, 465 U.S. 770 (1984); see also infra notes 173-87 and accompanying
text.
,s6Under certain circumstances appellate courts can judicially notice facts.
However, the facts which would be involved here would be those surrounding
whether or not a retailer of a certain commodity knew or should have known that
he is so intimately tied to an interstate system as to derive great benefit from the
interstate system. This is probably true of automobile dealers who handle models
which are widely sold in all states. Some automobiles, however, do not have such
distribution systems. Are Fords like Ferraris? Are left-handed widgets like Timex
watches? Appellate courts avoid the problems associated with resolving this type
of issue through judicial notice at the appellate level by requiring that appropriate
facts be pled and proved. The concession on oral argument that there was no
showing that any automobile sold by World-Wide had ever entered Oklahoma
with the single exception of the vehicle in that case on top of a record devoid of
any evidence that World-Wide did business in Oklahoma or shipped or sold any
products to or in that state or had an agent to receive process there or purchased
advertisements in any media calculated to reach Oklahoma was undoubtedly a key
to the majority opinion against jurisdiction.
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evident. Second, if the Supreme Court were to adopt "foreseeability" as a constitutionally significant element in jurisdictional
determinations, it would invite comparison to that concept as
used in tort law. Foreseeability is not uniformly defined in all
states,lS7 and even states which purport to use identical definitions often exhibit radically different applications. Therefore,
if "foreseeability" were made a part of a constitutional test, it is
likely that the results would vary from state to state thus balkanizing what must be a uniform standard. ISS
This clarification of the requirements for a defendant's contacts is the operative portion of the majority opinion in WorldWide Volkswagen, but the most interesting part of the majority
opinion seems to offer a broad doctrinal approach to jurisdiction. Mter asserting the propriety of the traditional minimum
contacts idea, the opinion continued saying,
The concept of minimum contacts, in tum, can be
seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of
litigating in a distant or inconvenient forum. And it
acts to ensure that the States through their courts, do
not reach out beyond the limits imposed on them by
their status as co-equal sovereigns in a federal
system. 139
The opinion declared that while the reasonableness of a defendant's burden in litigating in a distant forum is always a
"primary" concern,140 it must be considered in the light of
other relevant factors. 141 Therefore,
[e]ven if the defendant would suffer minimal or no inconvenience from being forced to litigate before the
tribunals of another State; even if the forum State has
a strong interest in applying its law to the controversy;
even if the forum State is the most convenient location
for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act
See generally W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER & KEETON
288-89, 299-300 (1984).
"·See supra note 132.
"'''World-Wide, 444 U.S. at 291-92.
"oId. at 292.
'·'Id. (citing McGee, 355 U.S. 220; Kulko, 436 U.S. at 92; Shaffer, 433 U.S. at 211
n.37).
157
ON TORTS
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to divest the State of its power to render a valid
judgment.142
This pronouncement placed a new gloss on constitutional
limits ofjurisdiction.143 It appeared clear that there had to be
sufficient contacts between 1) the defendant and 2) the forum
state and 3) the litigation. Further, under this view the forum
state interest had to be affirmatively established and had to outweigh that of a sister state. 144 This was because while the Constitution required facilitation of economic interdependence by
mandating a nation of free trade (established by barring states
from acting as separable economic entities), states retained
many essential attributes of sovereignty including "the sovereign power to try causes in their courts. The sovereignty of
each State, in turn, implied a limitation on the sovereignty of
all of its sister States-a limitation express or implicit in both
the original scheme of the Constitution and the Fourteenth
Amendment."145 The conceptual basis for Pennoyer had been
that of nation-state sovereignty.146 Now a quite different test,
with different results, was being tied to a similar concept.
Put simply, after World-Wide the constitutional test arguably
required the following: In order for a state court to exercise
jurisdiction over a nonresident defendant there had to be sufficient contacts between the defendant, the forum state and the
litigation. Contacts with the forum state, and logically the litigation, had to be considered as a part of our unique interstate
federalism. 147 Even if the defendant were to waive the issue of
jurisdiction, according to this view, a broader concern of
shared sister-state sovereignty could "divest the [forum] State
'··Id. at 294.
'''This pronouncement might also be read as a return to one of the bases of
Pennoyer-the concept of the special claim of a sovereign over the affairs of its
citizens. However after International Shoe and its extension and expansion in Shaffer, this type of approach had, at the very least, been dormant. In this sense the
announcement in World-Wide was new.
'''Under doctrines of public international law the claim of a sovereign to con·
trol the affairs of its citizens is fairly well established. Therefore when a ship is in
the territory of a foreign state, its crew members still answer to the Rag state for
crimes and torts so long as there is no threat to the foreign state. A similar type of
idea seems to be involved here. Under general concepts of "federal sovereignty,"
in facts similar to World-Wide, Oklahoma should defer to New York as a proper
forum. This is the thrust of Mr. Justice White's opinion. 444 U.S. 286.
'''World·Wide, 444 U.S. at 293.
••6See supra notes 7-16 and accompanying text.
47
• 444 U.S. at 293-94.
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of its power to render a valid judgment."148 This is because
the framers of our Constitution were found to have intended
that the various "States retain many essential attributes of sovereignty-including, in particular, the power to try causes in
their courts."149
.
Perhaps this concept, and the effects of its adoption, can be
illustrated by assuming that states are neighborhood backyards.
It is understood that all neighborhood children may play in any
backyard but must abide by the rules set by the adults of the
home in question. Further, the adults of the home in question
may apply the rules and resolve disputes arising between the
children. In our example, a bicycle is traded in backyard A.
Both children anticipate that the bicycle will be kept and used
in backyard A. Later the purchaser is riding the bicycle in backyard B when an accident occurs. A dispute arises as to the state
of repair of the bicycle when sold. In this case it would seem
that the dispute could be resolved in backyard B since the accident occurred there. But if the dispute is with the seller who at
all times has remained in yard A, and if the basis of the dispute
is the state of repair of the bicycle when sold, and if there was
no anticipation that the bicycle would leave yard A, then it
would seem fairer that the dispute be resolved in yard A instead of yard B, no matter which rules were used to resolve the
dispute.
Such an approach may well be required "in the context of
our federal system of government"150 with its attendant "orderly administration of ... laws."151 It also has the advantage
of helping prevent excessive assertions ofjurisdiction. Even if
the child from yard A regularly visits in yard B because the
adults of both households are related, under the World- Wide approach it remains clear that the primary situs of the dispute is
yard A. Therefore, an alternative basis exists for curtailment of
jurisdiction. In the facts of World- Wide Volkswagen it seems clear
that New York is the fairer "backyard" for dispute resolution.
Since the Supreme Court was called upon to explain why certain "effects" could provide a basis for jurisdiction while others
did not,152 and since the Supreme Court was called upon to
"BId. at 294.
'49 Id. at 293.
I50Id. at 293-94 (citing International Shoe, 326 U.S. at 317).
'" Id. at 294.
••2 World- Wide, 444 U.S. at 295-99.
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offer guidance not just on a case by case basis but in opinions
which could be broadly applied,153 this new and independent
constitutional "function"154 seemed to show great promise, but
it had one overriding flaw. As an independent basis for constitutionallimitation on the exercise ofjurisdiction, the "Due Process Clause, acting as an instrument of interstate federalism"155
stood poised to rip "interstate federalism" apart. The facts of
World- Wide Volkswagen serve nicely to illustrate this point. Suppose that the Oklahoma Supreme Court's decision upholding
jurisdiction was appealed to the United States Supreme Court,
but certiorari was denied. Further assume that the case was
subsequently tried on the merits with a million dollar judgment
rendered in favor of the Audi purchaser and against the New
York Audi retailer. Then after that decision on the merits became final, collection was attempted in Oklahoma. There is no
property of the defendant New York Audi dealer in Oklahoma,
and payment of the judgment is not tendered. Now a unique
aspect of our federal system comes into play. If we were dealing with sovereign nation-states, enforcement of the judgment
would depend on comity}56 But by virtue of the full faith and
credit mandate of Article IV, section I of the United States
Constitution, a final Oklahoma judgment must be given effect
in New York. Or must it? According to World- Wide Volkswagen,
"the Due Process Clause, acting as an instrument of interstate
federalism, may sometimes act to divest the State of its power
to render a valid judgment."157 This means that when a final
Oklahoma judgment is presented to a New York court, the New
York court can and must assess the relative "federal" claims of
Oklahoma and New York. If, in the view of the New York
court, the Oklahoma court has exceeded the limits imposed by
the Due Process Clause, then the Oklahoma judgment is void.
Tt takes very little imagination to see that the Supreme Court
would be forced to deal directly with appeals from these types
of cases in order to preserve the very federal system which was
theoretically being served by the approach. This consequence
was simply unacceptable. Therefore the Supreme Court had
,••See supra note 43 and accompanying text.
'54 According to the majority opinion, this independent constitutional function
was "express or implicit in both the original scheme of the Constitution and the
Fourteenth Amendment." World-Wide. 444 U.S. at 293.
'··ld. at 294.
,oeSee generally Hilton v. Guyot. 159 U.S. 113 (1895).
'·'444 U.S. at 294.
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little choice but to disavow this part in the majority opinion of
World- Wide Volkswagen. The disavowal is set forth first in a footnote,158 and then in a majority159 and concurring opinion. l60
The footnote disavowal is found in the case of Insurance Corp.
ofIreland v. Compagnie Des Bauxites de Guinea. 161 Compagnie des
Bauxites filed suit in Pennsylvania alleging a contract action
against various insurance companies. 162 This diversity case required assertion of jurisdiction under the Pennsylvania longarm statute. 16!l The defendants excepted to jurisdiction and
brought a parallel action in an English court. l64 The plaintiffs
sought discovery of the defendants so the factual basis for jurisdiction could be established. In a proceeding in which plaintiffs sought to enjoin the English suit, the trial court upheld
personal jurisdiction over the defendants partly as a sanction
for noncompliance with discovery orders. 165 In his concurring
opinion Mr. Justice Powell argued that the majority opinion
misapprehends the issues actually presented for decision. Federal courts are courts of limited jurisdiction.
Their personal jurisdiction, no less than their subject
matter jurisdiction, is subject both to constitutional
and to statutory definition. When the applicable limi'··Insurance corp. of Ireland v. Compagnie Des Bauxites de Guinea, 456 U.S.
694, 702-03 n.lO (1982).
""Keeton, 466 U.S. 770.
'OOId. at 781 (Brennan,]., concurring).
'5'456 U.S. 694.
•5'The facts of the case are both interesting and relatively complicated. A Delaware corporation owned 49% by the Republic of Guinea and 51 % by Halco,
which operated in Pennsylvania, was operating bauxite mines and processing facilities in the Republic of Guinea. Halco had contracted to perform certain services for the Delaware corporation. In execution of that contract, Halco instructed
an insurance broker to obtain $20 million worth of business interruption insurance to cover the operations in Guinea. The first half of the coverage was obtained through the Insurance Company of North America. Id. at 696. The second
half of the coverage was referred to as "excess" insurance and was provided by a
group of 21 foreign companies: "Of the 21 excess insurers, five are English companies representing English domestic interests but insuring risks throughout the
world, particularly in Pennsylvania. Seven are English companies which represent
non English parents or affiliates. The United States, Japan and Israel are the nationalities of two each of the excess insurer defendants. Switzerland and the Republic of Ireland are the nationalities of one each of the excess insurer
defendants. The remaining excess insurer defendant is a Belgium Company
which represents the United States parent." Id. at 696-97 n.2. When mechanical
problems in the Guinea operation occurred, a business interruption loss in excess
of $10 million arose. This suit arises out of that loss. Id. at 697.
'5'42 Pa. Cons. Stat. Ann. §§ 8301-11 (repealed June 27, 1978).
'''Insurance Corp. of Ireland, 456 U.S. at 699-70 n.6.
•5. Id. at 699.
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tations on federal jurisdiction are identified, it becomes apparent that the Court's theory could require
a sweeping but largely unexplained revision of jurisdictional doctrine. This revision could encompass not
only the personal jurisdiction of federal courts but the
"sovereign" limitations on state jurisdiction as identified in World-Wide Volkswagen Corp. v. Woodson. 166
There is some question whether the majority view, correctly
characterized as deleting the "sovereign" limitations on personal jurisdiction, changes established jurisdictional doctrine.
The only discussion of independent "sovereign" limitations on
personal jurisdiction appears in World- Wide Volkswagen. Before
that case there was no well articulated jurisdictional doctrine
requiring that independent consideration be given to "sovereign" states in a federal system. Although the Supreme Court
never admitted it, such an approach was potentially destructive
of the very cooperative federalism said to spawn the rule. 167 It
is hardly surprising that the majority retreated from the criticized portion of World-Wide Volkswagen. However, it is somewhat surprising how the retreat took place: footnote lOin the
majority opinion of Insurance Corp. of Ireland revises World- Wide
Volkswagen.
It is true that we have stated the requirements of personal jurisdiction, as applied to state courts, reflect an
element of federalism and the character of state sovereignty vis-a-vis other states. . .. Contrary to the suggestion ofJustice Powell ... our holding today does
not alter the requirement that there be "minimum
contacts" between the nonresident defendant and the
forum state. Rather, our holding deals with how the
facts needed to show those "minimum contacts" can
be established when a defendant fails to comply with
court-ordered discovery. The restriction on state sovereign power described in World- Wide Volkswagen Corp.,
however, must be seen as ultimately a function of the
individual liberty interest preserved by the Due Process Clause. That clause is the only source of the personal jurisdiction requirement and the clause itself
makes no mention of federalism concerns. Furthermore, if the federalism concept operated as an independent restriction on the sovereign power of the
Ifl"Id. at 709.10.
167
See supra notes 143·61 and accompanying text.
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court, it would not be possible to waive the personal
jurisdiction requirement. Individual actions cannot
change the powers of sovereignty, although the individual can subject himself to powers from which he
may otherwise be protected. 168
If footnote 10 correctly reflects the current status of due process limitations on judicial jurisdiction, there is little doubt that
the independent "sovereignty" element in the majority opinion
of World- Wide Volkswagen has been erased. In Insurance Corp. of
Ireland the question of judicial jurisdiction was definitely
treated as relating only to the defendant's constitutional protections. 169 Once that view attains, the "logical conundrum,"
which would otherwise exist, disappears. 17o It is possible to
uphold sanctions on a defendant's failure to comply with discovery orders even if there is a "sovereign" limitation on the
exercise ofjudicial jurisdiction aside from concerns directly implicating only the defendant,t71 but the "fairness" of the result
is much easier to see if the question involves only "an individual liberty interest" of the defendant.
It would be a real error to ignore either the holding or the
importance of the holding in Insurance Corp. of Ireland. If defendants could successfully "stonewall" plaintiffs and state
courts and simply hide behind a lack of factual information
(perhaps induced by the stealth of the defendant), then fairness
constraints on the exercise ofjudicialjurisdiction would be perverted. As the case was decided, no such problematical result
Insurance corp. of Ireland, 456 U.S. at 702-03 n.l0.
'GUId. at 701-04.
'7°Mr. Justice White's majority opinion recites the argument and answers it as
follows:
The question presented by this case is whether this Rule (Rule
37(b)(2)(a) Federal Rules of Civil Procedure) is applicable to the facts
that form the basis for personal jurisdiction over a defendant. May a
district court, as a sanction for failure to comply with a discovery order
directed at establishingjurisdictional facts, proceed on the basis that personal jurisdiction over the recalcitrant party has been established? Petitioners urge that such an application of the Rule would violate due
process: If a court does not have jurisdiction over a party, then it may
not create that jurisdiction by judicial fiat. They contend also that until a
court has jurisdiction over a party, that party need not comply with orders of the court; failure to comply, therefore, cannot provide the
ground for a sanction. In our view, petitioners are attempting to create a
logical conundrum out of a fairly straightforward matter.
/d. at 695-96 (footnotes omitted).
I71This would be true in all cases fairly implicating sovereign existence as opposed to cases involving individual civil disputes.
'
68
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is possible. In cases where effective discovery is a prerequisite
to showing a proper basis for the exercise of jurisdiction, the
application of a legal presumption in favor of jurisdiction is
constitutionally correct and can uphold jurisdiction.172 However, if the lesson of footnote 10 attains, then due process constraints on the exercise ofjudicial jurisdiction have reverted to
an examination of "fairness" to the nonresident defendant.
Additional concrete evidence of the "sovereignty" element's
demise in World-Wide Volkswagen is found in Mr. Justice Rehnquist's majority opinion and Mr. Justice Brennan's concurring
opinion in Keeton v. Hustler Magazine}73 Keeton and Calder v.
Jones 174 were companion cases decided in 1984, two years after
Insurance Corp. of Ireland.
The facts of Keeton offered a classic opportunity to review the
validity of the "sovereignty" element in World- Wide Volkswagen
after "footnote 10". One of Hustler magazine's assistant editors
claimed she was libeled in five separate issues of the magazine.
Hustler magazine was an Ohio corporation with its principal
place of business in California. Each month the magazine was
distributed in' all 50 states.
Keeton, the plaintiff, was a resident of New York. Initially
she brought suit in Ohio for libel and invasion of privacy, but
the suit was dismissed as barred by limitations. 175 Thereafter
Keeton brought suit in New Hampshire, the only state where
her suit would not have been time barred,176 Defendant's contacts with New Hampshire consisted of the "sale of some 10 to
15,000 copies of Hustler magazine in that State each month."177
Both the federal district court and the First Circuit Court of
Appeals held that the "Constitution forbade the application of
New Hampshire's long-arm statute in order to acquire personal
jurisdiction."178 If the "sovereignty" element of World-Wide
Volkswagen were applied to the facts in this case, the lower
courts would have properly disallowed jurisdiction in New
Hampshire, since either California or New York would clearly
17'It should be noted that normally the federal rule is that if the defendant properly and in a timely manner objects to jurisdiction over him, the burden of proof
ofjurisdiction is o,n the plaintiff.
170
465 U.S: 770,
174 465 U.S. 783.
17'Keeton, 465 U.S. at 772 n.1.
17°ld. at 773.
1771d. at 772.
17"1d.
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have paramount interstate federalism interests. World-Wide's
admonition was that "the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest
the State of its power to render a valid judgment."179 But as
pointed out by Mr. Justice Rehnquist and Mr. Justice Brennan,
the "sovereignty" element found in World- Wide has been
revoked.180
Once the "sovereignty" element is eliminated, there still remains the question of how to judge minimum contacts based
on the relationship between the defendant, the forum and the
litigation,181 If, as was suggested in Shaffer l82 and Rush,18s
these are all separate concerns which must be satisfied, then an
exercise ofjurisdiction under the facts of Keeton is still suspect
since there is little affirmative forum state connection and the
plaintiff's reason for bringing the litigation in the forum is simply the availability of the most generous statute of limitations in
the United States. On the other hand, if the primary focus is on
fairness to the nonresident defendant, then if the sale of a
product is not simply an isolated occurrence, but arises from
the efforts of the defendant to serve, directly or indirectly, the
market for its product in other states, if is not unreasonable to
subject the defendant to suit in a state where the product has
caused injury. This would be an example of the acceptable
"commercial effects" first mentioned in Kulko,184
Without labeling this as a "commercial" effects case, the majority opinion by Mr. Justice Rehnquist nonetheless accepted
this view and approach.
'
The district court found that "[t]he general course of
conduct in circulating magazines throughout the state
was purposefully directed at New Hampshire, and inevit~bly affected persons in the state." ... Such regular monthly sales of thousands of magazines cannot by
any stretch of the imagination be characterized as random, isolated, or fortuitous. It is, therefore, unquestionable that New Hampshire jurisdiction over a
complaint based on those contacts would ordinarily
satisfy the requirement of the Due Process Clause that
79
•
444 U.S. at 294.
'''''Keeton, 465 U.S. at 776, 782.
'·'/d. at 776·81.
"'433 U.S. 186.
"'444 U.S. 320.
04
'
436 U.S. 84; see also supra notes 95-105 and accompanying text.
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a State's assertion of personal jurisdiction over a nonresident defendant be predicated on "minimum contacts" between the defendant and the State.I 85
Starting with this view, the only question remaining is whether
this result can or should be changed by concerns peculiar to
this case. Mr. Justice Rehnquist then reviewed and rejected the
three concerns advanced by the Court of Appeals 186 as not being sufficiently weighty, whether considered singly or together,
to merit a different result. 187
Calder v. Jones 188 was a companion case to Keeton and adopted
the "tort" effects test. A libel suit was filed in California against
Florida residents who had written and edited an article published in the National Enquirer--a national magazine. 189 Under
Keeton, the National Enquirer would have been subject to suit in
California, the state with the highest level of nationwide circulation. 190 However, the nonresident defendant journalists have
no control over their employer's nationwide marketing activity
and have no direct economic stake in the California sales.
Therefore, the journalists argued that the mere fact that they
could "foresee" an effect in California should not " 'in effect
appoint the [article their] agent for service of process.' "191 In
answer, the opinion by Mr. Justice Rehnquist discussed the result of adopting the "effects" test in this tort case.
[T]heir intentional, and allegedly tortious, actions
were expressly aimed at California. Petitioner South
wrote and petitioner Calder edited an article that they
knew would have a potentially devastating impact
upon respondent. And they knew that the brunt of
that injury would be felt by respondent in the State in
which she lives and works and which the National Enquirer has its largest circulation. Under the circumstances, petitioners must "reasonably anticipate being
'·'Keeton, 465 U.S. at 774.
,.0Id. at 775-80.
'.7Id. at 780. The opinion concludes by noting, "Respondent produces a national publication aimed at a nation-wide audience. There is no unfairness in calling it to answer for the contents ofthat publication wherever a substantial number
of copies are regularly sold and distributed." Id. at 781.
'··Calder, 465 U.S. 783; see also supra notes 97·105 and accompanying text.
I •• See Calder, 138 Cal. App. 3d 128, 187 Cal. Rptr. 825 (1982).
,,··..It (the Enquirer) publishes a national weekly newspaper with a total circulation of over 5 million. About 600,000 of those copies, almost twice the level of
the next highest State, are sold in California." Calder, 465 U.S. at 785.
,., Id. at 789.
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hauled into court there" to answer for the truth of the
statements made in this article. 192
There was a more extensive factual basis for showing that the
nonresidents intentionally created an effect in the forum state
in Calder than in World- Wide Volkswagen, but it is also possible
that constitutionally meaningful "foreseeability" will be more
easily established in tort cases than in commercial cases. 19S
On the same day that oral argument was heard in Keeton and
Calder, oral argument was also heard in the case of Helicopteros
Nacionales de Colombia, S. A. ("Helieol") v. Hall. l94 That suit was
initially filed in a Texas district court by the survivors and representatives of four decedents who died in a helicopter crash in
Peru. Helicol owned and operated the helicopter in question.
All of the decedents were employed by a consortium that was
constructing an oil pipeline in Peru. Helicol contracted to provide transportation for the consortium. Initial discussion leading to the transportation contract took place in Houston,
Texas. The contract, which was executed in Peru, provided
that: I) the residence of all parties was Peru, 2) controversies
arising out of the contract would be submitted to the jurisdiction of Peruvian courts, and 3) the consortium would make payments to Helicol's account with its New York City bank. 195
Before the negotiation and execution of the transportation
contract, and during the period of its execution, Helicol
purchased most of its fleet of helicopters from Bell Helicopter
Company in Fort Worth. 196 These helicopters were used in
Peru and elsewhere. The consortium drew payment to Helicol
on the consortium's bank in Houston.
According to the majority opinion, all parties conceded that
the claims against Helicol did not arise out of and were not
related to Helicol's activities in Texas}97 The majority stated
ld. at 789-90.
IG'Calder, 465 U.S. 783; World-Wide, 444 U.S. 286; see also suflra note 132.
·1>4466 U.S. 408 (1984).
•G·ld. at 411.
192
.1/6ld.
IGoThe specifically affiliating contacts, one trip to Houston by Helicol's chief
executive officer for the purpose of negotiating the transportation contract and
the acceptance by Helicol of consortium checks drawn on a Texas bank, were sufficient contacts to sustain jurisdiction. The generally affiliating circumstances
were as follows:
During the years 1970-1977, [Helicol] purchased helicopters (approximately 80% of its Reet), spare parts, and accessories for more than
$4,000,000 from Bell Helicopter Company in Fort Worth. In that period, Helicol sent prospective pilots to Fort Worth for training and to
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that "when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's
contacts with the forum, the State is exercising 'specific jurisdiction' over the defendant."198 On the other hand, "[w]hen a
State exercises jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum, the State has been said to be exercising 'general
jurisdiction' over the defendant."199 Here jurisdiction must be
sustained, if at all, under "general jurisdiction."
Perkins v. Benguet Consolidated Mining CO.200 is the principal
case dealing with the type of contacts necessary to establish
"general jurisdiction."20I Perkins involved a suit against a Philippine mining corporation. The suit, which arose out of a contract entered into and executed in the Philippine Islands, was
brought in Ohio. Before the suit was filed, but after the events
giving rise to the dispute had occurred, the Japanese occupied
the Philippine Islands. Consequently, the corporation's president and general manager moved company operations to Ohio.
The president "kept company files and held directors' meetings in the office, carried on correspondence relating to the
business, distributed salary checks drawn on two active Ohio
bank accounts, engaged an Ohio bank to act as transfer agent,
and supervised policies dealing with the rehabilitation of the
corporation's properties in the Philippines."202 Given these
facts the exercise of general jurisdiction was held reasonable.
The proper characterization of Perkins is that it never offends
traditional notions of fair play and substantial justice for a defendant to be sued in his own backyard, no matter where the
cause of action arose. But unless the defendant is truly being
sued in his own backyard, jurisdiction cannot be based on unreferry the aircraft to South America. It also sent management and mainte~
nance personnel to visit Bell Helicopter in Fort Worth during the same
period in order to receive "plant familiarization" and for technical consultation. Helicol received into its New York City and Panama City, Fla.,
bank accounts over $5,000,000 in payments from ConsorciolWSH
drawn upon First City National Bank of Houston.
Id. at 411.
'9$Id. at 414 n.8 (citing Von Mehren & Trautman, supra note 3, at 1144-64).
""'Id. at n.9 (citing Von Mehren & Trautman, supra note 3; Brilmayer, supra note
3, at 80-81; Calder, 465 U.S. at 786).
200
342 U.S. 437 (1952).
lIt)l Id. Unfortunately the opinion in Perkins does not distinguish between "special" and "general" jurisdiction. This has caused confusion as to what Perkins
really means. See infra text accompanying note 200.
2OJlHelicopteros, 466 U.S. at 415.
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lated transactions. 20s For this reason, the Court held that a
Texas court's assertion of jurisdiction over Helicol was
unconstitutional.
Less than a year after Helicopteros the Supreme Court decided
Burger King Corp. v. Rudzewicz. 204 Burger King, a franchisor operating in all fifty states, was the plaintiff in a s~it filed in Florida against a franchisee in Michigan. Litigation was "aptly
described by the franchisee as 'a divorce proceeding among
commercial partners. t "205 Initial contact between the franchisee and Burger King took place in Michigan when the franchisee approached Burger King's district manager. Final
agreement between the parties made the franchisee a part of
the Burger King family, a family operated through a two-tiered
administrative structure. The home office in Miami handled
major problems and matters of general legal consequence206
while the district office in Michigan handled day-to-day monitoring. Although the trial court upheld jurisdiction,207 the
Court of Appeals for the Eleventh Circuit reversed on the
grounds that the defendant was "bereft of reasonable notice
and financially unprepared for the prospect of franchise litigation in Florida."208
The crux of the Burger King case has to do with the type of
concern with its ill-fated "sovereign" limitation on personaljurisdiction, which the majority opinion seemed to address in
2O'Compare the two versions of Helicopteros as written by the Texas Supreme
Court. 25 Tex. S. Ct.J. 190 (Feb. 24, 1982); 638 S.W.2d 870 (Tex. 1982). Also,
Keeton provides,
The defendant corporation's contacts with the forum State in Perkins
were more substantial than those of respondent with New Hampshire in
this case. In Perkins, the corporation's mining operations, located in the
Philippine Islands, were completely halted during the Japanese occupation. The president, who was also general manager and principal stockholder of the company, returned to his horne in Ohio where he carried
on "a continuous and systematic supervision of the necessarily limited
wartime activities of the company."
465 U.S. at 779 (citing Perkins, 342 U.S. at 448). The company's files were kept in
Ohio, several directors' meetings were held there, substantial accounts were
maintained in Ohio banks, and all key business decisions were made in the State.
Perkins, 432 U.S. at 448. In those circumstances, Ohio was the corporation's principal, if temporary, place of business so that Ohio jurisdiction was proper even
over a cause of action unrelated to the activities in the State.
.... 105 S. Ct. 2174 (1985).
2O'id. at 2179 (citing 5 Reconst. 4).
-Id.
....Id. at 2180.
..... Burger King Corp. v. MacShara, 724 F.2d 1505, 1513 (1984).
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World-Wide Volkswagen. 209 That concern recognizes that there
might be two jurisdictions which have contacts with the defendant and asks whether constitutional considerations might mandate one jurisdiction to the exclusion of the other. In its
current incarnation, the requirement is that defendants "have
'fair warning that a particular activity may subject [them] to the
jurisdiction of a foreign sovereign' "210 thus insuring that "the
Due Process Clause 'gives a degree of predictability to the legal
system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that
conduct will and will not render them liable to suit.' "211
First, Mr. Justice Brennan's majority opinion reviews the recent pronouncements of the Supreme Court on jurisdiction212
and, in addition, highlights Travelers Health Association v. Virginia 215 to the effect that defendants who "reach out beyond
one state and create continuing relationships with citizens of
another state are subject to regulation and sanctions in the
other state for the consequences of their activities."214 The
bottom line is that a defendant must be found to have purposefully availed himself of the benefits and privileges of the forum
state's laws. Further, in such a case jurisdiction cannot be
avoided "merely because the defendant did not physically enter
the forum state."215
But in considering whether the "purposeful availment" test
has been affirmatively met, other factors, such as the burden on
the defendant, the forum's interest in adjudicating the dispute,
the plaintiff's interest in obtaining effective relief, the interest
of the interstate judicial system in obtaining the most efficient
resolution of the dispute, and the "shared interest of the several states in furthering fundamental substantive social policies,"216 could change the ultimate conclusion. In some cases
jurisdiction will be upheld, in other cases it will be defeated.
The burden, given satisfaction of the general "purposeful availment" test, is on the defendant to show "a compelling case that
....444 U.S. 286; see also supra notes 140-60 and accompanying text.
210Bur,er King, 105 S. Ct. at 2182 (citing Shaffer, 483 U.S. at 218 (Stevens, J..
concumng».
211 Burger King, 105 S. Ct. at 2182 (citing World-Wide, 444 U.S. at 297).
mBurger King, 105 S. Ct. at 2182-88.
210
889 U.S. 648 (1950).
214 Burger King, 105 S. Ct. at 2182 (citing Travelers, 889 U.S. at 647).
21"ld. at 2184.
21°ld. at 2184 (citing World-Wide. 444 U.S. at 292).
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the presence of some other consideration would render jurisdiction unreasonable."217
'
If the defendant is concerned that the fundamental substantive social policies of another state are being denied, then examination of choice-of-Iaw rules pursuant to their
constitutional standards,218 rather than jurisdictional limits, is
appropriate. If the defendant claims forum inconvenience,
then he may seek a change of venue. 219 If in the final analysis,
the defendant is placed at a "severe disadvantage" then jurisdiction still may not lie. 220
One quick caveat on this litany is appropriate. It appears
that choice of law rules would be subject to review on the merits. But the suggestion that the defendant may avoid forum
inconvenience by seeking a change of venue is perplexing. If a
plaintiff files suit in a federal trial court pursuant to its diversity
jurisdiction,221 then a change of venue to another state is accomplished relatively easily.222 All a defendant needs to do is
show that a change in venue would serve the convenience of
parties and witnesses. No dismissal occurs; the suit is merely
transferred from one federal court to another. If plaintiff files
suit in a state trial court instead of a federal trial court, a
change of venue is not possible. Generally a defendant can
urge the common law doctrine offorum non conveniens, but the
basis for declining jurisdiction under the doctrine offorum non
conveniens requires a different, generally more onerous, showing
by the defendant and results in a dismissal, not a transfer. 22s
Could it be that the plaintiff's choice of a federal court instead
of a state court has constitutional consequences for the nonresident defendant? Is a defendant's decision to file for removal
one that can cure what otherwise might have been a constitutionally fatal problem of state court jurisdiction? These issues
must be decided on a case by case basis, and this aspect is one
which promises to add to the general lack of simplicity and clarity in the area ofjurisdiction.
217 Id. at 2185.
·'·See generaUy Allstate Ins.• 449 U.S. 302; Phillips Petroleum Co.• 105 S. Ct, 2965.
10
•
28 U.S.C. § 1404(a) (1976).
••oBurger King. 105 S. Ct. at 2185.
"'See infra notes 491-578 and accompanying text.
••• ..For the convenience of parties and witnesses. in the interest of justice. a
district court may transfer any civil action to any other district or division where it
might have been brought." 28 U.S.C. § 1404(a) (1976).
'''The basic formulation of forum non conveniens is found in Gulf Oil Corp. v.
Gilbert. 330 U.S. 501 (1947). See also Piper v. Reyno. 454 U.S. 235 (1982).
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Mter setting out the general rule for single contract contact
cases,224 the majority applied it to the facts of the Burger King
case. In a single contract case there must not be any automatic
assumptions for or against jurisdiction. It is necessary to take a
.. 'highly realistic' approach that recognizes that a 'contract' is
'ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves
are the real object of the business transaction.' "225 The terms
of the contract may disclose contemplated future consequences
as well as the parties' actual course of dealing. In the franchise
agreement in question there were clearly substantial connections with Florida. Any breach of the agreement by the
francisee in Michigan would produce consequences which
would be felt by Burger King in Florida. Therefore, it was at
least "presumptively" reasonable for the defendant to be sued
in Florida, even if the defendant was never physically present
there. 226
It is possible that this presumption of fairness could be overcome by a showing of unreasonableness. The Court of Appeals
addressed five possible grounds of unreasonableness and the
Supreme Court majority opinion replied to them.
First, the defendant argued that the transaction was in Michigan; therefore, there was no reason to anticipate suit outside of
Michigan. A review of the contract's terms and the parties' actual course of dealing simply failed to support this argument. 227 The Supreme Court opinion quite correctly noted
that a choice-of-Iaw provision could be evidence that the defendant had purposefully invoked the benefits and protections of
the chosen state's laws. This is so even though there are real
differences between a proper jurisdictional analysis and a
proper choice-of-Iaw analysis. 228
Second, it was argued that the forum state had insufficient
interest in the case or that Michigan, desiring to protect a Michigan franchisee, had a preemptive interest. The Court held
that Florida had a sufficient interest in its franchisor's affairs
···In connection with the case in general, and the phrase "single contract contact" specifically, the opinion cites Brewer, supra note 3; Note, supra note 3.
"'Burger King, 105 S. Ct. at 2185.
""Id. at 2185-87.
·"Id. at 2187.
·'"Id. Also on the constitutional constraints on choice oflaw, see Allstate Ins. Co.,
449 U.S. 302; Phillips Petroleum Co., 105 S. Ct. 2965.
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and there was no showing that Michigan was unable to protect
its franchisees in this case. 229
Third, the Court rejected as wholly without support in the
record the argument that the litigation in question severely impaired the defendant's ability to call essential non forum
witnesses. 23o
Fourth, the Court rejected the argument that Burger King
was guilty of misrepresentation, fraud and duress which generally tainted the jurisdictional facts as being contrary to specific
findings by the trial judge.231
Finally, it was argued that unless the Court rejected jurisdiction in this case, it would subject out-of-state consumers to distant forum jurisdiction in suits to collect payments on "modest
personal purchases."232 The Court "share[s these] broader
concerns and therefore reject[s] any talismanic jurisdictional
formulas".233 In this case these concerns were not brought
into play and, therefore, jurisdiction was upheld. One of the
real limitations which necessarily exists when the constitutional
constraints on jurisdiction lack any overriding doctrine and instead must turn on the facts of each case is that of cost-effective
review. In cases involving small amounts, nonresident defendants are often hard-pressed just to defend, much less to appeal
through and beyond a series of parochial state courts. It is
likely that this concern prompted the Supreme Court to cite
cases suggesting that at some time there might be a ruling
which would protect such defendant consumers as a groUp.234
I
Rudzewicz has failed to show how the (Florida) District Court's exercise
ofjurisdiction in this case might have been at all inconsistent with Michigan's interests. To the contrary, the court found that Burger King had
fully complied with Michigan law, App. 159, and there is nothing in
Michigan's franchise act suggesting that Michigan would attempt to assert exclusive jurisdiction to resolve franchise disputes affecting its residents. In any event, minimum-contacts analysis presupposes that two or
more states may be interested in the outcome of a dispute, and the process of resolving potentially conflicting "fundamental substantive social
policies," World-Wide Volkswagen, 444 U.S. at 292, can usually be accommodated through choice-of-law rules rather than through outright preclusion ofjurisdiction in one forum.
.
Burger King, 105 S. Ct. at 2188 n. 26.
"''''ld.
··"ld. at 2189.
···ld.
·"ld.
···Speaking to this issue the majority said, "We also have emphasized that jurisdiction may not be grounded on a contract whose terms have been obtained
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Phillips Petroleum Co. v. Shutts 235 is the most recent Supreme
Court case that deals with constitutional constraints on judicial
jurisdiction. A Kansas resident filed a class action suit in Kansas against Phillips, a Delaware corporation with its principal
place of business in Oklahoma. Each member of the class was a
royalty owner of Phillip's gas leases in eleven states. Phillips
had sought approval from the Federal Power Commission to
raise its prices on gas. Pending final approval Phillips began
charging a higher price but did not immediately increase royalties paid to the royalty owners since the higher price would be
subject to recoupment if final approval were not given by the
Commission. Royalty owners could receive additional royalty
payments only if they provided Phillips with bond for the increase plus interest to insure payment of a refund, if ordered.
Most royalty owners chose to simply allow their potential increased royalty payments to be "impounded" by Phillips. The
rate increase subsequently was approved, and the royalty increases were distributed to royalty owners. However, Phillips
"paid no interest to the royalty owners although it had the use
of the suspended royalty money for a number ofyears."236 After a Kansas and an Oklahoma resident filed suit in Kansas, the
Kansas court certified the class and a trial was held.
Of the two questions considered by the Supreme Court, only
the first is of direct concern. 237 Phillips argued that absent affirmative consent, the Kansas court could not constitutionally
exercise jurisdiction over absent nonresident plaintiffs who
lacked minimum contacts with Kansas. This argument points
out that the case could extinguish a plaintiff's property rights.
Therefore, the same rights which protect defendant's property
rights should apply.238
If the Supreme Court had established a doctrinal approach
to the constitutional constraints on judicial jurisdiction, a case
such as this would undoubtedly present problems. As ~arlier
through "fraud, undue influence. or overweening bargaining power" and whose
application would render litigation "so gravely difficult and inconvenient that (a
party) will for all practical purposes be deprived of his day in court." The Bremen
v. Zapata Off-Shore Co., 407 U.S. 12, 18. Cf Fuentes, 407 U.S. at 94-96. National
Equip. Rental. Ltd. v. Szukhent. 375 U.S. 311 (1964) (Black,J., dissenting) (jurisdictional rules may not be employed against small consumers so as to "cripple
their defense"); Burger King, 105 S. Ct. at 2189-90.
2"105 S. Ct. 2965.
,ss/d. at 2969.
207The second question is a choice oflaw question. Id. at 2977-81.
'SSId. at 2972.
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noted, a failure to define a general doctrine causes certain difficulties. 239 However, the Court's pragmatic approach made
dealing with this particular class action suit relatively easy.
Under Kansas law240 several distinct steps are involved in a
plaintiff's class action suit. First, the plaintiffs who are present
must convince the judge that the named plaintiffs and the absent plaintiffs share claims of a common nature. Second, the
plaintiffs who are present must convince the judge that the absent plaintiffs are adequately represented. Third, the judge
must find jurisdiction over the class. And fourth, the judge
must monitor any other matters that will bear upon proper representation of the absent plaintiff's interest. 241
Once a class was certified, all members were sent a fully descriptive notice, by first class mail, which
informed the class member that he could appear in
person or by counsel, in default of which he would be
represented by the named plaintiffs and their attorneys. The notice further stated that class members
would be included in the class and bound by the judgment unless they "opted out" by executing and returning a "request for exclusion" that was included in
the notice. 242
Finally, this class action suit sought to bind known plaintiffs in
claims which were wholly or predominately for money
judgments. 243
Under these circumstances, the Supreme Court concluded
that different constitutional standards are appropriate since
there are fewer burdens on absent class plaintiffs than upon
absent defendants in non-class suits. Defendants face the undiffused full power of the forum state. Defendants, therefore,
will usually need to hire counsel, travel to the forum, participate in extended and costly discovery, and respond in damSee supra notes 230-32 and accompanying tex.t.
§ 60-233 (1983).
"'See Phillips Petroleum Co., 105 S. Ct. at 2974.
·<lId. at 2975.
••• In Phillips Petroleum Co. the majority opinion provided:
Our holding today is limited to those class actions which seek to bind
known plaintiffs concerning claims wholly or predominantly for money
judgments. We intimate no view concerning other types of class action
lawsuits, such as those seeking equitable relief. Nor, of course, does our
discussion of personal jurisdiction address class actions where the jurisdiction is asserted against a defendant class.
Id. at 2975 n.3.
••9
••9KAN. STAT. ANN.
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ages, court costs and attorney's fees. 244 On the other hand, an
absent class action plaintiff primarily benefits from an equitable
procedural device which allows a court to proceed to judgment
in cases where the number of plaintiffs or the size of their
claims practically prohibits formal joinder of all parties. Absent
class action, plaintiffs, unlike defendants, can simply sit back
and do nothing because they are assured their interests will be
taken care of properly.245
Applicable due process in a plaintiffs class action suit more
closely resembles procedural due process than substantive due
process. 246 It requires that the absent plaintiff receive proper
notice, have an opportunity to participate, have an "opportunity to remove himself from the class by executing and returning an 'opt out' or 'request for exclusion' form to the
court,"247 and at all times be adequately represented by the
named plaintiffs. 248 While these procedural protections may
produce a "fair" result, the basis for constitutional amenability
is not immediately evident. Surely there is no implied consent
in the ordinary sense. There may be a type of jurisdiction by
"necessity." The majority opinion points out that without use
of absent class action plaintiff suits, resolution of this type of
case would require undue cost to the parties and the judicial
system. 249 Perhaps the adequacy of representation coupled
with the special needs provides a "necessity" basis for
amenability.
B.
United States Supreme Court Cases: Summary
When the Supreme Court abandoned the concept of territorial jurisdiction, it abandoned a rule of clarity and adopted in
its place the concept of fair play, a changing and changeable,
but ultimately pragmatic doctrine of substantive due process.
Initially, when the new due process rule was applied only to in
personam cases, the general shape and nature of the rule, as
...Id. at 2973.
••5Id. at 2973.75.
"·For instance, the seminal procedural due process case of Mullane figures
prominently in the Phillips opinion, and the more recent procedural due process
case of Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) is also cited, Phillips
Petroleum Co., 105 S. Ct. at 2975-76.
...Phillips Petroleum Co., 105 S. Ct. at 2975.
··'ld. (citing Hansberry v. Lee, 311 U.S. 32, 42·43 (1940» .
•••Id. at 2976.
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well as certain limitations, became rather firmly fixed. 250 Shaf
fer 251 marked the beginning of our current era of due process
limitations on the exercise ofjurisdiction. That case made two
important changes: it applied the due process standard to
quasi in rem and in rem as well as in personam jurisdiction, and
it redefined and broadened the due process rule itself. 252
The first change was entirely logical and had the welcome
result of prohibiting certain abuses which had grown up over
the years. Shaffer was a derivative stockholders suit against directors and officers of the defendant corporation. Suit was not
brought in the state of the corporation's principal place of business nor was it brought in the state where the events occurred
that gave rise to the cause of action. Rather, suit was brought n
the state of incorporation because "stock" in the company was
"present" in the forum state. Of course, the Supreme Court
correctly held that jurisdiction cannot be fairly asserted against
rights of ownership when it could not be fairly asserted against
the owner. Likewise, the egregious assertion of jurisdiction
born of Harris v. Balk 253 and refined in New York into a special
type of predictory license for citizens of the forum state was
ended. 254 Only the "parents" of Seider v. Roth 255 and the "miraculous" Minicello v. Rosenberg 256 could mourn their passing.
The second change made by Shaffer was to broaden and redefine the very nature of due process constraints on the exercise
of jurisdiction by focusing on the forum state and litigation
contacts in addition to the defendant's contacts. After some
tentative development in Kulko,257 this new definition appeared
well on its way toward becoming a doctrine-not just an expanded rule-in the majority opinion of World- Wide Volkswagen. 258 However, this experiment failed for reasons that
were never discussed. 259 Starting with footnote lOin Insurance
'''''The cases during this era were McGee and Hanson in addition to International
Shoe. McGee, 355 U.S. 220; Hanson, 357 U.S. 235; International Shoe, 326 U.S. 310;
see also supra notes 24-63 and accompanying text.
"'433 U.S. 186.
•••See supra notes 64-79 and accompanying text.
"'198 U.S. 215 (1905).
"'The approach established in New York through creative interpretation of
statute was in turn adopted in other states. See MINN. STAT. § 571.41(1) (1978).
'''17 N.Y.2d 111,269 N.Y.S.2d 99, 216 N.E.2d 312 (1966) .
....410 F.2d 106, aff'd, 410 F.2d 117 (1968) (en bane), cert. denied, 396 U.S. 844
(1969).
..,Kulko, 436 U.S. 84; See also supra notes 80-104 and accompanying text.
"·World-Wide, 444 U.S. 286; see also supra notes 105-57 and accompanying text.
""See supra notes 154-60 and accompanying text.
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corp. of Ireland,260 the Supreme Court has divided due process
constraints on jurisdiction into several rather distinct rules:
1) the rule for domestic relations, 2) the "backyard" rule, 3) the
consent rule, 4) the"stream of commerce" or "commercial" effects rule, 5) the "tort" effects rule, 6) the single contract contact rule, 7) the plaintiffs class action rule and, maybe, 8) the
real or functional fraud rule.
1. The Rule for Domestic Relations
Even in Pennoyer v. Neff261 Mr. Justice Fields set aside jurisdiction in domestic relations as a separate category. Mr. Justice Marshall revalidated this specific category in Shaffer v.
Heitner. 262 It is clear that special jurisdictional rules apply in divorce cases 26!l and that suits involving changes in child support
are not domestic cases,264 but less clear what rules apply in custody cases. 265 Jurisdiction in cases involving divorce may be
based on the domicile of one of the spouses, but jurisdiction in
cases involving child support, alimony and division of property
must be based on personal jurisdiction over the defendant.
2. The "Backyard" Rule
Under Perkins v. Benguet 266 it never offends traditional notions of fair play and substantial justice to sue a defendant in
his own backyard, no matter where the cause of action arose.
But this rule applies only to the defendant's backyard. 267
456 U.S. 694.
'6'95 U.S. 714.
• 62 Mter citing Pennoyer with approval, Mr. Justice Marshall stated that Mr. Justice Field "carefully noted that cases involving the personal status of the plaintiff,
such as divorce actions, could be adjudicated in the plaintiff's home State even
though the defendant could not be served within that State." Shaffer, 433 U.S. at
201 (1977). The due process clause still applies to such cases, but "fairness" is
defined differently.
26'See Williams v. North Carolina, 317 U.S. 287 (1974).
-See Kulko, 436 U.S. 84.
.
26'Bodenheimer Be Neeley-Kvarme,Jurisdiction Over Child Custody and Adoption Af
ter Shaffer and Kulko, 12 U.S.D. L. REV. 229 (1979); Weintraub, Texas Long-Arm
Jurisdiction in Family Law Cases, 32 SW. L.J. 965 (1978); Note, Developments in the
Law-the Constitution and the Family, 93 HARv. L. REV. 1156 (1980).
280
342 U.S. 437 (1952).
26'
The defendant corporation's contacts with the forum State in Perkins
were more substantial than those of respondent with New Hampshire in
this case. In Perkins, the corporation's mining corporations, located in
the Philippine Islands, were completely halted during theJapanese occupation. The president, who was also general manager and principal
stockholder of the company, returned to his home in Ohio where he car•
80
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3. The "Consent Rule"
Footnote 14 in Burger King reads as follows:
We have noted that, because the personal jurisdiction requirement is a waivable right, there are a "variety of legal arrangements" by which a litigant may
give "express or implied consent to the personal jurisdiction of the Court." ... For example, particularly in
the commercial context, parties frequently stipulate in
advance to submit their controversies for resolution
within a particularjurisdiction. . . . Where such forum
selection provisions have been obtained through
"Freely negotiated" agreements and are not "unreasonable and unjust," . . . their enforcement does not
offend due process. 268
4. The "Stream of Commerce" or "Commercial" Effects
Rule
A forum state acts within the constraints of due process when
it asserts personal jurisdiction over a defendant who delivers
his product into the stream of commerce with the expectation
that the product will be purchased by consumers in the forum
state and that product subsequently injures a forum consumer.
Keeton v. Hustler 269 is a case applying this rule.
5. The "Tort" Effects Test
A forum state acts with the constraints of due process when it
asserts personal jurisdiction over a defendant who intentionally
ried on "a continuous and systematic supervision of the necessarily limited wartime activities of the company." 342 U.S. at 448. The company's
files were kept in Ohio, several directions' meetings were held there, substantial accounts were maintained in Ohio banks, and all key business
decisions were made in the state. Ibid. In those circumstances, Ohio was
the corporation's principal, if temporary, place of business so that Ohio
jurisdiction was proper even over a cause of action unrelated to the activities of the state.
Keeton, 465 U.S. at 779 n.ll.
208
105 S. Ct. at 2182.
21'''465 U.S. 770. The stream of commerce rule clearly applies to manufacturers
of finished products. What about manufacturers of component parts? In Asahi
Metal Indus. Co., Ltd. v. Superior Court, 216 Cal. Rptr. 385, 702 P.2d 543 (Cal.
1985), the California Supreme Court upheld jurisdiction over a manufacturer of
component parts who made no direct sales in California but had knowledge that a
substantial number of its parts would be incorporated into finished products sold
in California. The Supreme Court granted review in March of 1986. 54 USLW
3582 (1986).
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inflicts injury on a resident of the forum state. Calder v. Jones
exemplifies this rule. 270
6. The Single Contract Contact Rule
A forum state acts within the constraints of due process when
it asserts personal jurisdiction of a defendant who has a single
contract contact with the forum state if the contract, viewed
from a highly realistic approach which recognizes that contracts
are but an intermediate step tying up prior negotiations with
future consequences, shows the defendant purposefully availed
himself of the protections of the forum state and if the defendant does not thereafter show that this exercise ofjurisdiction is
unreasonable. Burger King v. Rudzewicz 271 is the current example of a Supreme Court application of this rule; McGee v. International Life Insurance CO.272 is arguably an early example.
7. The Plaintiffs Class Action Rule
A forum state acts within the constraints of due process when
it asserts jurisdiction over a member of a plaintiff's class with
which it has no contacts if the plaintiff receives proper notice
and has an opportunity to remove himself from the suit by
"opting out", and is at all times adequately represented by the
named plaintiffs. Phillips Petroleum Co. v. Shutts 273 is the only example of a Supreme Court application of this rule.
8. The Real or Functional Fraud Rule
Ifa defendant has contacts with the forum state which at least
arguably satisfy one of the other listed rules but the contacts
are the result of fraud practiced by the plaintiff or are such that
the defendant is for all practical purposes deprived of his day in
court then jurisdiction will not lie. (In a word, this "possible"
rule is one sounding in abuse of forum by the plaintiff to the
disadvantage of the defendant.) Part III of the Burger King
opinion outlines the elements of this "possible" rule. 274
There are facts which fall outside of the coverage of these
eight "rules." Ifa defendant has only a few or isolated contacts
with a state, those contacts are considered few or isolated no
<7°465 U.S. 783.
... 105 S. Ct. 2174.
"'"355 U.S. 220.
'7'105 s. Ct. 2965.
•74 105 s. Ct. 2174.
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matter what their monetary value unless they satisfy rules 2, 4,
5, or 6, and there are no specifically affiliating circumstances or
no proof of specifically affiliating circumstances, then jurisdiction will not lie. A specifically affiliating circumstance means
one relating to a contact which amounts to a purposeful availment of the benefits and protections of the forum state's law.
Examples of such facts can be found in Hanson,275 Shaffer,276
Kulko,277 World-Wide Volkswagen,278 Rush,279 and Helicol. 28o
C.
Texas Supreme Court Cases
During the period in which the United States Supreme Court
was moving from concepts of territorial jurisdiction to special
rules for in personam jurisdiction and then to today's multiple
rule approach, the Texas Supreme Court was also handing
down cases. 281 Four recent cases-U-Anchor Advertising, Inc., v.
Burt,282 Hall v. Helicopteros Nacionale de Columbia, S.A. ,28S Siskind
v. Villa Foundation for Education 284 and Kawasaki Steel Corp. v.
Middleton 285-provide the backbone of current Texas state
court authority. It is important to review these cases not from
the standpoint of their validity when written but from the
27$357 U.S. 235.
76
433 U.S. 186.
277
436 U.S. 84.
78
•
444 U.S. 286.
79
•
444 U.S. 320.
110
•
466 U.S. 408.
••,One of the earlier important cases was O'Brien & Lampar Co. In this case
the court adopted a three step approach to questions ofjurisdiction over nonresidents. The three steps were:
(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state;
(2) the cause of action must arise from, or be connected with, such act or
transaction; and (3) the assumption of jurisdiction by the forum state
must not offend traditional notions of fair play and substantial justice,
consideration being given to the quality, nature, and extent ofthe activity
in the forum state, the relative convenience of the parties, the benefits
and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.
399 S.W.2d 340 (1966) (citing with approval Tree Constr. Co. v. Dulien Steel
Prod., Inc., 62 Wash. 2d 106,381 P.2d 245, 251 (1963». In Hall v. Helicopteros
Nacionales De Columbia, the second requirement was relaxed. 466 U.S. at 872;
also see infra notes 335-40 and accompanying text.
"'553 S.W.2d 760 (Tex. 1977), ccrt. denied, 434 U.S. 1063 (1978).
"'25 Tex. Sup. Ct. J., 190 (Feb. 24, 1982), withdrawn, 638 S.W.2d 870 (Tex.
1982), rev'd, 466 U.S. 408. The Texas Supreme Court then withdrew its previous
opinion in light of this reversal. 677 S.W.2d 19 (Tex. 1984) (per curiam).
'''642 S.W.2d 434 (Tex. 1982).
"'699 S.W.2d 199 (Tex. 1985).
•
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standpoint of whether or not their rationale and result comport
with current teachings by the United States Supreme Court.
In U-Anchor v. Burt 286 a Texas corporation sent a salesman
into Oklahoma to solicit customers for highway signs or billboards. In Clinton, Oklahoma the salesman found N.H. Burt
who was doing business as Granot Lodge. They agreed that
five advertising displays would be placed at various Oklahoma
highway locations. Burt was supposed to make payments of
$80 per month for 36 months at U-Anchor's Amarillo, Texas
office. After U-Anchor constructed the signs in Texas and erected them in Oklahoma, Burt mailed six or seven payments to
Amarillo. "the contract was solicited, negotiated, and consummated in Oklahoma, and Burt did nothing to indicate or to support an inference of any purpose to exercise the privilege of
doing business in Texas."287
Applying the single contract contact rule does not change
the result of U-Anchor. This highway billboard contract,
viewed from a highly realistic approach which recognizes that
contracts are but an intermedia~e step tying up prior negotiations with future consequences, fails to show that the
Oklahoma defendant purposefully availed himself of the protections and benefits of Texas laws. Since the signs were all in
Oklahoma and the business they advertised was in Oklahoma,
potential profit to the lodge owner was exclusively local. Indeed the Texas plaintiff went to Oklahoma intending to tap an
Oklahoma market, the signs were made in Amarillo, and the
Oklahoma defendant mailed checks to Texas. But absent a
contractual choice-of-Iaw provision,288 enforcement of the contract in question undoubtedly would be governed by Oklahoma
law. Under these circumstances, the Oklahoma defendant
should not have expected to be haled into a Texas court.
Hall v. Helicopteros has already been discussed. 289
Siskind v. Villa 290 involved a suit by a Texas father, individually and as next friend of his minor son, seeking repayment of
tuition paid an Arizona corporation operating a school in Ari•
86
533 S.W.2d 760.
'.7/d. at 763.
···See supra notes 224-25 and accompanying text. For an example of a singlecontract case where jurisdiction was properly upheld, see Texas Commerce Bank
Nat'l Assoc. v. Interpol '80 Ltd. Partnership, T2-86-0l-445 (Tex. App.-Corpus
Christi, 1986 no writ) (not yet reported) .
89
• 466 U.S. 408; see supra notes 194-203 and accompanying text.
200
642 S.W.2d 434.
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zona. The Arizona school catered to students who experienced
motivational problems in ordinary school environments. Most
of the school's residents were from states other than Arizona.
Out-of-state students were recruited by advertising in national
publications.29I Two of these national publications brought
the school to the attention of the Texas father. He telephoned
the school and asked about enrollment. An application was
mailed from Arizona to Texas in response to the call, and
thereafter the father completed and signed an enrollment contract which was then accepted in Arizona. The son was enrolled for the remainder of the year. Before the beginning of
the next year, the Arizona school mailed the father a form letter
inviting re-enrollment and enclosing a new enrollment contract. The father made two modifications before signing and
returning the contract to Arizona. One modification dealt with
tuition refunds and the other "deleted a provision stating that
Arizona would be the exclusive forum for any dispute arising
under the contract."292 The son was expelled during the second year, and the father filed suit in Houston, Texas because
the school refused to refund any tuition.
Application of the stream-of-commerce or commercial-effects test does not change the result of Siskind. Normally one
would think of the sale of a tangible item or product as triggering the "stream of commerce" or "commercial" effects rule.
This was certainly the case in Keeton. 293 There is no logical reason to limit this rule to tangible property. Indeed, the
Supreme Court itself has decried the practice of affording undue or illogical effect to distinctions between tangible and intangible property since the focus is the defendant's ownership
interest in the property in question. 294 Therefore, the question
is whether this case represents an assertion ofjurisdiction over
a defendant who advertised in the national stream of commerce
with the expectation that the service would be purchased by
consumers in the forum state, and a cause of action arose from
a purchase of that service. In this case the defendant advertised in the following national publications: Ambassador's Yearbook, The Christian Science Monitor, Educational Register, Guide to
"'" The school also advertises in various telephone directories. See Siskind. 642
S.W.2d at 435.
11011 Id. at 435.
Il9sThe product was a magazine. 465 U.S. 770.
-Compare Riley v. N.Y. Trust Co.• 315 U.S. 343 (1942) with Clarke v. Clarke.
178 U.S. 186 (1900).
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Independent Schools, The Herald Tribune, National Geographic Magazine, Southern Living, Sunset Magazine, and Town and Country.295
Furthermore, the associate director of the Arizona school testified that the school "engages in an effort to advertise all
around the world."296 Under the specific facts of the case,jurisdiction was constitutionally exercised by a Texas court. 297
Kawasaki Steel Corp. v. Middleton 298 started as a suit by a supply
company against a Texas gas well driller. After completion of a
gas well the driller set 250 lengths of steel casing. The casing
separated, and the well had to be plugged back at a shallower,
less productive zone. In addition to counterclaiming against
the seller of the casing, the driller sued the manufacturer of the
casing and the trading company which placed the seller's order.
The manufacturer, a japanese corporation, entered a special
appearance to contest jurisdiction. The trial court found that
the defendant never maintained an inventory in Texas, never
,owned real estate or other assets in Texas, was not registered
in Texas, did not advertise its products in Texas, and never
"solicited or accepted orders for its products in or from Texas
nor sold any of its products directly to a customer in Texas."299
Based on these findings, the trial court upheld the special appearance of the japanese manufacturer and denied jurisdiction.
The court of appeals reversed, and the Texas Supreme Court,
in a per curiam opinion,30o refused the application for writ of
error finding that no reversible error existed.
In its per curiam opinion the Texas Supreme Court properly
applied the "stream of commerce doctrine"301 and correctly
upheld jurisdiction. Texas could constitutionally assert jurisdiction over the japanese corporation, since it had delivered its
steel casing into the stream of commerce with the expectation
that the steel casing would be purchased by Texas consumers
""Siskind, 642 S.W.2d at 435.
,oo/d. The Texas plaintiff also learned of the school through Childrens' Resource Information Service.
'.7/d.
298For a full recitation of the facts, see Middleton v. Kawasaki Steel Corp., 687
S.W.2d 42 (Tex. App.-Houston [14th Dist.]), writ ref'd n.r.e. per curiam, 699
S.W.2d 199 (Tex. 1985). The decision of the Court ofAppeals also deals with the
burden of proof on appeal and the proper standard of appellate review. 687
S.W.2d at 44-47.
299
687 S.W.2d at 45.
"""Kawasaki, 699 S.W.2d 199.
'Ol/d. at 201 {citing DeJames v. Magnificence Carriers, Inc., 654 F.2d 280 (3rd
Cir. 1981), cert. denied, 454 U.S. 1085 (1981».
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then the casing subsequently injured the Texas consumer. Between $40,000,000 and $48,000,000 worth of steel manufactured by the Japanese company reached Texas annually. An
office dedicated to sales promotion, marketing research and after-sales service for customers in North America and Mexico
was located in Houston. Clearly, steel products were launched
into the· stream of commerce, and some of those products
caused injury to a Texas consumer in Texas. Though there
seems to be little question about propriety ofjurisdiction, the
Japanese defendant argued that since it did not sell directly to
Texas nor retain the power to direct or restrict trading companies in selling defendant's steel in Texas, no jurisdiction existed. However, by definition, "introduction of a good into the
stream of commerce" includes an indirect sale; sellers may
serve a market either directly or indirectly.302 Sellers are
charged with marketing results which may be reasonably expected. Consequently" '[r]easonable expectations,' not 'right
of control' is the controlling issue under the stream of commerce doctrine."303
D. Fifth Circuit Cases
There are many Fifth Circuit Court of Appeals cases involving jurisdictional issues, but review will be limited to several of
the more frequently cited cases- Eyerly Aircraft v. Killian,304
jetco Electronics v. Gardiner,305 Product Promotions v. Cousteau,306
and Prejean v. Sonatrach,307-as well as several very recent cases
of special interest- Patterson v. Dietze, Inc. ,308 Stuart v.
Spademan,309 and jim Fox Enterprises Inc. v. Air France. 310
In Eyerly Aircraft v. Killian,311 Jan Killian fell from an amusement ride in Dallas and was seriously injured. Suit was brought
in Texas against the manufacturer of the amusement ride. The
Fifth Circuit properly upheld jurisdiction, and under the "commercial" effects or "stream of commerce" rule the result would
"""World-Wide, 444 U.S. at 298.
'·'Kawasaki, 699 S.W.2d 201'.
'''414 F.2d 591 (5th Cir. 1969).
'·'473 F.2d 1228 (5th Cir. 1973).
....495 F.2d 483 (5th Cir. 1974).
"'652 F.2d 1260 (5th Cir. 1981).
.... 764 F.2d 1145 (5th Cir. 1985).
"'772 F.2d 1185 (5th Cir. 1985).
01·664 F.2d 63 (5th Cir. 1981), withdrawn in part on other grounds, 705 F.2d 738
(5th Cir. 1983).
'''414 F.2d 591.
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be the same. In answer to interrogatories, the Oregon manufacturer said that its business was the design, manufacture and
sale of amusement riding devices which carnival operators regularly transit over large areas. Parts sales were to purchasers in
various locations, and purchasers sent payments in full and
time sale payments from various locations. And indeed, this
manufacturer sold "amusement riding devices to the outdoor
amusement industry of the world."sI2 These facts establishjurisdiction under the "stream of commerce" test even though
the particular ride in question was manufactured twenty years
before the injury occurred and had been used in various locations outside of Texas before coming to Dallas.
InJetco Electronic Industries, Inc. v. Gardiner,s IS Jetco manufactured treasure hunting devices in Texas. A competitor paid an
Arizona testing laboratory to conduct a test to compare the
performance of its own treasure hunting device with Jetco's
treasure hunting device. The Fifth Circuit upheld jurisdiction,
and under the "tort" effects test the result would be the same.
A suit in libel or common law tort of disparagement of property
can clearly be a basis for jurisdiction since a forum state may
assert personal jurisdiction over a defendant who intentionally
inflicts injury on a resident of the forum state. Sl4 But was the
injury intentionally inflicted? The Arizona testing laboratory
argued that it could not reasonably have foreseen that Jetco
would suffer injury as a result of a negligently conducted test.
The results of the test, after all, were publicized by the company which requested and paid for the test, not the testing
laboratory.
But to accept this claim is to ignore commercial realities. Touting a product by displaying the imprimatur
of an "independent testing laboratory" is a widespread and well known advertising technique. Surely
[the Arizona testing laboratory] did not believe [it was
hired by a company] . . . acting out of idle curiosity
when [it] offered to pay [the Arizona testing laboratory] $85 to "authenticate" test results that [the company] had already obtained. On the contrary, [the
Arizona testing laboratory] knew, or at least should
have known, that the test results it supplied would find
mid. at 592 n.4.
"'"473 F.2d 1228.
'''See supra text "4) The 'Stream of Commerce' or 'Commercial' Effects Rule";
Calder, 465 U.S. 783; also see supra notes 183-90.
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their way into [the company's] advertising
literature. S15
Products Promotions, Inc. v. Cousteau Sl6 involved a breach of
contract suit filed by a Texas company engaged in the business
of product sales and television promotion against Jacques V.
Cousteau, "a citizen of France, a resident of Monaco, and a
world famous marine explorer and scientist."sI7 Cousteau did
not maintain a regular place of business in Texas. Furthermore, the contract which gave rise to the cause of action was
initiated by the Texas company in contacts outside of the state
and the primary object of the contract-testing of certain "fish
call" equipment-was conducted outside of Texas. SIS Nonetheless, the court upheld an exercise ofjurisdiction. Under the
single-contract contact rule the result would be the same.
Products Promotions, Inc., the Texas company, was attempting
to market a device designed to attract fish through sonic emissions, light, and pellets and wanted to hire Cousteau to test the
device so that the test results and Cousteau's name could be
used in advertising. Contact was initiated with an agent of
Cousteau in California, and thereafter negotiations took place
in Marseilles, France. A contract was completed by mail and
accepted in Dallas. Cousteau conducted tests off the coast of
France and Monaco and mailed the results and film to Dallas.
A dispute arising out of the contract caused the Texas company
to file suit in Texas. Under the single-contract contact rule,
Texas could assert jurisdiction over Cousteau if the contract,
viewed as an intermediate step tying up prior negotiations with
future consequences, shows that Cousteau purposefully availed
himself of the protections of Texas and if Cousteau did not
thereafter show that this exercise of jurisdiction would have
been unreasonable. Cousteau knew that the results of the tests
were designed to be of utility to a Texas corporation doing
promotions and advertising throughout the United States. If
mJetco, 473 F.2d at 1231.
.,6495 F.2d 483.
mId. at 483. Also named as defendants in the suit were the "Cousteau Group
Companies, consisting of Centre d'Etude Marines Advances (CEMA) , Les
Campagnes Oceanographiquies Francaises (COF), Living Sea Corporation (LSC),
Les Requins Associes (LRA) and Thalassa Corporation (THA)." Id.; See also Id.
at 483 n.2. The court ultimately determined that Cousteau and all members of
the Cousteau Group of Companies, except CEMA, were not within the reach of
the Texas Long-Arm Statute. CEMA was the primary subject ofthe appeal but for
convenience we will refer to CEMA as Cousteau in the body of the article.
"SId. at 484.
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the Texas corporation had been unable to complete a successful promotion it would have lost money. Quite aside from the
promotion of this particular product, the business reputation of
the Texas company would have been affected if the contract
had not been successfully executed. Therefore, even though
all tests were conducted outside of Texas, even though the
Texas company went to Cousteau outside of Texas, Cousteau
never came to Texas, and the relevant contacts amounted only
to mailing test results and film to Dallas, Cousteau purposefully
availed himself of the protections of Texas law and was amenable to being sued in Texas. This is so because Texas law was
implicated and because the clear impact of the execution of the
tests had to do with the use of test results by a Texas company,
not by the act of conducting the tests. Moreover, the court was
"unable to conclude that any hardship or inconvenience to
[Cousteau] from having to defend the suit in Texas rises to the
level of a denial of due process. Finally, [Cousteau] has
pointed to no particular inequity that might result if a court in
Texas exercises jurisdiction over [Cousteau's] person in this
suit, and we can find none."319
The case of Prejean v. Sonatrach 320 presents a fact situation
which is particularly interesting. The plaintiffs were widows of
two employees of a Dallas engineering firm which contracted to
provide technical assistance to an Algerian national oil company. In execution of the contract the two decedents went to
Algeria where they flew on an aircraft manufactured by Beech,
owned by Air Algeria and chartered by the Algerian national oil
company. The flight crashed because of unknown causes and
tragically killed the two American engineers. 321 The plaintiffs
alleged that the Algerian national oil company, the Algerian national airline company and the United States manufacturer of
the airplane were negligent and that the manufacturer, Beech,
was also strictly liable. The Fifth Circuit held that jurisdiction
existed as to the Algerian national oil company, but not as to
the Algerian national airline or Beech. Under applicable current constitutional rules, no jurisdiction would have existed as
to either of the Algerian national companies or as to Beech.
Initially, it is important to note that the opinion of the Fifth
Sl9Id. at 498.
20
•
652 F.2d 1260.
••,One engineer was from Dallas, Texas, and the other was from Houma, Louisiana, living in Paris, France.
.
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Circuit turned in large part on the reach of the Texas long-arm
statute,322 which was the primary basis for dismissal of the national airline lof Algeria and the sole basis for dismissal of
Beech. Cases subsequent to PrPjean held that the Texas longarm statute is now to be interpreted as extending to the limits
pemiitted by the United States Constitution. 323 The only possible connections the Algerian national airline had with Texas
were economic consequences to Texas residents324 due to the
death of their husbands. This has never been enough to sustain jurisdiction; there simply exists no specifically affiliating
contact. The same result as that in Hall,325 World-Wide Volkswagen,326 Kulko,327 Shaffer,328 and Hansen 329 was mandated as to
Air Algeria-no jurisdiction lay. Review of the contacts between the Algerian national oil company and Texas is difficult
because of the sketchy nature of the facts. 33o But it seems clear
that the facts, such as they are, require review under the singlecontract contact rule. If there existed a contract,331 it was executed in Algeria and to be performed in Algeria. In such a
case, review of the transactions from a highly realistic approach-which recognizes that contracts are but an intermediate step tying up prior negotiations with future consequenceswould show that the defendant had not purposefully availed itself of the protections of Texas and therefore no jurisdiction
'''Prejean, 652 F.2d at 1264-67.
S2SJim Fox Enters., Inc., 705 F.2d 738 (on motion for rehearing); Placid Invs. Ltd.
v. Girard Trust Bank, 689 F.2d 1218 (5th Cir. 1982) (on motion for rehearing).
Also see infra notes 335-37, 498-500 and accompanying text.
'''Of course, only one of the two decedents was a Texas resident. See supra note
321.
'''466 U.S. 408.
"·444 U.S. 286.
27
•
436 U.S. 84.
..°433 U.S. 186.
··°357 U.S. 235.
..oThe factual review is as follows: "As for Sonatrach, from the record as presently developed, it appears that there were no contacts with Texas prior to service
of process other than the intangible tortious injury to the Texas plaintiffs and the
alleged contract with the decedents' employer. Sonatrach disputes not only the
existence of the contract, but also the chartering of the plane, which would sever
Sonatrach from the tortious injury contact with Texas. Further jurisdictional discovery is required with respect to the existence of the contract, the charter, and
other matters before this court can pass on the constitutionality and statutory va·
lidity ofassertingjurisdiction over Sonatrach the basis of these contacts." Prejean,
652 F.2d at 1270.
••,This fact was disputed by Sonatrach.
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would lie. 332 This type of fact situation is one in which the
transaction related only to one place-Algeria. It is true that a
failure to perform the contract would have had foreseeable
consequences in Texas. Indeed, any contract at any oil field in
the free world may have consequences in Texas. But this is not
enough to establish contacts which show that the defendant
purposefully availed himself of the laws of any and all affected
states. Under these facts, a defendant should not be expected
to be haled into any court other than that of the forum where
the contract was executed and was to be performed.
What sometimes makes these cases hard is the realization
that if no jurisdiction exists in the forum, then suit must be
brought in a foreign country.333 So far, the Supreme Court has
refused to hold or even suggest that this reality requires a different form of analysis. 3M In any event, where the injured
party voluntarily and knowingly accepted the risk of employment abroad, where there is no showing that the courts of a
foreign state are closed to the plaintiff, and where, as here, suit
could be brought in Texas against the Texas company which
employed the decedents, there is no overriding reason to apply
a different form of analysis or reach a different result.
Suit against Beech Aircraft Corporation could not be sustained under application of the "backyard" rule or the "stream
of commerce" rule, because no proper basis exists under either
'rule. Texas was not Beech's principal place ofbusiness,335 and
suit was not brought in the place where the aircraft, having
been launched into the stream of commerce, subsequently injured a forum consumer. It is important to note that while a
"consumer" is any expected user of a product that has been
introduced by a manufacturer or merchant into the stream of
commerce, a consumer's legal dependent is not covered by the
rule. Thus, in a wrongful death case, suit must be brought
where it would have been maintainable by a decedent.
5!V /d. at 1270 n.21 (Sonatrach's argument that a tort cannot arise out of a contact for jurisdictional purposes is rejected by the court).
"'This would also be true under the facts in Helicopteros.
'UMr. Justice Campbell noted in his concurring opinion in Helicopteros: "The
U.S. Supreme Court, in World-Wide, was addressing the jurisdictional problem between states. However, we do not have the same problem as World-Wide. We do
not have a dispute over jurisdiction between co-equal sovereigns in a federal system. We are deciding jurisdiction between countries; as to citizens of the United
States and a resident of Colombia. Therefore, 'due process' in this case must be
universal in its application." 688 S.W.2d at 875.
"'Beech has a principal place of business in Kansas.
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The difficulty of applying the collective teachings of recent
Supreme Court can be observed by considering two recent
Fifth Circuit cases involving single-contract contacts: Patterson
v. Dietz 336 and Stuart v. Spademan. 337 In Patterson the plaintiff
was a Texas citizen who called a New York broker of oil tanker
charters and offered to help obtain ship charters from Pemex,
the Mexican national oil company. An oral agreement followed. The plaintiffs and defendant made calls between Texas
and New York, traveled to Mexico and the Bahamas, and the
defendant made payments to the plaintiff in Texas. When the
defendant stopped payments, the plaintiff sued it in Texas.
The plaintiff argued that jurisdiction could be predicated on
the telephone calls the defendant made to Texas, the payments
made in Texas, and two contracts entered into with two Texas
shipowners. Jurisdiction would lie only if the New York defendant purposefully availed himself of the forum state's protections, and viewed the contract as tying up prior negotiations
with future consequences. In this case the center of activity was
Mexico, with the broker's office in New York as a secondary
center. The plaintiff was a free-lance operator seeking to increase activity in Mexico and New York. As the court correctly
noted, the defendant's contact with Texas "rests on nothing
but the 'mere fortuity that the plaintiff happens to be a resident
of the forum.' "338 Furthermore, the court concluded that New
York law would presumably govern the case. 339 When the hub
of contractual activity is centered in a state other than the forum, and when some law other than that of the forum state
would probably apply, mere payment mailed to the forum and
communications to the forum are insufficient to establish a basis for jurisdiction. In Patterson jurisdiction was therefore properly denied.
Jurisdiction was also denied in Stuart v. Spaceman,340 but this
result is suspect. The plaintiffs were Texans who developed an
improved (modified) ski binding. They sought to sell the "invention" to the manufacturer of the ski binding they had modified so the Texans contacted the defendant in California.
While contact negotiations were under way, the Texans applied
for a patent. Thereafter, the Texans met the California defend""764 F.2d 1145 (5th Cir. 1985).
"'772 F.2d 1185 (5th Cir. 1985).
···Patterson. 764 F.2d at 1147.
··"ld.
""772 F.2d 1185.
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ant in Denver, Colorado. The parties subsequently executed a
contract which assigned the patent to the California buyer and
obligated the Texas sellers to assist in any further patent applications or requests for reissuance. In turn, the California buyer
was to make payments in Texas. Mter about three years,
problems with the payments developed, and the parties
amended the original agreement. This amended agreement
provided that payments were to be made "directly to the plaintiffs' bank accounts in Texas"341 and replaced a California
choice-of-Iaw provision with one which provided that the
agreement was to be "subject to and shall be construed and
enforced according to the laws of the state in which the aggrieved party under the terms of the contract is residing at the
time such breach of contract or grievance occurs."342 Unhappily for the parties, in 1982 the United States Patent and
Trademark Office declined to reissue the patent. Prior to this
refusal, the defendant's attorneys and the Texas plaintiffs had
engaged in a "significant amount of correspondence and numerous telephone calls regarding these matters . . . ."343
The initial unmodified contract probably did not create a basis ofjurisdiction in Texas since California law was chosen and
California was the "hub" of activity in both the terms and execution of the contract. But the modified contract must be evaluated in light of an actual course of dealing involving
participation by the Texans in Texas in the reissuance of the
patent. Furthermore, by its terms the contract allowed for use
of the law of the aggrieved party's state of residence to control
the contract.!l44 Those affirmative showings-the course of
dealings in Texas and the choice of Texas law-would seem
enough to show that the ski manufacturer had purposefully
availed himself of Texas law. 345 Since the defendant in this
case did not thereafter show that this exercise of jurisdiction
was unreasonable, Texas would seem to be a constitutional
forum.
The final Fifth Circuit case to be considered is Jim Fox Enterprises, Inc. v. Air France. 346 In this case a Texas corporation filed
MIld. at 1188.
"Old.
..SId.
.... Although the issue was not entirely free of doubt, the court concluded that
the Texas plaintiffs were aggrieved parties in this case. Id. at 1194-95.
...·The court properly ignored unrelated contacts. Id. at 1196-98.
...·664 F.2d 63.
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suit for breach of warranty against Air France, a foreign corporation. Fox, the Texas corporation, conceded that its claim did
not relate to Air France's business in Texas. 347 The Fifth Circuit nonetheless upheld jurisdiction since, in its view, Air
France had "myriad" contacts with Texas. Under the "backyard" rule of Perkins v. Benguet,348 as explained in Keeton v. Hustler,349 no jurisdiction lay.
There can be no question about the gross financial rewards
that Air France reaped in Texas. Between 1975 and 1980 Air
France received more than 59 million dollars from passenger
ticket sales in Texas. Air France operated a ticket office at
Houston's Intercontinental Airport, regularly flew aircraft capable of holding up to 490 passengers to Paris, had a local telephone listing, leased Texas real estate, employed Texas
residents, maintained Texas workers compensation insurance
and paid Texas employment and personal property taxes. 350
But as the Helicopteros 351 case makes clear, the quantity of financial contacts was not directly relevant, except in a "backyard"
case. Each defendant has only one "backyard"-in this case
the defendant's "backyard" is France. Suit on a cause of action
unrelated to the contacts between the defendant and the forum
must be brought in France. Of course, any cause of action arising out of Air France's dealing in Texas can be brought in
Texas. But under the facts which existed in theJim Fox case,352
jurisdiction should have been denied.
II.
LONG-ARM JURISDICTION UNDER TEXAS
LAw
Requirement of Texas Long-Arm Statutes of Substituted Service
on State Officer is an Anachronism
The United States Supreme Court first approved a state
long-arm statute in its 1927 decision in Hess v. Pawloski. 353 At
issue was the constitutionality of a Massachusetts statute354
which provided that by operating a motor vehicle on the highways of the state, a nonresident motorist "shall be deemed
A.
"'Id. at 64.
"8342 U.S. 437.
...9465 U.S. 770.
'''''Jim Fox Enters., Inc., 664 F.2d at 65.
"'466 U.S. 408.
52
'
664 F.2d 63.
"'274 U.S. 352 (1927).
'''MAss. GEN. LAws ANN. ch. 90 (West 1972), as amended by Stat. 1923, ch. 431,
§ 2.
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equivalent" to an appointment by the nonresident defendant of
the state registrar of motor vehicles as his agent for service of
process in any suit against him arising out of any accident in
which he was involved while operating a vehicle in Massachusetts. The focus of the Court's opinion was on the question of
whether the defendant was constitutionally amenable to the
state court's jurisdiction. The Court upheld jurisdiction on a
theory of "implied" consent. Subsequently, the Court adopted
the "minimum contacts" test for long-arm jurisdiction.555 In
conceding that the implied consent rationale in cases like Hess
was only a fiction, the Court said:
True, some of the decisions holding the corporation
amenable to suit have been supported by resort to the
legal fiction that it has given its consent to service and
suit, consent being implied from its presence in the
state through the acts of its authorized agents. . .. But
more realistically it may be said that these authorized
acts were of such a nature as to justify the fiction. 556
Regarding service of process, in Hess the Court said:
The process of the court of one state cannot run into
another and summon a party there domiciled to respond to proceedings against him. Notice sent
outside the state to a non-resident is unavailing to give
jurisdiction in an action against him personally for
money recovery. . . . There must be actual service
within the state of notice upon him or someone authorized to accept service for him. 557
The statute in Hess required service of process on the registrar,
as defendant's agent, and that notice of such service and a copy
of process be sent by the plaintiff to the defendant by registered mail, return receipt requested. In upholding the validity
of jurisdiction, the Court noted that the statute required that
·"International Shoe v. Washington, 326 U.S. 310 (1945). See also supra notes
3-6, 24-26 and accompanying text.
••oId. at 318. See also Olberding v. Illinois Cent. R.R. Co., 346 U.S. 338, 340-41
(1953). The court said:
It is true that in order to ease the process by which new decisions are
fitted into pre-existing modes of analysis there has been some fictive talk
to the effect that the reason why a non-resident can be subjected to a
state's jurisdiction is that the non-resident has 'impliedly' consented to
be sued there. In point offact, however, jurisdiction in these cases does
not rest on consent at all. . . . The defendant may protest to high heaven
his unwillingness to be sued and it avails him not.
··'274 U.S. at 355.
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the defendant actually receive notice of the service and a copy
of the process. 358
Many state legislatures, including Texas, wasted no time in
enacting long-arm statutes modeled after the Massachusetts
statute in Hess. Within two years of the Hess decision, the Texas
legislature enacted a nonresident motorist long-arm statute
similar to the Massachusetts statute. 359 The statute requires
service of process on the chairman of the State Highway and
Public Transportation Commission as defendant's agent for
service of process. Unlike the statute in Hess, however, the statutory agent, rather than the plaintiff, is required to forward a
copy of process and notice of service on the agent to the defendant. 36o The Texas general long-arm statute361 also contains a similar scheme for service of process on a nonresident
defendant, except that the agent for service of process is the
Secretary of State.
Whatever may have been the requirements for constitutionally accepted methods of notice on nonresidents at the time
Hess was decided, it is clear now that due process does not require service of process in the forum state on a nonresident
defendant or on his resident agent to acquire valid personal
jurisdiction over him. This is so regardless of whether the inquiry is of the defendant's amenability to jurisdiction or the adequacy of notice. The requirement of delivery of process to a
state official, such as the Secretary of State, was recognizied
under the reign of Hess as being part of the now discarded fiction 362 of "implied consent," which related only to the amenability to process element of jurisdiction and not to notice.
Notice to the nonresident defendant was still constitutionally
required; it could not be based on notice to the resident statutory agent. 363 With the Supreme Court's adoption of the minisr,,, Id. at 356.
""TEX. REV. CIV. STAT. ANN. art. 2039a (Vernon 1969), (codified as TEX. CIV.
PRACTICE &: REMEDIES CODE ANN• .§§ 17.061-.069 (Vernon 1985».
560TEX. CIV. PRACTICE &: REMEDIES CODE § 17.063(b).
61
5 Id. §§ 17.041-.045.
56'Hess, 274 U.S. 352; see also supra note 356 and accompanying text.
565See Wuchter v. Pizzutti, 276 U.S. 13 (1928). Over a strong dissent by Justices
Brandeis and Holmes, the Court reversed the default judgment against the defendant despite the fact that it was conceded that, although the statute did not
require it, the defendant was actually personally served with process. The majority swept the relevance of this fact away with the cryptic statement: "Not having
been directed by the statute it [actual notice by service] cannot, therefore, supply
the constitutional validity to the statute or to service under it." Id. at 24.
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mum contacts test for long-arm personal jurisdiction, there is
no justification at all for requiring service of process on a resident state official.364
On at least one occasion, the Texas Supreme Court has recognized the validity of direct, out-of-state service of process on
a nonresident in the exercise of such jurisdiction. In that
case365 the court upheld the validity of an Arizona law that provided for extraterritorial service of process to invoke personal
jurisdiction over a nonresident. The Texas long-arm statutes 366 should be amended to provided for direct service of
process on a nonresident defendant under Rule 106. 367 The
language of Rule 108368 serves as an adequate model. Better
still, the statutes could simply refer to Rule 108 for service requirements. In divorce actions or suits affecting the parent.54 See J. FRIEDENTHAL, M. KANE Be A. MILLER, CIVIL PROCEDURE 171 (1985).
''''Mitchim v. Mitchim, 518 S.W.2d 362 (Tex. 1975). The plaintiff was a resident of Arizona, so on that basis alone, the Arizona state court had jurisdiction to
dissolve the marriage. Williams v. North Carolina, 317 U.S. 287 (1942). But as
the court pointed out, the defendant did not question the granting of the divorce
by the Arizona court. Moreover, the plaintiff sought enforcement of the Arizona
decree only as to alimony and a subsequent judgment for arrearage in alimony
payments. For these judgments to be enforceable, the rendering court must have
acquired valid personal jurisdiction over the defendant. See Estin v. Estin, 334
U.S. 541 (1948). This is also true for claims for child support. Kulko, 436 U.S. 84.
Prior to the decision in Shaffer, personal claims could be litigated if the state court
acquired quasi in rem jurisdiction over the defendant. 433 U.S. 186. E.g., Pennington v. Fourth Nat'l Bank, 243 U.S. 269 (1917) (garnishment for alimony).
Shaffer, however, probabily tacitly overruled such cases like Pennington. See also infra notes 461-67 and accompanying text.
-Numerous Texas statutes and codes contain long-arm provisions that utilize
substituted service on some state officer as the defendant's statutory agent. In
addition to the "general" long-arm statute, TEX. CIY. PRACTICE Be REMEDIES CODE
§§ 17.041-.045, and the nonresident motor vehicle operator long-arm statute,
TEX. CIV. PRACTICE Be REMEDIES CODE §§ 17.061-.069, the Texas Civil Practice Be
Remedies Code contains other long-arm provisions, e.g. §§ 17.091 (delinquent
tax cases), 17.092 (nonresident utility suppliers), 17.093 (foreign railways). The
Texas Business Corporation Act contains several long-arm provisions. TEX. Bus.
CORP. ACT ANN. § 8.10 (foreign corporation licensed to do business in Texas)
(Vernon 1980) and § 8.14 (foreign corporation that surrenders its license
(Vernon Supp. 1986). The Insurance Code is liberally sprinkled with provisions
for substituted service on a statutory agent. TEX. INS. CODE ANN. §§ 1.14-1 (unauthorized insurance business) (Vernon Supp. 1986), 1.14-2 (surplus lines insurers) (Vernon Supp. 1986), 3.65 (foreign life, health and accident insurers)
(Vernon 1981),8.24 (Mexican casualty insurers) (Vernon 1981), 10.24 (fraternal
benefit societies) (Vernon 1981), 14.34 (mutual assessment companies) (Vernon
1981), 18.17 (Uoyd's plan insurers) (Vernon 1981), 19.04 (insurers exchanging
reciprocal or interinsurance contracts) (Vernon 1981), 21.21-1 (suits against foreign insurers for false advertising under the Texas Unfair Trade Practice Act (see
§ 2.21) (Vernon 1981).
367TEX. R. CIY. P. 106.
"""TEX. R. CIY. P. 108.
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PERSONAL JURISDICTION
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child relationship, straightforward service of process under
Rule 108 on nonresident defendants has already been approved,369 provided that the defendant is amenable to jurisdiction under an applicable provision of one of the long-arm
sections of the Family Code. 370
Not only is the statutory requirement of service of process on
a state official constitutionally unnecessary, the Texas long-arm
statutes could all be amended to delete any other specific requirements of amenability and simply provide: "A court of this
state may exercise jurisdiction on any basis not inconsistent
with the constitution of this State or the United States."371
-Butler v. Butler, 577 S.W.2d 501 (Tex. Civ. App. Texarkana-1978, writ
dism'd).
570 Texas Family Code provides:
(a) If the petitioner is a resident or a domiciliary of this state at the
commencement of a suit for divorce, annulment, or to declare a marriage
void, the court may exercise personal jurisdiction over the respondent,
or the respondent's personal representative, although the respondent is
not a resident or a domiciliary of this state if:
(1) this state is the last marital residence of the petitioner and the
respondent and the suit is commenced within two years after the date on
which marital residence ended; or
(2) there is any basis consistent with the constitutions of this state
and the United States for the exercise of the personal jurisdiction.
(b) A court acquiring jurisdiction under this section also acquires jurisdiction over the respondent in a suit affecting the parent-child
relationship.
TEX. FAM. CODE ANN. § 3.26 (Vernon Supp. 1986). Texas Family Code also
provides:
In a suit affecting the parent-child relationship, the court may exercise
status or subject matter jurisdiction over the suit as provided by Subchapter B of this chapter. The court may also exercise personal jurisdiction over a person on whom service of citation is required or over the
person's personal representative, although the person is not a resident
or domiciliary of this state, if:
(1) the child was conceived in this state when at least one biological
parent was a resident of this state and the person on whom service is
required is a parent or an alleged or probable father of the child;
(2) the child resides in this state as a result of the acts or directives or
with the approval of the person on whom service is required;
(3) the person on whom service is required has resided with the child
in this state; or
(4) there is any basis consistent with the constitutions of this state
and the United States for the exercise of the personal jurisdiction.
TEX. FAM. CODE ANN. § 11.051 (Vernon Supp. 1986).
"'California has adopted an identically worded statute. CAL. CIV. PROC. CODE
ANN. § 410.10. See Kulko, 436 U.S. at 89 n.3. See also supra notes 80-104 and accompanying text.
In holding the application of California's long-arm statute unconstitutional in a
suit for child support, the majority in Kulko noted: "And California has not attempted to assert any particularized interest in trying such cases in its courts by,
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Even without such a generalized statute, the Texas Supreme
Court seems already well on its way to placing such a judicial
gloss on the general long-arm statute. In Hall v. Helicopteros Nacionates de Columbia, S.A. (HHelicol"),372 the majority ignored the
express language of the general long-arm statute which directs
that the claim sued or must arise out of the business done by
the defendant in Texas. 373 In so doing, the court reaffirmed its
earlier pronouncement that the Texas general long-arm statute
"reaches as far as the federal constitutional requirements of
due process will permit."374 The court reasoned that "such a
construction is desirable in that it allows the courts to focus on
the constitutional limitations of due process rather than to engage in technical and abstruse attempts to consistently define
'doing business.' "375 Perhaps, in future cases, the court will
ignore other requirements or limitations contained in the general long-arm statute in the name of avoiding "technical and
abstruse attempts to consistently define"376 the language of the
statute. While such an approach may be logically sound and
desirable, it raises important and grave questions of the court's
usurpation of the implied separation of powers between the judiciary and the legislature and violations of the Rules Enabling
Act,377 as well as less heady, but significant, concerns of possible abandonment of previously universally accepted rules of
statutory construction. 378
e.g.• enacting a special jurisdictional statute." 436 U.S. at 98 (emphasis added).
Compare TEX. FAN:. CODE ANN. §§ 3.26. and 11.051.
·"638 S.W.2d 870.
·'·See TEX. CIV. PRACTICE Be REMEDIES CODE § 17.044(b). formerly TEX. REv.
CIV. STAT. ANN. art. 2031b, § 3 (Vernon 1964).
874
638 S.W.2d at 872 (quoting U-Anchor, 553 S.W.2d at 762.)
mId. It has also been held that the intent behind the enactment of the personal
jurisdiction provisions is to assert personal jurisdiction over nonresidents in the
broadest possible manner consistent with due process. Perry v. Ponder, 604
S.W.2d 306 (Tex. Civ. App.-Dallas 1980 no writ) (specific provision in case was
TEX. FAM. CODE ANN. § 11.051). See also Weintraub. supra note 265. at 975.
"·Id.
m See infra notes 393-401 and accompanying text.
·'"For example. article 2031b. § 4 was amended in 1979 to add an act which
constitutes "doing business" under the statute: the act of recruiting Texas residents. directly or through an intermediary located in Texas. for employment inside or outside of Texas. TEX. REV. CIV. STAT. ANN. art. 2031(b), § 4 (codified as
amended at TEX. CIV. PRACTICE Be REMEDIES CODE § 17.042). It can be argued
that if "doing business" under the statute was intended by the legislature to reach
as far as due process permits. it would not have amended the statute to add this
specific act. Otherwise the amendment would have been superfluous, and it cannot be presumed that the legislature intended to enact a superfluous provision.
On the other hand, the Texas Civil Practice and Remedies Code expressly states
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PERSONAL JURISDICTION
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Texas Rule of Civil Procedure 108 as a Long-Arm Statute
Texas Rule Civil Procedure 108 provides:
Where the defendant is absent from the State, or is
a nonresident of the State, the form of notice to such
defendant of the institution of the suit shall be the
same as prescribed for citation to a resident defendant; and such notice may be served by any disinterested person competent to make oath of the fact in the
same manner as provided in Rule 106 hereof. The return of service in such cases shall be endorsed on or
attached to the original notice, and shall be in the
form provided in Rule 107, and be signed and sworn
to by the party making such service before some officer authorized by the laws of this State to take affidavits, under the hand and official seal of such officer. A
defendant served with such notice shall be required to
appear and answer in the same manner and time and
under the same penalties as if he had been personally
served with a citation within this State to the full extent that he may be required to appear and answer
under the Constitution of the United States in an action either in rem or in personam. 879
Prior to the 1975 amendment of Rule 108, which added language to the last sentence of the rule, the courts had construed
Rule 108 to be a "pure notice" provision, i.e., it could not be
used to invoke in personam jurisdiction over a nonresident defendant. 88o Rule 108 was limited to giving notice to a resident
defendant temporarily absent from the state881 or to a nonresi-
B.
that the specific1y enumerated acts therein are "in addition to other acts that may
constitute doing business in this state." TEX. CIV. PRACTICE &: REMEDIES CODE
§ 17.042. In Rosemont Enter., Inc. v. Lummis, the court held that this language
expands the scope of in personam jurisdiction to the limits of the federal constitution. 596 S.W.2d 916, 920 (Tex. Civ. App.-Houston [14th Dist.] 1980 no writ).
Accord Lone Star Motor Import, Inc. v. Citroen Cars Corp., 288 F.2d 69, 72-7S
(5th Cir. 1961); Thode, supra note I, at 307·08.
S7UTEX. R. CIV. P. 108.
SIlOE.g., Aamco Automatic Transmissions, Inc. v. Evans Advertising Agency,
Inc., 450 S.W.2d 769 (Tex. Civ. App.-Houston [14th Dist.] 1970, writ ref'd
n.r.e.).
'HIE.g., Miller v. Cowell, 362 S.W.2d S45 (Tex. Civ. App.-Houston 1963, no
writ).
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dent in an in rem action,382 including divorce and child custody
suits. 383
The 1975 amendment of Rule 108 added wording to the last
sentence, which requires the defendant served with proper notice "to appear and answer in the same manner and time and
under the same penalties as if he had been personally served
with a citation within this State to the full extent that he may be
required to appear and answer under the Constitution ofthe United Sates
in an action either in rem or in personam ".384 The supreme court's
comment to the amendment states that the purpose of the
amendment is to permit acquisition of in personam jurisdiction
to the constitutional limits. 385 Subsequently, in dictum in a
1977 decision-U-Anchor Advertising Co. v. Burt 386_the court
reaffirmed the purpose of the 1975 amendment, implying that
Rule 108 was a valid long-arm provision. That same year two
courts of appeals held that Rule 108 could be used as a longarm statute to acquire in personam jurisdiction over a nonresident, although one held that jurisdiction was lacking under the
facts of the particular case. 387 The Fifth Circuit388 and at least
·'''E.g., Rommel v. Drill Well Oil Co., 270 F.2d 550 (5th Cir. 1959); Albuquerque Nat'l Bank v. Citizens Nat'l Bank in Abilene, 212 F.2d 943 (5th Cir. 1954). See
TEX. R. Cry. P. 811 (In in rem suits against nonresidents under TEX. CIV. PRACTICE & REMEDIES CODE § 17.003 (formerly TEX. REV. CIV. STAT. ANN. art. 1975),
service may be made in the manner provided by Rule 108).
···E.g., Hilt v. Kirkpatrick, 538 S.W.2d 849 (Tex. Civ. App.-Waco 1976, no
writ).
'''Italicized language added by the 1975 amendment.
··'Rule 108 may still be used as a pure notice provision, such as for invoking ex
parte divorce jurisdiction, see, e.g., Heth v. Heth, 661 S.W.2d 303 (Tex. App.-Ft.
Worth 1983, writ dism'd) (notice held invalid since Rule 106 was not complied
wit) or personal jurisdiction in a proceeding in conjunction with one of the Family
Code's long-arm provisions, TEX. FAM. CODE ANN. § 3.26 (divorce) or § 11.051
(suits affecting the parent-child relationship). See, e.g., Perry v. Ponder, 604
.
S.W.2d 306 (Tex. Civ. App.-Dallas 1980, no writ).
811
•
553 S.W.2d 760 (Tex. 1977), cert. denied, 434 U.S. 1063 (1978). See also supra
notes 286-88 and accompanying text.
··'Corliss v. Smith, 560 S.W.2d 166 (Tex. Civ. App.-Tyler 1977, no writ) (alternative holding; jurisdiction also satisfied under TEX. FAM. CODE ANN.
§ 11.051); Fox v. Fox, 559 S.W.2d 407 (Tex. Civ. App.-Austin 1977, no writ).
Accord Grantham v. Aetna Life & Cas. Co., 455 F. Supp. 440, 441 n.1 (N.D. Tex.
1978).
•...Placid Inv., Ltd. v. Gerard Trust Bank, 662 F.2d 1176, 1179 (5th Cir. 1981),
opinion withdrawn and remanded on other grounds, 689 F.2d 1218 (5th Cir. 1982). In
its original opinion the Fifth Circuit had affirmed the district court's dismissal on
grounds that jurisdiction over the defendant was lacking under TEX. REV. CIV.
STAT. ANN. art. 2031b (codified at TEX. CIV. PRACTICE & REMEDIES CODE
§§ 17.041-.045). The court adhered to its prior ruling in Prejean that Tex. Rev.
Civ. Stat. Ann. article 2031 b requires that the cause of action sued on arise out of
specific contacts of the defendant in Texas 652 F.2d 1260. See also supra notes
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PERSONAL JURISDICTION
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two Texas courts of appeals,389 however, have rejected the dictum in U-Anchor and held that Rule 108 cannot be used to circumvent the jurisdictional requirements of the general longarm statute. 390 The Fifth Circuit opinion cited the Rules Enabling Act,391 but did not discuss any of its provisions. 392 The
Texas Constitution provides that the Texas Supreme Court has
the power to make and establish rules of procedure for the
courts of Texas, provided that they are not inconsistent with
the laws of Texas. The supreme court has held that when a
rule of procedure conflicts with a legislative enactment, the
rule must yield. 393 Rule 108, however, does not necessarily
"conflict" with any of the various long-arm statutes. 394 The
better view, it would seem, is that Rule 108 may be used as an
alternative to any long-arm statute, that Rule 108 is cumulative
330·35 and accompanying text. In the meantime, however, the Texas Supreme
Court handed down Hall v. Helicopteros Nacionales de Colombia, S.A.
("Helicol"), 638 S.W.2d 870 (Tex. 1982), in which the court held that article
2031b would be extended to the limits of due process. In Helicopteros the court
literally ignored the nexus requirement of the statute and held that a nexus was
unnecessary if the demands of due process were satisfied. It was for this reason
that the original Placid /nv. opinion was withdrawn. 689 F.2d 1218. The
Helicopteros case was subsequently reversed by the United States Supreme Court
on grounds unrelated to the question of the statutory nexus requirement. 104 S.
Ct. 1868 (1984). The Texas Supreme Court then withdrew its previous opinion in
light of this reversal. 677 S.W.2d 19 (Tex. 1984). It cannot be overemphasized,
however, that the withdrawal was unrelated to the question of any statutory nexus
requirement.
S89Kintt v. Dupuis, 649 S.W.2d 387 (Tex. App.-Austin 1983, no writ); Hilt v.
Kirkpatnck, 538 S.W.2d 849 (Tex. Civ. App.-Waco 1976, no writ) .
• 00 Former TEX. REV. CIV. STAT. ANN. art. 2031b (codified at TEX. CIV. PRACTICE
&: REMEDIES CODE §§ 17.041-.045).
'9'FormerTEX. REV. CIV. STAT. ANN. art. 1731a (Vernon 1972) (codified at TEX.
GOV'T CODE ANN. § 22.004) (Vernon 1985). See infra notes 393-401 and accompanying text.
•9·The Fifth Circuit continues to adhere to the Placid /nv. decision with respect
to Texas Rule of Civil Procedure 108. Placid, 662 F.2d 11 76; Jim Fox Equip., 705
F.2d at 741 n.4; Wyatt v. Kaplan, 686 F.2d 276 (5th Cir. 1982).
'9'Kirkpatrick v. Hurst, 484 S.W.2d 587 (Tex. 1972); Few v. Charter Oak Fire
Ins. Co., 463 S.W.2d 424 (Tex. 1971); see Missouri, K. &: T. Ry. v. Beasley, 106
Tex. 160, 155 S.W. 183 (1913).
In the Few case, the court seized on former language of the Texas Constitution
which vested the supreme court with the power to establish rules of procedure
"not inconsistent with the law of the State." TEX. CONST. art. V, § 25 (1891, repealed 1985). Accordingly, the court held that "when a rule of court conRicts
with a legislative enactment, the rule must yield. 463 S.W.2d at 425. This analysis, however, misses the mark. Since the legislature has enacted the Rules Enabling Act, the inquiry ought to be whether the civil rules meet the requirements
of the Rules Enabling Act, not whether the rules conRict with any other legislative
enactment. TEX. GOV'T CODE ANN. § 22.004 (Vernon 1986).
''''Contra King, 649 S.W.2d 387; Hilt, 538 S.W.2d 849.
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of the statutes. 395 The Rules Enabling Act396 provides that the
supreme court has full rulemaking power regarding practice
and procedure in civil actions (provided that its rules do not
abridge, enlarge, or modify the substantive rights of a litigant).397 Surely, no credible argument can be made that a
long-arm rule does not relate to "practice" or "procedure."
The Rules Enabling Act also expressly states: "So that the
Supreme Court has full rulemaking power in civil actions, a
rule adopted by the Supreme Court repeals all conflicting laws
and parts of laws governing practice and procedure in civil actions, but substantive law is not repealed."398 Clearly, a longarm rule is not "substantive" law in any traditional sense. 399
'""Indeed, article 2031b, § 7, provided that the statute was "cumulative of all
existing statutes." TEX. REV. CIV. STAT. ANN. art. 2031b § 7 (repealed 1985).
With the repeal of article 2031b, section 7 was not carried forward in the Texas
Civil Practice and Remedies Code, along with all the other sections of this superseded statute. See TEX. CIV. PRACTICE & REMEDIES CODE §§ 17.042-.045. Similar
provisions in other codified statutes relating to service of process, however, were
retained. See, e.g., TEX. CIV. PRACTICE & REMEDIES CODE §§ 17.021 (e) (for service
on certain noncorporate business agents; "Service of process under this section is
in addition to other methods of service."); § 17.091(d) (long arm jurisdiction in
delinquent tax cases; "Service under this section is in addition to procedures provided by Rule 117a); § 17.093 (service on a foreign railway; "In addition to other
methods of service provided by law"). The failure to codify article 2031b, § 7,
may have been an oversight. If not, it would appear that this failure violates the
stated purpose of the Code. See TEX. CIV. PRACTICE & REMEDIES CODE § 1.001
(Vernon 1986).
One commentator has implied that he believes that Rule 108 neither conflicts
nor is inconsistent with the general long-arm statute. Weintraub, The Fifth Circuit
Wrestles With the Texas Long-Arm, 14 TEX. TECH. L. REV. I, 15 (1983).
5OOTEX. GOVT. CODE § 22.004.
597 [d. § 22.004(a).
598/d. § 22.004(c).
5W But if. Akers v. Epperson, which held that the statutory scheme for the appellate subject matter junsdiction of the supreme court was "substantive" law. 172
S.W.2d 512, 518 n.1 (Tex. Civ. App.-San Antonio 1942, no writ). In Few, without discussing whether the statute in question was substantive, the supreme court
held that Texas Rule of Civil Procedure 39, which deals with compulsory joinder
of parties, conflicted with Family Code § 4.04(a). 463 S.W.2d 424. The court
stated that if only Rule 39 were involved, it would have held that both spouses
must be joined as plaintiffs inasmuch as any award would be their community
property which is a '~oint" ownership right of spouses. Section 4.04{a) provides,
however, that a spouse may sue and be sued without the joinder of the other
spouse. TEX. FAM. CODE ANN. § 4.04(a) (Vernon 1975). In view of this conflict,
the court held that Rule 39 would have to yield to the Family Code. Subsequent
to the Few decision, the supreme court seemingly narrowed its broad holding and
arguably limited the Few rule to conflicts between the civil rules and "substantive"
law. In so doing, however, the court construed "substantive" law extremely
broadly. In Kirkpatrick, the court held that despite the fact that Rule 4 extended
the statutory limitation period in that case one day by reason of the fact that the
last day of the statutory period was a legal holiday, the action was time barred.
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Moreover, It IS difficult to see how a long-arm rule affects a
nonresident's "substantive" rights. 400 If, on the other hand,
the supreme court stands fast to its dictum in U-Anchor, implying that Rule 108 is a long-arm provision, it will have to do
some fancy footwork-with a pen between figurative toes-to
reconcile such a result with its previous cases.401
But even if Rule 108 is invalid on the ground that it conflicts
with a long-arm statute, one wonders whether there remains
any real difference in application between Rule 108 and the
general long-arm statute,402 despite the fact that the literal language of the latter evidences that it is the more restrictive of
the two. Ifboth are to be applied as far as due process permits,
they are functionally equivalent. Of course, in Helicopteros the
Texas Supreme Court only ignored the nexus requirement of
the statute, but a predictable extension of Helicopteros is that the
court will construe the "doing business" requirement of the
general long-arm statute as far as due process permits and reject the notion that doing business under the statute is limited
to its specific enumerations.403 For example, the statute proThe court reasoned that since the statute did not provide that its two-year period
shall be exclusive of the legal holiday in question, Rule 4 could not be given the
effect of enlarging the time period. Kirkpatrick, 484 S.W.2d 587. But the broad
language of the Few holding has been applied in cases subsequent to the Kirkpatrick decision without any discussion or consideration of whether the statute in
question was "substantive" law. E.g., C.E. Dukes Wrecker Serv., Inc. v. Oakley,
526 S.W.2d 228 (Tex. Civ. App.-Houston [lst Dist.) 1975, writ ref'd n.r.e.); see
Harper v. Amer. Motors Corp., 672 S.W.2d 44 (Tex. App.-Houston [14th Dist.]
1984, no writ) (same issue as in Kirkpatrick, but quoting broad language of Few).
See also Purolator Armored v. R.R. Comm'n., 662 S.W.2d 700, 702 n.4 (Tex.
App.-Austin 1983, no writ) (In a case involving district court review of a final
order of an administrative agency under the APTRA, the court of appeals held
that since the case was within the district court's "purely" statutoryjurisdiction, as
opposed to its jurisdiction given by the common law and the Texas Constitution,
the Texas Rules of Civil Procedure do not apply where they conflict with the
APTRA).
400See Weintraub, supra note 395, at 14.
Article V, § 13, of the Texas Constitution provides for a 9-to-3 jury verdict in
civil cases, unless changed by the legislature. Despite this provision, Rule 291,
prior to the 1973 amendment, required a unanimous verdict. Tex. R. Civ. P. 291
(Vernon 1977). The 1973 amendment deleted the unanimity requirement in Rule
291 and reworded Rule 292 to provide for a 10-to-2 jury verdict. TEX. R. CIV. P.
291, 292. Arguably, any deviation from the 9-to-3 requirement is unconstitutional, unless the legislature alters this ratio. See Kronzer & O'Quinn, Let's Return
to Majority Rule in CivilJury Cases, 8 Hous. L. REV. 302, 310-17 (1970). And yet the
supreme court has never questioned the validity of Rule 291.
""Compare U-Anchor, 553 S.W.2d 760 with Kirkpatrick, 484 S.W.2d 587; Few, 463
S.W.2d 424; Missouri Ry, 155 S.W. 183.
'O"TEX. CIV. PRACTICE & REMEDIES CODE §§ 17.041-.045.
'O"ld. § 17.042.
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vides that a nonresident does business in Texas if he contracts
with a Texas resident and either party is to perform the contract in whole or in part in Texas. 404 If the requirements of due
process are otherwise met, the defendant should be amenable
to jurisdiction notwithstanding that the contract is to be performed wholly outside Texas.405 Suppose instead that service
is made pursuant to Rule 106, which is expressly contemplated
by Rule 108. Another logical extension of Helicopteros would be
to ignore, for example, the statute's requirement of substituted
service on the Secretary of State,406 so long as service was constitutionally valid. The Supreme Court, however, would probably not go this far. At most it would hold that even if the
defendant is amenable to the trial court's jurisdiction, the
mechanical requirements of an applicable notice provisionwhether it be, for example, the requirements for Rule 108 or
the general long-arm statute-must be satisfied.
III.
SPECIAL ApPEARANCE PRACTICE IN TEXAS
A. From York v. Texas to Kawasaki Steel Corp. v. Middleton
Under the Texas practice prior to the adoption in 1962 of
Rule 120a of the Texas Rules of Civil Procedure, anyappearance by the defendant in a case, even if only to object to the
court's jurisdiction over him, operated as a general appearance
and thus he submitted himself wholly to its jurisdiction. This
practice was considered by many as the "ultimate in jurisdictional proventalism,"407 a "Catch-22"408 and an example of
"indefensible unfaimess.''409 At the time Texas adopted Rule
120a, all states except Mississippi permitted a special appearance. 410 Two years later, Mississippi followed suit411 and also
adopted the special appearance practice. In York v. Texas,412
•...ld. § 17.042(1).
·"·Contra Cousteau, 495 F.2d 483 (place of execution and consumation of the
contract is irrelevant; rather, performance is the touchstone). Whether the view in
Cousteau is still valiq in light of the Helicopteros case is uncertain. See supra notes
317-19 and accompanying text.
·""See TEX. CIV. PRACTICE & REMEDIES CODE §§ 17.043-.045.
''''Thode, supra note 1. See also supra notes 1-2 and accompanying text.
'''''Liberty Enter. v. Moore Transp. Co., 679 S.W.2d 779, 783 (Tex. App.-Fort
Worth, 1984), rev'd on other grounds, 690 S.W.2d 570 (Tex. 1985).
·""Thode, supra note 1. at 293.
·'''Thode, supra note 1, at 280 n.3; R. LEFLAR, AMERICAN CONFLICTS LAw 57 (3d
ed. 1977).
'"Mladinich v. Kohn, 250 Miss. 138. 164 So. 2d 785 (1964) .
,2
• 137 U.S. 15 (1890).
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the United States Supreme Court held that the prior Texas
practice of refusing to allow a special appearance did not violate due process. First, the Court held that the denial of a right
to be heard on the jurisdictional question before judgment
does not deprive the defendant of liberty or property because
the mere entry of the judgment does not involve any deprivation. It is only when the judgment is sought to be enforced that
the defendant's liberty or property is in danger. In other
words, no deprivation occurs until the judgment is actually
sought to be enforced or executed. Second, at that point due
process of law is afforded since the defendant can avoid the
effects of the default judgment by bringing an original action to
enjoin its enforcement on ground of a lack of valid jurisdiction.
Moreover, if the default judgment is pleaded as a defense to
any suit brought by the defendant, he is free to have the court
determine the validity of the judgment. Similarly, if the plaintiff sues on the judgment, the defendant may avoid its effects if
he can convince the enforcing court that jurisdiction was lacking over him in the prior suit. The Supreme Court conceded
that it would certainly be more convenient from the defendant's standpoint to permit him to object to jurisdiction in the
first instance in the court in which the suit was originally
brought, but that "mere convenience is not substance of
right."413 The "defendant's choice of either appearing and defending on the merits or staying away and attempting to successfully collaterally attack the judgment was often a grizzly
one at best. If he appeared, he could not challenge even a constitutional defect in adjudicatory authority; if he defaulted and
subsequently lost his collateral attack on jurisdictional
grounds, he was bound by the judgment, even if the court that
rendered the former judgment committed constitutional errors
in reaching the merits. 414 In the majority of cases, the defendant appeared and contested on the merits rather than taking
the risk of placing his entire defense on the jurisdictional
ground in a subsequent proceeding. 415 Finally, in 1962 the
Texas Supreme Court recognized the special appearance with
the adoption of Rule 120a.
mId. at 21.
... E.g., Treinies v. Sunshine Mining Co., 308 U.S. 66 (1939) (federal court re-
quired to give full faith and credit to Idaho state court judgment that erroneously
held a prior Washington court lacked valid jurisdiction, thus violating the full faith
and credit clause in refusing to honor the Washington court judgment).
mThode, supra note I, at 293.
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The scope of a special appearance permitted under Rule
120a is contained in the first paragraph:
[A] special appearance may be made by any party
either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person
or property of the defendant on the ground that such
party or property is not amenable to process issued by
the courts of this State.
The first paragraph of Rule 120a concludes with the admonition that "[e]very appearance, prior to judgment, not in compliance with this rule is a general appearance."
If the defendant makes a general appearance, he has waived
any defect in, or requirement for, obtaining valid jurisdiction
over him. 416 Due to the language of Rule 120a quoted above,
the only basis for a special appearance in Texas is for the defendant to show he is "not amenable to process."417 Before
the Texas Supreme Court's 1985 decision in Kawasaki Steel Corporation v. Middleton,418 many courts of appeals had misconstrued the scope of a Rule 120a special appearance. 419 In
Kawasaki, the court held that curable defects in jurisdiction over
a defendant or his property must be challenged by a motion to
quash the citation or service of process,420 not by a special appearance.42I Examples of curable defects include: 1) reliance
on the wrong long-arm statutes;422 2) reliance on the proper
long-arm statute, but failure to properly allege the requiredjurisdictional facts or conditions which are a prerequisite under
416Steve Tyrell Prod., Inc. v. Ray, 674 S.W.2d 430 (Tex. App.-Austin 1984, no
writ);). WICKER &: D. BENSON, TEXAS LAWVER'S GUIDE §J2.39 (1982).
417Kawasaki, 699 S.W.2d 199; Wheat, 700 S.W.2d 915.
418 699 S.W.2d 199. See also supra notes 298·303 and accompanying text.
418E.g., TM Prod., Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427
(Tex. App.-Dallas 1981), writ ref'd n.r.e. per curiam, 639 S.W.2d 450 (Tex. 1982);
In re D.N.S., 592 S.W.2d 35 (Tex. Civ. App.-Beaumont 1979, no writ); Mills v.
Stinger Boats, Inc., 580 S.W.2d 106 (Tex. Civ. App.-Easdand 1979, writ ref'd
n.r.e.); Menchaca v. Chrysler Life Ins. Co., 604 S.W.2d 287 (Tex. Civ. App.-San
Antonio 1980, no writ); Gathers v. Walpace Co., 544 S.W.2d 169 (Tex. Civ.
App.-Beaumont 1976, writ ref'd n.r.e.); Burgess v. Ancillary Acceptance Corp.,
543 S.W.2d 738 (Tex. Civ. App.-El Paso 1976, writ ref'd n.r.e.); Curry v. Dell
Publishing Co., 438 S.W.2d 887 (Tex. Civ. App.-EI Paso 1969, writ ref'd n.r.e.).
All of the above cases were expressly disapproved in Kawasaki, 699 S.W.2d at
202.
420 See TEX. R. CIV. P. 122.
421See TEX. R. CIV. P. 120a.
422 E.g. , Aamco, 450 S.W.2d 769.
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the statute for valid service under it;423 3) defects in service of
process or in proof of service of process, such as where the record fails to show that the defendant was in fact served in the
manner required by the long-arm statute424 or where service
was made in an improper or unauthorized manner;425 4) no notice given to the defendant in violation of state law or due process;426 5) defects in the citation;427 and 6) defects· in the
return. 428
Quoting Professor Thode,429 the court explained the narrow
scope of Rule 120a:
The words "not amenable to process issued by the
courts of this state" can only be interpreted to mean
mE.g., McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965) (failure to allege that
defendant did not maintain a regular place of regular business in Texas or a designated agent for service of process as a prerequisite to reliance on former TEX.
REV. CIV. STAT. ANN. art. 2031b, § 3 (current version in TEX. Gov'T. CODE ANN.
§ 17.044(b»).
In Blumenthal v. Ameritex Computer Corp., the Dallas Court of Appeals held
that the plaintiff's petition need not echo the exact wording of the statute, so long
as the pleadings and record compel the inference that the statutory requirements
are met. 646 S.W.2d 283 (Tex. App.-Dallas 1983, no writ). The court also rejected the defendant's assertion that the petition was defective in that it failed to
allege sufficient minimum contacts of the defendant to satisfy the requirements of
due process. Instead, the defendant has the burden of demonstrating that the due
process criteria have not been met when he makes his special appearance, if any,
to contest jurisdiction. Id.
otoE.g., Whitney v. L & L Realty Corp., 500 S.W.2d 94 (Tex. 1973) (record
failed to show that Secretary of State forwarded process to defendant, as required
by TEX. REV. CIV. STAT. ANN. art. 2031b (current version in TEX. GOVT. CODE
§ 17.045»; Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex. Civ. App.-Dallas
1962, writ ref'd n.r.e.).
mE.g., Smith v. Commercial Equip. Leasing Co., 678 S.W.2d 917 (Tex. 1984)
(The defendant was served by certified mail, but the citation contained language
which had the potential to mislead the defendant that personal service of process
was required and would subsequently occur. Texas Rule of Civil Procedure
106(a) authorizes service by certified mail "unless the citation ... otherwise directs." The court held that the manner of service conflicted with the terms of the
citation and thus was invalid.); Dosamantes v. Dosamantes, 500 S.W.2d 233 (Tex.
Civ. App.-Texarkana 1973, writ dism'd) (requirement of personal service under
Rule 106 not complied with by pushing notice under the defendant's door).
<toE.g., Clayton v. Newton, 524 S.W.2d 368 (Tex. Civ. App.-Ft. Worth 1975,
no writ); see Mullane, 339 U.S. 306.
Ot1 E.g., Soucchi v. Woodruff, 503 S.W.2d 356 (Tex. Civ. App.-Ft. Worth 1973,
no writ).
In Smith, the language of the citation required personal service of process. 678
S.W.2d 917. While the Court did not address the point, it would seem that the
citation was defective since the clerk had no valid basis for limiting the method of
service to personal service. See TEX. R. CIV. P. 103.
OtOE.g., Soucchi, 503 S.W.2d 356; Upsham v. Boaz Well Serv., Inc., 357 S.W.2d
411 (Tex. Civ. App.-Ft. Worth 1962, no writ).
4lI1lThode, supra note I, at 312-13.
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that the special appearance is available solely to establish that the Texas court cannot, under the federal and
state constitutions and the appropriate state statutes,
validly obtain jurisdiction over the person or the property of the defendant with regard to· the cause of action pled. Defective s~rvice or defective process, or
even an attempt to bring the defendant before the
court under the wrong statute does not authorize the
use of the special appearance. If the defendant attempts to make a special appearance to raise any of
these contentions, then his appearance is a general
one and the rule of York v. State applies to him with full
force. 4 !lO
Thus in a special apperance a nonresident defendant has the
burden of proof to negate all bases-pled or unpled by plaintiff-of his amenability to the court's jurisdiction.4 !l1
It should be noted that if the trial court sustains a special
appearance, it must dismiss the suit.4 !l2 If a trial court overrules a special appearance and the judgment is reversed on appeal on ground that the defendant is not amenable to process,
the case should be ordered dismissed. 4 !l!l But if the defect in
jurisdiction is "curable," the appellate court should order the
case remanded, not dismissed. 4 !l4
B.
Special Appearance After Default Judgment
An important question recently considered by the Texas
Supreme Court is whether a defendant may make a special ap..°699 S.W.2d at 202. Professor Thode also stated:
Ifjurisdiction can be validly obtained over the person or property of the
defendant. but such has not been done because of error or defect. the
attempted special appearance to raise the error or defect gives the court
in personam jurisdiction over the defendant. just as in the days prior to
the adoption of rule 120a.
Thode. supra note I. at 313. A few courts prior to Kawasaki. 699 S.W.2d 199. had
correctly interpreted Rule 120a. E.g.• Steve Tyrell Prod.. 674 S.W.2d 430; Butler v.
Butler. 577 S.W.2d 501 (Tex. Civ. App.-Texarkana 1978. no writ). The authors
of this Article support the Thode view. See Newton. Survey: Conflict ofLaws. 36 SW.
LJ. 397.403 (1982);). WICKER Be D. BENSON. TEXAS LAWYER'S GUIDE §§J2.57.
J2.58 (1982).
m Kawasaki. 699 S.W.2d at 203.
"'TEX. R. CIV. P. 120a.
"'See Kawasaki. 699 S.W.2d 199; Smith. 678 S.W.2d 917; Steve Tyrell Prod.• 674
S.W.2d 430; Carbonit Houston. Inc. v. Exchange Bank. 628 S.W.2d 826 (Tex.
App.-Houston [14th Dist.] 1982. writ ref'd n.r.e.); TEX. R. CIV. P. 123.
•...Smith. 678 S.W.2d 917; McKanna. 388 S.W.2d 927; Steve Tyrell Prod.• 674
S.W.2d 430; see Kawasaki. 699 S.W.2d 199; TEX. R. CIV. P. 123.
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PERSONAL JURISDICTION
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pearance after a "no-answer" default judgment, i.e., a judgment entered before the defendant has made any appearance
in the case.435 Such a special appearance should be raised
either in a timely filed motion to vacate the judgment436 or by
direct appeal from the judgment.437 Rule 120a provides that a
special appearance must be made by sworn motion filed prior
to a motion to transfer venue or any other plea, pleading or
motion. A special appearance made for the first time after a
no-answer default judgment is rendered satisfies this requirement provided that the defendant files no other plea, pleading
or motion before the special appearance. 438 While it is true
that a special appearance under Rule 120a contemplates a motion filed prior to judgment-indeed, as the first filed motion
or pleading in the suit439-nothing in the rule would prevent a
special appearance made after a no-answer default judgment.
In fact, Rule 120a expressly provides: "Every appearance, prior
to judgment, not in compliance with this rule is a general appearance."440 This language implies that Rule 120a does not purport to deal with a special appearance made after judgment.
Although the rules do not expressly authorize a post-judgment
...A "no-answer" default judgment occurs where the defendant not only files
no answer but also makes no appearance at all in the case. E.g., Edwards Feed
Mill, Inc. v.Johnson, 158 Tex. 313, 311 S.W.2d 232 (1958); see Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979). A "nihil dicit" default judgment occurs where
the defendant makes an appearance in the case, such as filing a motion to dismiss
for improper venue, but files no answer. See O'Quinn v. Tate, 187 S.W.2d 241
(Tex. Civ. App.-1945, writ ref'd). A "post-answer" default judgment occurs
where the defendant has answered but fails to appear at trial. Stoner, 578 S.W.2d
679. E.g., Mullen v. Roberts, 423 S.W.2d 576 (Tex. 1968).
'!6The motion must be filed within 30 days after the judgment is signed. TEX.
R. CIV. P. 329b(a), (g).
m Conceivably, a defendant could attempt to raise a special appearance in a bill
of review, but even if he convinced the court that he was not amenable to process,
he would also have to prove, inter alia, that he had a meritorious defense. See
Aquirre v. Moor Park Inv. Co., 570 S.W.2d 103, 106 (Tex. Civ. App.-El Paso
1978, no writ);J. WICKER, 31 TEXAS PRACTICE: CIVIL TRIAL AND ApPELLATE PROCEDURE § 320 (1985); Thode, supra note I, at 318; Hodges, Collateral Attacks on
Judgments, 41 TEX. L. REV. 163, 181 (1962).
• S8 By way of contrast, where a nihil dicit or post-answer default judgment has
been entered, the defendant has necessarily made an appearance prior to the rendition of the judgment and thus prior to the special appearance. Since Rule 120a
also provides that every appearance made prior to judgment and not in compliance with the rule is a general appearance, the defendant may not make a postjudgment special appearance in such cases. TEX. R. CIV. P. 120a.
"9Rule 120a, however, does expressly allow the issuance of subpoenas for witnesses and the use of discovery devices, without such actions resulting in a waiver
of the special appearance. ld.
·<Old. (emphasis added).
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special apperance, the authors believe that the defendant has a
constitutional right to do so provided that it urges an incurable,
constitutional defect in jurisdiction over the defendant and it is
the first appearance made by the defendant in the suit.
In considering this question, it is helpful to realize the distinction between a collateral, as opposed to direct, attack on a
judgment. A special appearance, whether made before or after
judgment, is a direct attack on the court's exercise ofjurisdiction over the defendant. A direct attack on a judgment is made
either in the trial court that rendered the judgment, such as by
a motion to vacate the judgment or for a new trial or a bill of
review, or by direct appeal from the judgment, such as by a
normal appeal or writ of error to the court of appeals. 441 A
collateral attack on a judgment, on the other hand, is an attempt to avoid the binding effect of a judgment in a subsequent, separate judicial proceeding. It is not limited to being
raised in the court whose judgment is being attacked or in the
appellate court that had or would have had direct appellate jurisdiction over the judgment. Significantly, a collateral attack
may be made only to attempt to show that jurisdiction over the
subject matter or the defendant was lacking; it may not inquire
into the merits of the judgment attacked, not even if erroneously decided. 442 If the defendant makes an appearance in the
first action, however, he may not attempt to collaterally attack
the judgment on ground that the court lacked valid personal
jurisdiction over him. 443 But if the defendant has made no appearance at all in the case whose judgment he seeks to collaterally attack, he has a right to do so on ground of some
constitutional defect in jurisdiction over him,444 despite some
dubious Texas court decisions to the contrary.445
"'See Austin Indep. School Dist. v. Sierra Club. 495 S.W.2d 878 (Tex. 1973);
Crawford v. MacDonald. 88 Tex. 626. 33 S.W.2d 325. 327 (1825).
"'Milliken v. Meyer. 311 U.S. 457 (1940); Cobb v. Pratt. 593 S.W.2d 351 (Tex.
Civ. App.• - Houston [14th Dist.] 1979. writ ref'd n.r.e.); see Treinies. 308 U.S. 66;
see also supra note 414.
'''Baldwin v. Iowa State Traveling Men's Ass·n.• 75 U.S. 1244 (1931).
...See. e.g., Walker v. City of Hutchinson. 352 U.S. 112. 178 (1956) (insufficient
notice under standards of due process); New York Life Ins. Co. v. Dunlevy. 241
U.S. 518 (1916) (defendant not amenable to personal jurisdiction).
"'In Crawford. the supreme court held that a collateral attack may not be made
on ajudgment "regular on its face" by any evidence outside the record. 33 S.W.
325. The court also said:
Therefore it is well settled that. where a personal judgment has been
rendered against a defendant by a domestic court of general jurisdiction.
and under the same his property has been seized and sold. he will not, in
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Since the defendant has the constitutional right to collaterally attack a judgment on jurisdictional grounds if he made no
appearance in the case, he ought to have the same right to do
so "directly" after a default judgment has been entered in a
case in which he made no appearance prior to the entry of the
judgment without being deemed to have made a general appearance. Even if the rule of York v. State is still valid, which the
authors seriously doubt, it applies only to attempted appearances made prior to judgment. If an attack on the court's jurisdiction over the defendant is made after judgment, there ought
to be no distinction made between direct and collateral attacks
as far as the question of whether the court may, within constitutionallimits, view the attack as a general appearance.
The question of whether a special appearance may be made
after default judgment was squarely addressed by the Fort
Worth Court of Appeals in Liberty Enterprises, Inc. v. Moore Transportation Co. ,446 although the constitutional implications were
a contest over the title to the property, be allowed to show by evidence
dehors the record that the judgment was rendered without any service
whatever upon him. Logically, the judgment is in fact, void, but on
grounds of public policy the courts, in order to protect the property
rights, apply the rule aforesaid, which precludes inquiry into facts dehors
the record for the purpose of showing the invalidity of thejudgment; and
therefore, for all practical purposes, in such collateral attack, the judgment is held valid.
[d. at 328.
Thus, it has been held that where the record is silent, a conclusive presumption
exists that jurisdiction is satisfied. White v. White, 142 Tex. 499, 179 S.W.2d 503
(1944) (subject matter jurisdiction defect alleged); Fitch v. Boyer, 51 Tex. 336
(1879) (default judgment; insufficient service alleged). Some cases seem to base
their decisions on the Texas rule that a collateral attack is prohibited where the
judgment contains affirmative recitals that jurisdiction was duly obtained over the
defaulting defendant. E.g., Akers v. Simpson, 445 S.W.2d 957 (Tex. 1959); Waldron v. Waldron, 614 S.W.2d 648 (Tex. App.-Amarillo 1981, writ dism'd);
Imatani Marolejo, 606 S.W.2d 710 (Tex. Civ. App.-Corpus Christi 1980, writ
dism'd); Aquirre v. Moor Park Inv. Co., 570 S.W.2d 103, 105 (Tex. Civ. A{>p.1978, writ dism'd) ("Texas may be the only State in which recitations in the]udgment control the rest of the record, even when such record shows affirmatively a
lack ofjurisdiction.") See Hodges, supra note 437 at 532. Other cases, however,
continue to adhere to the view that even absent an affirmative recital of good
jurisdiction over the defendant, a conclusive presumption exists that the jurisdictional requirements were satisfied, unless the defendant can show that the record
on its face expressly negatives the existence of facts essential to such valid jurisdiction. E.g., Security Trust Co. of Austin v. Libscomb County, 142 Tex. 572, 180
S.W.2d 151 (1944); Etzel v. United States Dep't of Air Force, 620 S.W.2d 853
(Tex. App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.); see Eubanks v. Hand,
578 S.W.2d 515 (Tex. Civ. App.-Corpus Christi 1979, writ ref'd n.r.e.). See also
J. WICKER, 31 TEXAS PRACTICE: CIVIL TRIAL AND ApPELLATE PROCEDURE § !H 1
(1985).
446
679 S.W.2d 779.
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not considered. Three weeks after a no-answer default judgment had been entered against the defendant, it filed a special
appearance and, "subject to same," an answer. Later that day,
the defendant filed a motion to set aside the default judgment
and a motion of new trial. The new trial was granted by agreed
order. Thereafter the plaintiff filed a motion to vacate the
agreed order of new trial and to reinstate the default judgment,
or, in the alternative, to deem the defendant's conduct as a
general appearance. The trial court sustained the alternative
plea and held that the defendant had made a general appearance. The court of appeals reversed the trial court's determination ofjurisdiction. It rejected the plaintiff's argument that
since an appearance after judgment is not covered by Rule
120a, the necessary implication is that there can be no special
appearance made after judgment. On reasoning similar to that
expressed above in this Article, the court of appeals held that
not only was there nothing in Rule 120a to prevent a special
appearance after default judgment, its denial would fly in the
face of the intended purpose behind Rule 120a.447 As to the
defendant's conduct, the court found that the filing of the motion for new trial did not constitute a general appearance, since
it was filed subject to the special appearance and for the purpose of securing a hearing on the jurisdictional question. The
supreme court reversed, however, and held that the defendant
made a general appearance because it stated in its motion for
new trial that "[defendant] is ready to try this case when it is
properly set for triaL" Furthermore, the defendant had agreed
to the trial court's order "reinstating the cause of action."448
While the supreme court did not expressly state that a special
appearance may be made for the first time after default judgment is entered, the implication of the opinion is that it may be
made at that time; otherwise, the conduct of filing the motion
for new trial, which included the defendant's statement that it
was ready for trial, would have been immaterial. In other
words, if the defendant's special appearance could not have
been made, the mere attempt to make it would have been a
general appearance. 449 This is consistent with the unanimous
··'[d. at 783.
··'Libert" 690 S.W.2d 570.
···Only three other cases were found mentioning the question of whether a defendant may make a post-default judgment special appearance by a motion in the
trial court to have the judgment set aside. In Steve Tyrell Productions, Inc. v.
Ray, 674 S.W.2d 430, the court of appeals held that the question did not need to
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PERSONAL JURISDICTION
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view that the defendant may file a motion in the trial court to
have a default judgment set aside on grounds of want of or defect in service of process. That is to say, the filing of the motion does not constitute a retroactive general appearance so as
to preclude the attack on the judgment. 45o
What is troublesome about the supreme court's decision in
Liberty Enterprises, Inc., however, is its determination that even
though the defendant had made a special appearance, its subsequent conduct constituted a general appearance. The authors agree that the defendant's statement that it was ready to
try the case, in and of itself, was conduct that normally should
be considered a general appearance. But since it was made
subsequent to and expressly subject to an adverse ruling on the
special appearance, it is difficult to see how such a statement
made under these circumstances can constitute a general apbe resolved, because even assuming such a special appearance may be made, the
defendants waived their special appearance by not pressing for a hearing on the
motion. The court adopted the language of Rule 120a, which expressly requires
that a special appearance motion "be heard and determined before a motion to
transfer venue or any other plea or pleading may be heard." In Ray the defendants had also requested, obtained and participated in a hearing on their motion
for new trial. A hearing on the special appearance motion. however, was never
conducted. In an apparent alternative holding, the court seems to hold that even
if a hearing had been conducted on the special appearance and held before any
other hearing, the special appearance would still have been waived since the trial
court never ruled on the motion. The court invoked the familiar, but not entirely
fair, Texas rule that a motion not acted upon by the trial court furnishes no basis
for a point of error on appeal. See Tex. R. App. P. 52(a).
In Stout-jennings-Schmidt Co. v. Schmidt, 615 S.W.2d 267 (Tex. App.-Dallas
1981, writ dism'd), several defendants filed special appearances attacking a default judgment, and subject thereto, motions to quash and for new trial. The trial
court subsequently entered an order "that the judgment entered . . . is in all
things set aside and void for all purposes," The court of appeals held that the trial
court order had the effect of an order of new trial, but this statement, when read
in light of the entire opinion, provides no support for the proposition that if a
post-judgment special appearance is sustained by the trial court, a new trial,
rather than dismissal, should be ordered. In the first place, there is no way of
determining the ground of the trial court's order, and in the second place, the
statement of the court of appeals was made to support its conclusion that the
order was interlocutory and nonappealable. The court then dismissed for want of
appellate jurisdiction.
In Fox v. Fox, 559 S.W.2d 407 (Tex. Civ. App.-Austin 1977, writ dism'd), the
defendant filed a special appearance in the trial court after a default judgment was
entered. The court declined to consider the point, since none of the parties questioned the propriety or effect of such a special appearance. 559 S.W.2d at 409.
••oGriffith v. Langley, 40 S.W.2d 1100 (Tex. Civ. App.-Austin 1931, no writ);
lola State Bank v. Tant, 240 S.W. 621 (Tex. Civ. App.-Galveston 1922); Atchison, T. S.F. Ry. v. Adams, 14 S.W. 1015 (Tex. Civ. App.-1889). The motion, of
course, does constitute a general appearance as to any subsequent proceedings in
the case. If the motion is granted, a new trial will be ordered, not a dismissal.
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pearance. Assuming that a post-default judgment special appearance may be made and is made, the court's ruling that the
conduct referred to constituted a general appearance conflicts
with the spirit of Rule l20a. While a special appearance made
under the rule must be made prior to any other plea, pleading
or motion, the rule expressly authorizes that any other plea,
pleading or motion "may be contained in the same instrument
or filed subsequent thereto without waiver of such special appearance."45 1 It would be an unfortunate regression to the
strict common law rules of due order of pleading if the defendant is treated as having waived a special appearance merely because he files a motion thereafter, particularly where it is made
subject to an adverse ruling on the special appearance. 452
Only one case was found involving the question of whether a
special appearance may be made in an appeal from a no-answer
default judgment.453 In BLS Limousine Co. v. Bus Lease, Inc.,454
the defendant appealed from a default judgment urging that
jurisdiction was lacking on ground that due process requirements of minimum contacts were not satisfied. The court of
appeals held that the defendant may raise a minimum contacts
direct attack only by a pre-judgment special appearance under.
Rule l20a, and not in an appeal from a default judgment. The
court reasoned that to survive a jurisdictional attack on appeal,
the petition need only allege jurisdictional facts necessary to
satisfy the applicable long-arm statute. 455 As previously dis451TEX. R. ClV. P. 120a.
"'But the defendant must be careful to press the trial court to conduct the
special appearance hearing and actually rule on the motion before any other hearing, such as a motion for new trial. Steve Tyrell Prod., 674 S.W.2d 430; see also supra
note 449.
"'The only case cited by the supreme court in support of its decision, St. Louis
Be S.F.R. Co. v. Hale, 109 Tex. 251, 206 S.W. 75 (1918), is not on point. In Hale
the defendant filed a motion for an order requiring the plaintiff to give security
for costs. Two days later it filed a motion to quash service of citation on grounds
of improper service. First, the defendant's motion to quash was based on a curable, rather than an incurable, defect in jurisdiction, and therefore was not subject
to a special appearance, regardless of when it was made. See Kawasaki, 699 S.W.2d
199; see also supra notes 420-434. Second, and equally if not more significant, the
motion to give security was made before, not subject to the motion to quash.
""'680 S.W.2d 543 (Tex. App.-Dallas 1984, writ ref'd n.r.e.).
"'McKanna, 388 S.W.2d 927; Blumenthal v. Ameritex Computer Corp., 646
S.W.2d 283 (Tex. App. 1983, writ dism'd).
In Whitney v. L Be L Realty Corp., 500 S.W.2d 94, the Court held that the record must also show that the defendant was served with process according to the
requirements of the statute.
It should be noted that the plaintiff cannot avoid the pleading re~uirement by
serving a petition on the defendant which fails to allege the jurisdictional facts
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cussed, there is nothing in Rule 120a or any other rule that
precludes a special appearance after judgment has been entered. Moreover, the fact that the defendant appeals from a
default judgment, even to raise a curable defect in process,
does not constitute a general appearance so as to preclude appellate review. 456 It seems that the court has confused the matter of pleading jurisdiction, the defects of which are curable,
with alleged defects in amenability to jurisdiction, which has
nothing to do with pleading requirements. While minimum
contacts need not be pled by the plaintiff in his petition, if it
becomes necessary to make a factual determination whether
they exist, a hearing may be conducted for this purpose. It is
true that an appellate court may not consider extrinsic evidence
in reviewing the propriety of the trial court's judgment, not
even as to questions of the trial court's jurisdiction over the
defendant. 457 But while such extrinsic evidence may not be
considered by the appellate court, it should be able to remand
the case to the trial court for the purpose of conducting a hearing on the special appearance. Also, under the circumstances
of the BLS Limousine Seroice, Inc., the authors believe that the
court was constitutionally required to do so. Furthermore, if a
defendant makes a special appearance in an appeal from a default judgment, it should not be his only permissible point of
error. Consistent with the spirit of Rule 120a, he should be
required by the statute, then filing an amended petition curing the defect but
which is not served on the defendant. Even if the plaintiff offers sufficient proof at
the default judgment hearing to support the jurisdictional facts alleged in the unserved amended petition, the judgment can be set aside on appeal. Gourmet, Inc.
v. Hurley, 552 S.W.2d 509 (Tex. Civ. App.-Dallas 1977, writ ref'd n.r.e.).
456Accord H.L. McRae Co. v. Hooker Constr. Co., 579 S.W.2d 62 (Tex. Civ.
App.-Austin 1979, writ dism'd). This is expressly provided for in Rule 123, in
that the defendant is deemed to have made a general appearance only after the
issuance of the mandate, which, of course, occurs after the court disposes of the
merits of the appeal. TEX. R. CIV. P. 123.
The dissent in BLS Limousine Serv., Inc., 680 S.W.2d 543 would have overruled
the Blumenthal case, 646 S.W.2d 283 and have required that the petition also allege sufficient facts to show that, if true, the minimum constitutional requirements
were met. But even though the dissent believed that the defendants were not
accorded due process if required to defend under the pleadings in the case, it
concluded that by pursuing the appeal, the defendants had entered a general appearance and therefore were entitled only to a remand for a trial on the merits,
not a dismissal. BLS Limousine, 680 S.W.2d at 549. Again, the authors of this
Article disagree that a defendant makes a general appearance by appealing from a
default judgment, provided he raises a special appearance in his appeal.
mThursby v. Stovall, 647 S.W.2d 953 (Tex. 1983); McEwen v. Harrison, 162
Tex. 125, 345 S.W.2d 706 (1961). For detailed discussion, see J. WICKER, 31
TEXAS PRACTICE: CIVIL TRIAL AND ApPELLATE PROCEDURE § 311 (1985).
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able to join the special appearance point with any other points
of error without waiver of the special appearance. The court
could initially stay the appeal pending a remand for a hearing
on the special appearance. If the trial court sustains the special
appearance and dismisses, the plaintiff may appeal. If the trial
court overrules the defendant's special appearance, the defendant may resume his appeal. If the court of appeals sustains his
point of error respecting the special appearance, it should reverse and order the case dismissed. On the other hand, if it
overrules the jurisdictional point, it can then reach any other
points of error that the defendant has properly preserved and
presented on appeal.
C. Validity of York v. Texas After Shaffer v. Heitner
For at least a quarter of a century after the York 458 decision,
the United States Supreme Court continued. to interpret the
limits of procedural due process in a manner that was unfortu~
nate and unfair. 459 In a case in which the sheriff falsified the
return of service, the Court upheld jurisdiction, since it
thought it-sufficient that the defendant had an adequate remedy-which may have been ony theoretical at best-of going
against the surety on the sheriff's bond. 460 Eighty-seven years
after the York v. Texas decision, the United States Supreme
Court handed down Shaffer v. Heitner. 461 As previously pointed
out,462 the Court held that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth
in International Shoe and its progeny."463 In other words, due
process requires that a state court may not validly assert jurisdiction over a nonresident defendant464 unless the defendant
has "certain minimum contacts with [the forum state] such that
the maintenance of the suit does not offend 'traditional notions
••HI37 U.S. 15.
"oR. LEFLAR, AMERICAN CONFLICTS LAw 50 (3d ed. 1977).
4°°Miedreich v. Lauenstein, 232 U.S. 236 (1914).
461 433 U.S. 186.
462 See supra notes 64-79 and accompanying text.
'6"433 U.S. at 212.
4'''' In a class action, the minimum contacts test does not apply to state-court
assertions ofjurisdiction over a nonresident who is an absent member of a plaintiff
class, at least where the claim is wholly or predominately for money damages.
Phillips Petroleum Co., 105 S. Ct. 2965. The United States Supreme Court has yet to
articulate the current due process requirements for a valid exercise ofjurisdiction
over absent nonresident members of a plaintiff class in other types of class actions
or where jurisdiction is asserted against a nonresident absent member of a defendant class. /d. at 0.3. See also supra notes 235-48 and accompanying text.
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of fair play and substantial justice.' "465 If the qefendant's activities with the forum state are continuous and systematic, the
court may assert jurisdiction even as to claims unrelated to the
defendant's activities within the state. 466 But if the defendant
has only minimum contacts within the state, the claims sued on
must arise out of those contacts in the state.467
The broad holding of Shaffer raises several questions as to the
continuing validity of bases of personal jurisdiction unrelated
to the minimum contacts test. For example, consistent with the
territorial power theory of Pennoyer v. NejJ, 468 if a defendant, no
matter how transient, is served while physically within the borders of a state, the state court acquires valid personal jurisdiction over him. 469 The Shaffer decisions seems to cast doubt on
whether this theory of "transient" jurisdiction is still constitutionally valid, Surely an exercise of jurisdiction violates the
Shaffer rule if the defendant's only contact in the state is his sin·""International Shoe Co., 326 U.S. 310, 316.
•66perkins, 342 U.S. 437.
•6·See Helicopteros, 466 U.S. 408; see also supra notes 194-99 and accompanying
text. The Court left open the question of what sort of qualitative standard must
be met where the defendant's contacts are less than continuous and systematic
and the claim is related to, but does not arise out of, those contacts. Id. at 408
n.lO.
Despite the unequivocal language of the opinion in Shaffer, the minimum contacts test may not have to be satisfied in every instance where a state court asserts
extraterritorial jurisdiction over a nonresident defendant. Indeed, in Shaffer the
Court said in dicta that where the defendant has property in one state, but is not
subject to a valid personal exercise ofjurisdiction by a state court there, that state
may allow the plaintiff to attach the property pending the outcome of a suit in
another state in which valid personal jurisdiction has been acquired. 433 U.S.
186,210. If a judgment favorable to the plaintiff is entered, he may then file an
action in the state where the defendant's property was attached and realize on the
judgment. Id. n.36. E.g., Carolina Power & Light Co. v. Uranex, 451 F. Supp.
1044 (N.D. Cal. 1977). Moreover, the Court expressly left open the question
whether the mere presence of the defendant's property in a state is a sufficient
basis for jurisdiction when no other forum is available to the plaintiff. 433 U.S. at
211, n.37. E.g., Lowring v. Kuwait Boulder Shipping Co., 455 F. Supp. 630 (D.
Conn. 1977) (garnishment in Connecticut on debt claim against foreign corporation that was outside the jurisdiction of the United States). Finally, the Court
apparently left undisturbed classic in rem jurisdiction in the form of ex parte divorce jurisdiction when it said: "We do not suggest that jurisdictional doctrines
... such as the particularized rules governing adjudications of status, are inconsistent with the standard of fairness... ." 433 U.S. at 208 n.30 (emphasis added).
See Williams v. North Carolina, 317 U.S. 287 (1942) (divorce jurisdiction over
nonresident defendant spouse valid where plaintiff is bona fide resident of forum
state).
·r.o95 U.S. 714.
....E.g., Grace v. MacArthur, 170 F. Supp. 442 (E.D. Ark. 1959) (defendant, passenger on a commercial flight from Tennessee to Texas, was served while the
plane was flying over Arkansas).
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gle, transitory presence when he was served. 470 But even if he
has other more substantial, albeit minimum, contacts in the
state, service on the defendant while in the state should not
support jurisdiction over him on a claim unrelated to those
contacts. 471 Even before Rule 120a was adopted, the Texas
courts had refused to exercise transient jurisdiction in some
circumstances that would clearly be unfair. In one case472 the
nonresident defendant was served under the motor vehicle op·
erator's long.arm statute473 for injuries the plaintiff allegedly
received while riding in the defendant's bus in Texas. After the
defendant answered, the plaintiff amended his petition to also
allege injuries he allegedly received in Oklahoma and Missouri.
The court of appeals rejected the plaintiff's contention that the
defendant's general appearance gave the trial court the power
to adjudicate the added claims. Instead, the court held it ac·
quired jurisdiction only to determine the claim based on the
allegations contained in the petition upon which valid service
had been secured and with reference to which the defendant
had filed an answer. Under Rule 120a, even if the original peti.
tion served on the defendant had contained the additional
claims contained in the amended petition, the defendant could
have specially appeared as to those claims without regard to the
claim based on the injuries in Texas. 474
"OContra Humphrey v. Langford, 246 Ga. 782, 278 S.E.2d 22 (1980).
"'See Oxman's Erwin Meat Co. v. Blacketer, 86 Wis. 2d 688,278 N.W.2d 285
(1979) (issue not reached since claim was related to defendant's activities in the
forum state).
mJacobsen v. Brown, 105 S.W.2d Dallas 108 (Tex. Civ. App.-Dallas 1987, writ
dism'd).
mTEX. CIV. PRACTICE Be REMEDIES CODE §§ 17.061·.069.
••• Rule 120a provides: "A special appearance may be made as to an entire pro·
ceeding or as to any severable claim Involved therein." TEX. R. CIV. P. 120a.
Professor Thode maintains that this provision of Rule 120a is required by due
process:
To deny this proposition would involve a drastic expansion of the York v.
State rule. The assertion would have to be made that a state can require a
defendant to default as to one claim wherein the court has jurisdiction of
his person in order that he avoid making a general appearance in the
case which will satisfy the personal jurisdictional requirement as to the
other claim; or in the alternative that he stay completely out of court as to
the entire case. No case has been found that would support such a
sweeping use ofjurisdictional duress. Defendant would be effectively reo
strained from protecting his person or property, in violation of the limi·
tation laid down by the Supreme Court of the United States in York v.
State . ...
Thode, supra note I.
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If a nonresident defendant is in Texas solely to make a special appearance under Rule 120a, he may not be successfully
served with process in another case. 475 Also, if the defendant is
fraudulently induced into Texas for the purpose of serving process on him, the court may decline to exercise jurisdiction.476
The Texas courts, however, have refused to recognize the apparent majority view that a nonresident is immune from original process if served while the nonresident is in Texas to attend
or participate in the trial of another civil477 case,478 unless he is
in Texas for the sole purpose of compelling the return of a
child through habeas corpus proceedings.479 This exception
has been carved out by the Texas Family Code.480
It is true that the exercise of jurisdiction in York v. State 481
was not based on a theory of transient jurisdiction, but the territorial power theory of Pennoyer v. Nejf482 was in full flower at
the time York was decided and therefore may have had at least a
subtle influence on the Supreme Court's thinking. 483 The defendant in York was served while he was in Missouri, not Texas,
but he thereafter appeared in the suit. A general appearance is
based on a theory of validation of the exercise of jurisdiction
over a defendant due to his conduct after the suit is commenced. It is usually attempted to be justified in terms of
mOates v. Blackburn, 430 S.W.2d 400 (Tex. Civ. App.-Houston [14th Dist.]
1968, writ ref'd n.r.e.) (dicta).
'76Brown v. Brown, 520 S.W.2d 571 (Tex. Civ. App.-Houston [14th Dist.]
1975, writ dism'd) (dicta); Cornell v. Cornell, 402 S.W.2d 571 (Tex. Civ. App.1966, no writ) (dicta), rev'd on other grounds, 413 S.W.2d 385 (Tex. 1967) (point not
discussed) .
•77A nonresident witness in a criminal prosecution is immune from service of
process. TEX. CODE CRIM. hoc. art. 24, 28 (1986 Supp.).
478Franklin v. Wolfe, 483 S.W.2d 17 (Tex. Civ. App.-Houston [14th Dist.]
1972, no writ); Oates, 430 S.W.2d 400.
•79TEX. FAM. CODE ANN. § 14.1O(d); Marshall v. Wilson, 616 S.W.2d 932 (Tex.
1981).
""'TEX. FAM. CODE ANN. § 14.1O(d).
'·'137 U.S. 15.
'··95 U.S. 714.
··'The Shaffer holding raises questions about other previously unquestioned
theories of personal jurisdiction. In Shaffer the Court was concerned only with
nonresident defendants. 433 U.S. 186. What about out-of-state service on a resident defendant? Prior to Shaffer, it was clear that domicile in the state was sufficient to bring an absent defendant within the constitutional reach of the state's
long-arm jurisdiction. E.g., Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656, 659
(1971); Owens v. Supreme Court, 52 Cal. 2d 822, 345 P.2d 921 (1959). This basis
of valid personal jurisdiction is based on the holding announced in Milliken, 311
U.S. 457. Cf Blakmer v. United States, 284 U.S. 421 (1932) (U.S. citizenship
supported valid personal jurisdiction of federal court over person served in foreign country).
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waiver by or implied consent of the defendant. If a defendant
objects to an incurable defect in jurisdiction and this is the only
action he takes in the case, he cannot, consistent with even the
most modest semblance of any reason, be said to have waived
the objection to jurisdiction. A variation of the waiver theory is
that his conduct, in the form of an appearance to contest jurisdiction, constitutes his implied consent to the court's jurisdiction. The "implied consent" rationale for asserting jurisdiction
over a nonresident defendant, embraced for a time by the
Supreme Court,484 was later soundly rejected by the Supreme
Court in International Shoe. 485 The Court, of course, was rejecting an implied consent theory ofjurisdiction based on conduct that was the very basis of the claim sued on. If consent
under such circumstances is a fiction, it seems that it is all the
more a fiction when the defendant's appearance to contest jurisdiction is seized on as a basis of implying his consent to jurisdiction. The validity of the York v. Texas rule must be judged by
contemporary notions of basic fairness. To force a defendant
to suffer a default judgment, the merits of which may not be
inquired into, as the price to pay to permit him to attack jurisdiction of the court over him, offends any reasonable concept
of fair play and substantial justice.486
As previously discussed, a defendant makes a general appearance if he appears in a Texas court to object to a curable
defect in jurisdiction over him, such as a defect in the method
or manner of service of process. But the defendant's due process rights are not infringed. First, the defendant has obviously
received actual notice of the suit or judgment; otherwise he
...E.g., Hess, 274 U.S. 352 (1927); See also supra notes 353-54 and accompanying
text.
'·'326 U.S. 310, quoted supra note 356. See also Olberding v. Illinois Central R.R.
Co., 346 U.S. 338 (1953), quoted supra note 356.
···Some federal courts have held that in a quasi in rem action the defendant has
a constitutional right to make a "limited appearance," which permits him to defend on the merits without thereby subjecting himself to personal jurisdiction.
E.g., Minichiello v. Rosenberg, 410 F.2d 106 (2d Cir. 1968); Dry Clime Lamp
Corp. v. Edwards, 389 F.2d 590 (5th Cir. 1968); River Farms, Inc. v. Superior
Court, 252 Cal. App. 2d 604, 60 Cal. Rptr. 665 (1967). See also RESTATEMENT
(SECOND) OFJUDGMENTS § 8 comment g (1982). But the courts are divided on the
question. Contra United States v. Balanovski, 236 F.2d 298 (2d Cir. 1956). See
generally M. ROSENBERG, SMITH & KORN, ELEMENTS OF CIVIL PROCEDURE 356 (4th
ed. 1985). If a general appearance in a quasi in rem action is constitutionally
required, it ought to follow with even more force that a special appearance to
contest the court's personal jurisdiction over the defendant is constitutionally
required.
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PERSONAL JURISDICTION
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would not have appeared in the action to make the attack. 487
Second, if he appears before judgment is entered, he has an
opportunity to file a motion to quash citation or service; and if
the motion is sustained, he is afforded at least an extra twenty
days to file an answer. 488 Since he is given at least as much
time to answer from the date the motion is sustained as he
would have had to answer had he been properly served in the
first instance, he cannot demonstrate any real prejudice-at
least not any of constitutional proportions.489 Third, if he
makes his objection for the first time after a default judgment
has been entered against him, such as in a motion for new trial
or direct appeal from the judgment, procedural due process is
still preserved. If his attack is successful, the judgment will be
vacated by the trial court-or reversed and remanded if the
4.7 It may be that he was never served with citation, and no attempt to give him
notice was made, but later he received actual notice of the suit or Judgment "by
the grapevine". Or, he may have been personally served with process, but the
applicable statute or rule did not meet the constitutional requirements of notice,
much less require personal service. In either event, the constitutional requirements of notice have not been satisfied. See Mullane, 339 U.S. 306; Wuchter v.
Pizzutti, 276 U.S. 13 (1928). See also TEX. R. CIV. P. 124. But the question of
whether notice to the defendant is constitutionally adequate goes to the merits of
whether the defendant's attack on jurisdiction on grounds of defective service
ought to be granted, not to whether he has been afforded procedural due process
in making the attack.
4··TEX. R. CIV. P. 122.
4.9In federal practice, under Fed. R. Civ. P. 12(b)(2), (4) and (5), respectively, a
defendant may file a motion to dismiss on ground of a "lack ofjurisdiction over
the person," "insufficiency of process" or "insufficiency of service of process."
An insufficiency of process or service of process is clearly a curable defect. Accordingly, the majority view is that the trial court should not dismiss the action
upon sustaining the motion, rather the plaintiff should be given an opportunity to
attempt to properly effect service on the defendant. E.g., Grammenos v. Lemos,
457 F.2d 1067 (2d Cir. 1972) (holding that dismissal for service on adult woman
working in a defendant's apartment, but not residing therein, was erroneous).
But even where the plaintiff has failed to allege facts showing that the defendant is
amenable to jurisdiction, the courts have held that dismissal is improper without
first giving the plaintiff an opportunity to replead. Vohees v. Fischer & Krecke,
697 F.2d 574 (4th Cir. 1983);Jim Fox Enter., 664 F.2d 63; Stern v. Beer, 200 F.2d
794 (6th Cir. 1952); Miller v. Cousins Properties, Inc., 378 F. Supp. 711 (D. Vt.
1974); Thompson v. Trent Maritime Co., 149 F. Supp. 468 (E.D. Pa. 1957); see
Haley v. Simmons, 529 F.2d 78 (8th Cir. 1976). See generally J. MOORE &J. LUCAS,
2A MOORE'S FEDERAL PRACTICE ~~ 12.07 [2.-2], [2.-4] (1938).
Note that, unlike the Texas practice, the defendant does not make a general
appearance by objecting to the insufficiency of process or service of process.
Thus, the defendant is entitled to be reserved in a proper manner. See, e.g., Grammenos, 457 F.2d 1067. Compare TEX. R. CIV. P. 122.
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point is sustained on appeal-and a new trial will be
ordered.490
IV.
JURISDICTION OVER DEFENDANTS IN FEDERAL COURTS:
FEDERAL VERSUS STATE LAw
Whether state law places any limit on a federal court in attempting to exercise jurisdiction over a defendant has been
viewed, at least by some courts, as depending on whether subject matter jurisdiction is based on diversity of citizenship or a
federal question. Almost all of the cases wrestling with the
question of whether state or federal law governs the amenability of a defendant to jurisdiction of a federal court have involved defendants who are nonresidents of the forum state.
This is probably due to the fact that state courts do not hesitate
to exercise jurisdiction over their own domiciliaries, even if
served outside the borders of the state. And since domicile has
been upheld as a constitutionally valid basis for a state court
exercise of jurisdiction over a defendant,491 the question of
state law limits on the federal courts is usually absent. 492 Consideration of this matter, therefore, will be limited to cases involving nonresidents of the forum state. As discussed below,
the analysis takes into account whether an applicable federal
long-arm statute exists; whether subject matter jurisdiction is
based solely on diversity of citizenship, as opposed to federal
question, pendent or admirality jurisdiction; and whether the
defendant, or his agent for purposes of service of process, is
served while in the forum state.
'OOUnlike an objection to process or service of process made in a pre-answer
notion under Fed. R. Civ. P. 12(b)(4) or (5) in a federal district court, if the defendant successfully attacks a federal court default judgment for non-compliance
with the technical requirements for service of process, the district court is deprived of personal jurisdiction over the defendant, notwithstanding that the defendant is amenable to jurisdiction. See supra note 489. In such event, the
judgment must be vacated, Leab v. Streit, 584 F. Supp. 748 (S.D. N.Y. 1984), and
the plaintiff will have to refile his suit and attempt to serve the defendant properly.
Compare Tex. R. Civ. P. 124 ("Where the judgment is reversed on appeal or writ of
error for the want of service, or because of a defective service of process, no new
citation shall be issued or served, but the defendant shall be presumed to have
entered his appearance to the term of the court at which the mandate shall be
filed.").
'91 Milliken, 311 U.S. 457.
490But query whether Milliken is still valid after Shaffer, 433 U.S. 186. See supra
notes 468-71.
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PERSONAL JURISDICTION
579
Utilizing a Federal Long-Arm Statute Under Federal Rule of
Civil Procedure 4(e): Non-Diversity and Diversity Cases
A federal court's constitutional jurisdiction is coextensive
with the boundaries of the United States, and fifth amendment
due process requires only, at most, that a nonresident defendant have minimum contacts with the United States and that the
claim against him arise out of or relate to these contacts such
that an exercise ofjurisdiction over him is fair. So, for example, where nationwide493 or world-wide494 service of process is
authorized by a federal statute, the fifth amendment constitutional standard applies-not state law and the fourteenth
amendment. 495 Where the fifth, rather than the fourteenth,
amendment governs, the test has sometimes been referred to
as the "national" or "aggregate" contacts approach. 496 Under
this approach the defendant's contacts in the United States,
rather than the forum state, are analyzed to determine whether
an exercise of jurisdiction by a federal court meets the minimum due process requirements of fundamental fairness. The
Second Circuit, in taking what seems to be a reasonable approach, has analyzed the defendant's contacts in light of International Shoe and its progeny, but has substituted "United
States" for "forum state."497 Admittedly, these cases usually
<91E.g., 15 U.S.C. §§ 21(f) (antitrust suits), 77v (1970) (securities violations
suits); 28 U.S.C. § 2361 (1976) (statutory interpleader actions). See also examples
in infra note 494.
<94 E.g., 28 U.S.C. §§ 1330(b), 1608 (1976) (personal jurisdiction over foreign
states sued under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330,
1332(a)(2)-(a)(4), 1391(f), 1441(d), 1602-11 (1976».
49SF.T.C. v. Jim Walter Corp., 651 F.2d 251, 256 (5th Cir. 1981) (nationwide
service of process under the Federal Trade Commission Act, 15 U.S.C. § 49
(1976»; Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d
300,314 (2d Cir. 1981) ("... the relevant area in delineating contacts is the entire
United States, not merely New York."), cert. denied, 454 U.S. 1148 (1982); Soltex
Polymer Corp. v. Fortex Indus., 590 F. Supp. 1453, 1458 (E.D. N.Y. 1984) (nation-wide service of process under 18 U.S.C. § 1965(d) (1976) in suit under the
Racketeer Influenced & Corrupt Organizations Act, 18 U.S.C. §§ 1961-76); Clement v. Pehar, 575 F. Supp. 436, 438 (N.D. Ga. 1984); Robbins v. B.W. Blaushild
Motors, Inc. 559 F. Supp. 1 (N.D. Ill. 1981) (nation-wide service of process under
the Employee Retirement Income Security Act, 29 U.S.C. § 1132(e)(2) (1976».
<ooHandley v. Indiana & Michigan Elec. Co., 732 F.2d 1265 (6th Cir. 1984).
While such cases frequently involve alien corporate defendants, i.e., those incorporated outside the United States, it certainly is not so limited. ld.; see Note, Alien
Corporations and Aggregate Contacts: A Genuinely Federal Jurisdictional Standard, 95
HARv. L. REV. 470, 475-76 (1981).
<9'Texas Trading & Milling Corp., 647 F.2d at 314-15; Bamford v. Hobbs, 569 F.
Supp. 160, 165 (S.D. Tex. 1983) ("the same concept oflimitation on sovereignty
underlies restrictions on in personam jurisdiction under both the fifth and four-
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involve alien or foreign state defendants, so the defendant's
status is truly analogous to the nonresident defendant in state
court cases. But where the defendant is a citizen or domiciliary
of the United States, that fact alone will usually represent a relevant contact, and may even be dispositive of the constitutional
jurisdictional question. 498
If the particular federal forum is inconvenient for the defendant, he should be relegated to seeking to have the suit transferred to another federal court on a change of venue motion,
rather than a dismissal on jurisdictional grounds. This approach has the advantage of accommodating the defendant's
due process rights in the context of an alternative federal forum, while affording the trial court flexibility in determining
whether, in light of the interests and concerns of all the parties
and witnesses, a more convenient federal forum exists. The
United States Supreme Court has not addressed the question
of the constitutional limits of the federal courts' power to exercise long-arm jurisdiction. While most intermediate and lower
federal courts that have faced the issue have settled on a test
analogous to that of International Shoe,499 at least one court of
appeals has suggested that International Shoe is inapplicable:
State long-arms must fit into International Shoe; there
is no justification for forcing the federal feet into a
glass slipper too narrow and fragile to support the
weight of the policies underlying the statutory privilege of w<?rldwide service. soo
It should be noted that while most federal long-arm statutes
involve federal causes of action,sol Congress may validly enact
teenth amendments; only the sovereign entities differ."). It had been the traditional thought that due process restrictions on a state court's exercise of
jurisdiction were based in part on the necessity of each state to respect the other
states' coequal sovereignty in a federal system. This idea was resurrected in
World-Wide Volkswagon Corp. v. Woodson. 444 U.S. 286, 291-92. However,
the idea was soon discredited in Insurance Corp. of Ireland v. Compagnie des
Bauxites de Guinee. 456 U.S. 694, 702 ("The personal jurisdiction requirement
recognizes and protects an individual liberty interest. It represents a restriction
on judicial power not as a matter of sovereignty, but as a matter of individual
liberty."); Phillips Petroleum Co., 105 S. Ct. 2965. See also supra notes 158-74.
498See Blackmer, 284 U.S. 421 (U.S. citizen in Europe validly subjected to federal
long-arm subpoena statute). Cf Milliken, 311 U.S. 457 (state court does not offend due process in exercise of extraterritorial service on defendant domiciled in
forum state). But if. Shaffer, 433 U.S. 186; supra notes 468-71.
.....326 U.S. 310.
-Black v. Acme Markets, 564 F.2d 681, 686 n.8 (5th Cir. 1977).
""See supra notes 450-51.
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long-arm statutes for use in diversity cases,502 and, indeed, has
done so for statutory interpleader. 50s
Where pendent subject matter jurisdiction exists over state
law claims joined with federal question claims, and a federal
long-arm statute provides for nationwide service of process
over the latter, the courts are split over the question of whether
long-arm jurisdiction can be extended to the state law claims as
well under a theory of pendent personal jurisdiction, but the
weight of authority supports it.504
B.
Utilizing a State Long-Arm Statute Under Federal Rule of Civil
Procedure 4(e): Non-Diversity Cases
The circuits are divided, however, on the questions of
whether the fifth, as opposed to the fourteenth, amendment applies to a suit on a federal cause of action505 where long-arm
jurisdiction is predicated on a long-arm statute or rule of the
forum state, rather than a federal statute expressly authorizing
nationwide or worldwide service of process. The Sixth Circuit,
for example, recently opted for the fifth amendment approach.
It adopted the reasoning of the dissent in a case from another
circuit:
When a court asserts personal jurisdiction over a foreign defendant on the basis of a state law claim, it
must ensure that the forum state does not unduly encroach on a sister state's interest. When a court, state
5O'Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 442 (1946).
supra note 493.
504 International Controls Corp. v. Vesco, 593 F.2d 166 (2d Cir. 1979); Schwartz
v. Eaton, 264 F.2d 195 (2d Cir. 1959); Taylor v. Bear Steams & Co., 572 F. Supp.
667 (N.D. Ga. 1983); Bamford v. Hobbs, 569 F. Supp. 160 (S.D. Tex. 1983); Klepper Krop, Inc. v. Hanford, 411 F. Supp. 276 (D. Neb. 1976); Getter v. R.G. Dickinson & Co., 366 F. Supp. 559 (S.D. Iowa 1973); Allen Organ Co. v. North
American Rockwell Corp., 363 F. Supp. 1117 (E.D. Pa. 1973); Puma v. Marriott,
294 F. Supp. 1116 (D. Del. 1969); Townsend Corp. of America v. Davidson, 222
F. Supp. 1 (D. NJ. 1963).
Contra Ratner v. Scientific Resources Corp., 53 F.R.D. 325 (S.D. Fla. 1971); International Ladies' Garment Workers Union v. Shields & Co., 209 F. Supp. 145
(S.D. N.Y. 1962); Lasch v. Antkies, 161 F. Supp. 851 (E.D. Pa. 1958); ]aypen
Holdings v. Bellanca Corp., 22 F.R.D. 190 (D. NJ. 1958); Schwartz v. Bowman,
156 F. Supp. 361 (S.D. N.Y. 1957).
5O'The cases discussed in this section involved attempted exercises of federal
question or pendent subject matterjurisdiction. There is a dearth of authority on
this subject involving admiralty cases. The Second Circuit, for example, has yet to
articulate an answer. See Aquascutum of London, Inc. v. S.S. American Champion, 426 F.2d 205, 211 nA (2d Cir. 1970). See also Gkiafis v. S.S. Yionsonas, 342
F.2d 546, 549 n.4 (4th Cir. 1965).
50' See
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or federal, adjudicates a federal claim, the federalism
issue is of no relevance, for the court determines the
parties' rights and liabilities under uniform, national
law. No state intrudes on another's interests. The
only relevant interest is the national one. Thus the
applicable constitutional due process provision should
not be the fourteenth amendment, but the fifth
amendment. 506
The Third Circuit view, on the other hand, is that, in the absence of a federal long-arm statute, Rule 4(e) limits a federal
court's exercise ofjurisdiction to that of the state courts of the
forum, including the fourteenth amendment limits on the state
courts. 507 The commentators are divided on the issue. 508 The
Sixth Circuit also recognizes that Rule 4(e) provides for longarm jurisdiction only if it is available under a federal statute or
the law of the forum state. Where the Sixth and Third Circuits
part company, however, is on the issue of whether the fifth or
fourteenth amendment governs the constitutional limitations
on the federal court's exercise of state long-arm law. Under
the Third Circuit view, a federal court may utilize a state longarm law only if a state court may do so. Since the state court is
governed by the fourteenth amendment in applying its longarm law, so also is the federal court. The fourteenth amendment is applicable to the federal court not because it directly
llOOHadley v. Indiana & Mich. Elec. Co., 732 F.2d 1265, 1269 (6th Cir. 1984)
(quoting DeJames v. Magnificance Carriers, 654 F.2d 280, 292 (3d Cir. 1981)
(Gibbons, j., dissenting». While Judge Gibbons' analysis is sound as regards the
constitutional limits of a federal court's exercise ofjurisdiction over defendants,
this surely does not apply to state courts. While a state court must apply applica.
ble federal law according to federal standards under the supremacy clause, the
constitutional limits of its exercise of jurisdiction is governed by the fourteenth
amendment, regardless of whether the claims sued on are based on federal or
state law. And, of course, the limits of the fourteenth and fifth amendments are
not coterminous.
..,.Defames, 654 F.2d 280. Accord Max Daetwyler Corp. v. Meyer, 762 F.2d 290
(3d Cir.), cert. denied, 106 S. Ct. 383 (1985) (patent infringement; German defendant).
Apparently, this approach is followed in the District of Columbia Circuit. See
Reuben v. United States, 750 F.2d 1039, 1049-52 (D.C. Cir. 1984) (Federal Tort
Claims Act suit against U.s. joined with constitutional claims against individual
defendants).
"'·Compare 4 C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE § 1075
at 177 (1985 Supp.) (supports Third Circuit view) with A. Von Mehren & D.
Troutman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 HARV. L. REV. 1121,
1123 n.6 (1966) ("in enforcement of claims arising under federal law, there is
little reason for a federal court to refuse to proceed merely because the courts of
the state in which it is sitting would not claim jurisdiction.").
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applies to federal courts-it doesn't; the fifth amendment
does-but because as a matter of statutory construction, Rule
4(e) requires that it apply.509 The Sixth Circuit differs in that
once it has been determined that the state long-arm law applies
under state law, the constitutionality of its application is limited
only by the fifth amendment. Obviously, different results
might obtain depending, for example, on whether the defendant had sufficient minimum contacts in the forum state, as opposed to only in the United States. Surely, the Sixth Circuit
view is incorrect, since this approach flies in the face of the literallanguage of Rule 4(e).
Until recently, the Fifth Circuit view was a muddle. AsJudge
Gee so aptly put it in one case: "Like a Tower of Babel, our
post-1963 pronouncements spoke in irreconcilable voices."510
One view, which is similar to the Sixth Circuit, was represented
by Lapeyrouse v. Texaco, Inc. 511 The other view, which is similar
to the Third Circuit view, is represented by Burstein v. State Bar
of California. 51? In Lapeyrouse, a suit brought in Texas, the federal court held that the sole test of amenability to jurisdiction in
a federal question case is whether the exercise of jurisdiction
satisfies the due process clause of the fifth amendment. The
court was of the view that the Texas long-arm statute was "irrelevant" and had "no bearing" on the determination of
whether the defendant was amenable to jurisdiction. 51s But at
the same time, the court held that the Texas statute was "controlling as to the question of whether service of process was
properly effected so as to permit the assertion of that jurisdiction."514 This approach is dubious, to say the least, in view of
the fact that when a state long-arm law is utilized, Rule 4(e)
requires that the court adhere to not only the circumstances
under which long-arm jurisdiction may be exercised under
-A.ccord DeMelo v. Touche Marine, Inc., 711 F.2d 1260 (5th Cir. 1988); Burstein v. State Bar, 698 F.2d 511 (5th Cir. 1982).
"oDeMelo, 711 F.2d at 1268. Judge Gee quotes from the Bible in Genesis 11:7
(New Jerusalem): "Come, let us go down and confuse their language on the spot
so that they can no longer understand one another." 711 F.2d at 1268 n.8.
'''698 F.2d 581 (5th Cir. 1982); Terry v. Raymond Int'l, Inc., 658 F.2d 898 (5th
Cir. 1981); Volkswagon Interamericana, S.A. v. Rohlsen, 860 F.2d 487, 440 n.8
(1st Cir. 1966), cert. denied, 885 U.S. 919 (1966); Lone Star Package Car Co. v.
Baltimore & O.R. Co., 212 F.2d 147 (5th Cir. 1954).
'''698 F.2d 511 (5th Cir. 1982). A.ccord DeMelo, 711 F.2d 1260; see Familia de
Boom v. Arosa Mercantil, S.A., 629 F.2d 11M (5th Cir. 1980), cert. denied, 451 U.S.
1008 (1981).
•,./d. at 585.
•,./d. at 586.
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state law, but also the manner of service prescribed by the state
law.
In Burstein, the court held:
The clear import of the "under the circumstances"
language, at least where the assertion of jurisdiction
and not just the service of process depends on the
state statute, is that a federal court, even in a federal
question case, can use a state long-arm statute only to
reach those parties whom a court of the state could
also reach under it. 515
In view of the fact that the court in Burstein held that the state
law long-arm limits must be interpreted as though the case had
been brought in a state court, it naturally followed that it also
held that the fourteenth amendment due process limits govern,
not because the fourteenth amendment requires it, but because
of Rule 4(e).516 Perhaps, it should be noted that notwithstanding the need to evaluate the fourteenth amendment requirements due to Rule 4(e), the fifth amendment due process
requirements ultimately always apply to any exercise of jurisdiction by a federal court. But whatever differences exist between the two due process clauses, when they do exist, the
fourteenth amendment is always more restrictive. Thus if it is
satisfied, there is no need to also analyze the constitutional
question ofjurisdiction in light of the fifth amendment. 517
In George v. Omni Capital International, Ltd. ,518 the Fifth Circuit,
sitting en bane, silenced the voices on the Tower of Babel,
adopted the reasoning of the Burstein 519 decision and overruled
Lapeyrouse. 52o
515
693 F.2d at 514. Accord DeMelo, 711 F.2d at 1266. See also Time, Inc., v. Manning, 366 F.2d 690 (5th Gir. 1966) (subject matter jurisdiction of copyright infringement action existed on basis of federal question claims, 28 U.S.G. § 1338
(1976), and diversity of citizenship).
,6
•
693 F.2d 511, 517 n.ll. Accord DeMelo, 711 F.2d at 1272 n.16 ("Our decision
that personal jurisdiction is appropriate under the long arm statute and the fourteenth amendment, though incorporating a constitutional issue, is nevertheless a
statutory decision. It is required by Rule 4(e)." [d. See also Foster, supra note 3.
617See DeMelo, 711 F.2d at 1272 n.16.
61·795 F.2d 415 (5th Gir. 1986) (en bane) (9-6 decision).
OI9See supra text accompanying notes 515-16.
•2°693 F.2d 581. The court also overruled Terry v. Raymond Int'l, Inc., 658
F.2d 398 (5th Gir. 1981).
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C. Utilizing a State Long-Arm Statute Under Federal Rule of Civil.
Procedure 4(e): Diversity Cases
It is well settled-even in the Fifth Circuit521 -that, in the
absence of a federal long-arm statute, a defendant who is a
nonresident of the forum state and is served out of state is amenable to the jurisdiction of a federal court in a diversity case
only to the extent permitted a state court in the state where the
federal court sits. 522 Rule 4(e) provides that service may be
made on a defendant outside the forum state "under the circumstances and in the manner prescribed" by the law of the
forum state. The "under the circumstances" requirement
means that the defendant must: 1) be within the reach of the
state long-arm law-a question governed by state law-and
2) the exercise ofjurisdiction must comport with the due process requirements of the fourteenth amendment. 523 The "in
the manner" requirement means that the means or method of
service of process must comply with state law requirements,
which, of course, must satisfy minimum fourteenth amendment
standards of fair notice.
This view is sound. The issue is not whether the federal
courts have less interest in applying a uniform federal rule of
jurisdiction over defendants when no federal claims are involved. While this notion has some appeal, it has been implicitly rejected by the Second Circuit: "Despite contrary
521 Thompson v. Chrysler Motors Corp.• 755 F.2d 1162 (5th Cir. 1985); DJ. Inv.
v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542 (5th Cir. 1985);
Brown v. Flowers Indus., 688 F.2d 328 (5th Cir. 1982); Terry, 658 F.2d 398; GoldKist v. Baskin-Robbins Ice Cream Co., 623 F.2d 375 (5th Cir. 1980).
'22Mountaire Feeds v. Argo Impex, S.A., 677 F.2d 651 (8th Cir. 1982); Donahue
v. Far Eastern Air Transp. Corp., 652 F.2d 1032 (D.C. Cir. 1981); Amba Mktg.
Sys. v.Jobar Int'l, 551 F.2d 784 (9th Cir. 1977); Davis H. Elliot Co. v. Caribbean
Util. Co., 513 F.2d 1176 (6th Cir. 1975); Quarles v. Fuqua Indus., 504 F.2d 1358
(10th Cir. 1974); Pujol v. United States Life Ins. Co., 396 F.2d 430 (lst Cir. 1968);
Arrowsmith v. United Press Int'l, 320 F.2d 219 (2d Cir. 1963); Westcott-Alexander v. Dailey, 264 F.2d 853 (4th Cir. 1959); Partin v. Michaels Art Bronze Co., 202
F.2d 541 (3rd Cir. 1953).
The Supreme Court has not addressed this question. In Hanna v. Plumer, 380
U.S. 460 (1965), a diversity suit, the Court held that service of process under
federal Rule 4(d)(l) on a resident defendant by serving his wife at their home in
the forum state was valid. While the Court held that Erie did not require the utilization of the forum state's service rule, the issue of amenability to jurisdiction was
not present. Moreover, the case did not even involve long-arm jurisdiction. National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311 (1964), also a diversity case,
did involve long-arm jurisdiction, but, again, amenability to jurisdiction was not
an issue, rather only a construction of federal Rule 4(d)(3).
"'Thompson, 755 F.2d 1162; DJ. Invest., 754 F.2d 542.
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intimations as to our position. . . , we fully concede that the
constitutional doctrine announced in Erie R.R. v. Tompkins . ..
would not prevent Congress or its rule-making delegate from
authorizing a district court to assume jurisdiction over a foreign corporation in an ordinary diversity case although the
state court would not."524 Instead, the correct reason has been
aptly articulated by Judge Gee in writing for a Fifth Circuit
panel in Burstein v. State Bar of California,525 which is set out in
the text above. 526 In other words, in the absence of a federal
long-arm statute, if a defendant is served outside the state in
which the federal court sits and the "bulge" service provisions
of Rule 4(f) are not applicable,527 Rule 4(e) and (f), read together, clearly mean that the defendant can be subjected to the
court's jurisdiction only "under the circumstances and in the
manner prescribed" by the law of the forum state. And there is
nothing in Rule 4 which remotely suggests that such limits of
jurisdiction over the defendant are affected or altered by the
fact that the court may be exercising diversity jurisdiction, federal question jurisdiction or any other category of subject matter jurisdiction. The knottier problem, previously discussed,528
is whether, the fourteenth, as well as fifth, amendment applies
when a federal diversity court exercises jurisdiction under Rule
4(e) in reliance on a state long-arm statute or rule. If the
phrase "under the circumstances" in Rule 4(e) means that the
federal court can use the state court "only to reach those parties who a court in the states could also reach under it,"529_
and we believe it does-then the fourteenth amendment limits
must be respected. In interpreting the fourteenth amendment,
however, the federal court is not bound by the decisions of the
forum state courts, since the issue is to be determined by federal standards. 5 !Jo
'''Arrowsmith v. United Press Int'l, 320 F.2d 219, 266 (2d Cir. 1963).
'''693 F.2d at 514; accord DeMelo, 7I I F.2d at 1266..
"·See supra note 515 and accompanying text.
"7 See infra notes 559-68 and accompanying text.
"·See supra notes 505-20 and accompanying text.
''''Burstein, 693 F.2d at 514; DeMelo, 711 F.2d at 1266; see Insurance Corp. of Ireland, 456 U.S. 694, 713 (Powell, J., concurring); see also supra note 497.
""Lakeside Bridge & Steel v. Mountain State Constr., 597 F.2d 596 (7th Cir.
1979), cert. denied, 445 U.S. 907 (1980) (White,J. dissenting).
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D.
PERSONAL JURISDICTION
587
Utilizing Federal Rule of Civil Procedure 4(j): Service on a
Nonresident Defendant (or His Agent) in the Forum State
The leading case on jurisdictional choice on law in the federal courts in diversity cases is Arrowsmith v. United Press International. 5!H The plaintiff filed a libel action in the Vermont
district court against UPI, a nonresident of Vermont. The defendant was served under Rule 4(d)(3) through its employee in
Vermont. The court correctly held that Rule 4(d)(3) indicates
only the manner in which service may be made on a foreign
corporation. It does not purport to speak to the circumstances
under which the defendant is amenable to the court's jurisdiction. In other words, it does not tell when the corporation is
subject to service of process. It is also true, and no one disputed the fact, that no federal long-arm statute was available.
But where the court lost its compass was when it said that there
was an "absence of direction" by the federal rules regarding
the question of whether the defendant was amenable to the jurisdiction of the district court. 532
The person served in Arrowsmith was the defendant's sole employee in Vermont. Surely, she was the defendant's "managing
agent" in Vermont within the meaning of Rule 4(d)(3). Not
only was she the only employee in Vermont and the manager of
UPI's Montpelier news bureau, she was "engaged full time in
defendant's main business activities, to wit, those of discovering and processing the news of this entire state and region and
then distributing such news and others collected by United to
the various outlets which the defendant serves in this state."S33
As Professor Moore has suggested, "[t]he term 'a managing or
general agent' apparently refers to a person of authority and
responsibility in the organization's operation in the place where
service is made."534 The only remaining determination to be
"'320 F.2d 219 (2d Cir. 1963).
"·320 F.2d at 226.
For general criticism of the Arrowsmith case, see J. MOORE, B. RINGLE Be J.
WICKER, lA MOORE'S FEDERAL PRACTICE ~ 0.168 [4.-3] n.13 (1985);J. MOORE, W.
TAGGART, A. VESTAL Be J. WICKER, lA (Part 2) MOORE'S FEDERAL PRACTICE ~
0.317[5] (1985).
·"320 F.2d at 241 (Clark, J., dissenting). See Terry, 658 F.2d 398 (Service of
process was made on defendant's sole employee in forum state, but court avoided
Issue of whether he was "a managing agent", since it found service valid under
state law via former Rule 4(d)(7) (amended by FED. R. CIV. P. 4(c)(2)(C)(i))).
....J. MOORE,J. LUCAS, H. FINK Be C. THOMPSON, 2 MOORE'S FEDERAL PRACTICE ~
4.22[2] n.5 (1986).
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made then is whether an exercise of jurisdiction is consistent
with due process. 535
But it is Rule 4(f) that provides the essential guidance that
the majority in Arrowsmith thought was lacking. Rule 4(f) provides that original process may be served "anywhere within the
territorial limits of the state in which the district court is held,
and, when authorized by a statute of the United States or by
these rules, beyond the territorial limits of that state."536
Clearly, Rule 4(f) determines the amenability question if the
defendant is served in the state: the federal court has adjudicatory power over the defendant, subject only to the limits of due
process. If the alleged agent of a defendant is served in the
forum state, then the only other question, other than the constitutional one, is whether the person is an "agent" within the
meaning of Rule 4(d) (1) or (d) (3), which is a matter of statutory
construction to be determined solely by federallaw. 537
In]im Fox Enterprises, Inc. v. Air France,538 a Fifth Circuit case,
the plaintiff served the defendant Air France pursuant to the
general Texas long-arm statute. 539 On the basis that Air
France did substantial business in Texas to the point that it had
contacts "galore,"54o the court held that an exercise ofjurisdiction over it would not offend due process. 54 ) The court initially held that jurisdiction based on the Texas long-arm statute
was lacking, because it thought the statute required a nexus between the cause of action and the defendant's contacts with
Texas. 542 The plaintiff conceded that its claim was unrelated to
'''See Lone Star Package Car Co., 212 F.2d 147, 152 n.53.
"·Fed. R. Civ. P. 4(1).
... See National Equip. Renta~ Ltd., 375 U.S. 311. And see Riverbank Laboratories
v. Hardwood Prod. Corp., 350 U.S. 1003 (1956) (per curiam).
"'664 F.2d 63, withdrawn in part, 705 F.2d 738 (5th Cir. 1983). See also supra
notes 315-17 and accompanying text.
"·TEX. CIV. PRACTICE & REMEDIES CODE §§ 17.041-.045.
...·664 F.2d at 64. "To judge by Air France's own admissions, the airline appears to do a thriving business in Texas .... For the period of 1975 through
1980, Air France reaped gross receipts from passenger ticket sales in Texas in
excess of $59,000,000." [d. at 65.
"'705 F.2d at 740 n.4. Mter the decision of the United States Supreme Court
in Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, which elucidated the rule laid down in Perkins v. Benquet Consolidated Mining Co., 342 U.S.
437, the trial court, consistent with due process, could not have asserted "general
jurisdiction" over the defendant. Recall that a valid exercise of "general jurisdiction" can include claims totally unrelated to the defendant's contacts in the forum
state. See supra notes 191-200 and accompanying text.
...·Judge Brown characterized such a requirement as "anachronistic but made-in
Texas statutory provision." Jim Fox Enter., 664 F.2d at 64.
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Air France's business in Texas, so the court initially held that
long-arm jurisdiction was unavailable under the Texas statute.
But rather than affirming the trial court's order of dismissal,
the court of appeals ordered the case remanded to allow the
plaintiff to attempt to effectuate service on Air France under
Rule 4(d)(3). Subsequently, the Texas Supreme Court handed
down its decision in Hall v. Helicopteros Nacionales de Columbia,
S.A. ("Helicol"),543 in which it held that the nexus requirement
was necessary only if demanded by the ultimate test of due process. 544 On rehearing in jim Fox Enterprises, in response to
Helicopteros, the Fifth Circuit panel withdrew part of its previous
decision and modified it to permit the plaintiff to serve Air
France under Rule 4(d)(3) or, if it desired, under the Texas
long-arm statute. 545
Most of the attention in thejim Fox Enterprises case, of course,
focused on the question of the nexus requirement in the Texas
statute. However, the court made it clear that while it adhered
to the Arrowsmith view that Rule 4(d)(3) is only a procedural
method of service of process and does not supply the authority
for a federal court to exercise jurisdiction over a defendant, the
court held: "Rule 4(d)(3), however, establishes a purely federal
means of service of process upon a domestic or foreign corporation. A party may serve an officer, a managing or general agent
of the corporation, subject only to the restrictions of Due Process."546 "Rule 4(f), Fed. R. Civ. P. expressly permits service
anywhere within the state in which the District Court sits;"547
moreover, federal, not state standards define who such agents
are ...."548
'''638 S.W.2d 870 (Tex. 1982).
'''The Helicopteros case experienced a tortuous route in the Texas Supreme
Court. Its initial decision, Helicopteros (1),25 Tex. Sup. Ct.]. 190 (Feb. 24, 1982),
was withdrawn on rehearing and substituted by Helicopteros (II), 638 S.W.2d 870
(Tex. 1982), which was then reversed by the United States Supreme Court on
constitutional grounds in Helicopteros (Ill), 466 U.S. 408 (1984). In response to
the reversal, the opinion in Helicopteros (II) was withdrawn by Helicopteros (IV), 677
S.W.2d 19 (Tex. 1984), in which the Texas Supreme Court granted the defendant's special appearance and ordered the case dismissed for lack of jurisdiction
over the defendant.
'.... 705 F.2d at 741.
"uJim Fox Enter., 664 F.2d at 64.
"7Id. at 64 n.5.
"·705 F.2d at 741 n.8 (citing Washington v. Norton Mfg., Inc., 588 F.2d 441,
444 (5th Cir. 1979), cert. denied, 442 U.S. 942 (1979). Cj National Equip. Rental,
375 U.S. 311 (In a diversity case in New York the Supreme Court applied a federal
standard to define "agent" within the meaning of Rule 4(d)(1) where the defendants, in their contract with the plaintiff, appointed a New York agent who was not
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The authors believe that the clear implication of the Jim Fox
opinion is that where service is made on a nonresident defendant's alleged agent in Texas under Rule 4(d)(l) or (3), that the
defendant is amenable to the federal court's jurisdiction under
Rule 4(f), provided that the person or the entity served in
Texas in an "agent" within the meaning of Rule 4(d)(l) or
(3).549 The question is a matter of federal, not state, law. 550
Furthermore, when service is made on a defendant in the forum state under Rule 4(f) by serving his agent pursuant to
Rule 4(d)(l) or (3), the constitutional limits of the fifth, not the
fourteenth, amendment govern the due process requirements.
This is so without regard to whether the defendant is a resident
or nonresident of the forum state. Indeed, the Supreme Court
pointed out in Mississippi Publishing Co. v. Murphree 551 that Rule
4(f) "was adapted with particular reference to suits against a
foreign corporation having an agent to receive service of process resident in a district within the state other than that in
which the suit is brought."552 In Murphree the defendant had
consented to suit in the courts in Mississippi which include the
federal, as well as state, courts in the state. 5511 Although it is
true the Court held it was amenable to suit in the Mississippi
federal court because of this consent, a waiver theory was not
the sole basis of, nor indeed crucial to, the question of whether
personally known to the defendants to receive process. The agent mailed process
to the defendants after she was served, although she had not expressly agreed to
do so. The Court held that even if it were assumed that state law governed the
definition of "agent," no relevant concept of state law would have invalidated the
agency at issue in the case).
"·See Lone Star, 212 F.2d 147. In holding that in the absence of a federal statute,long-arm service on a nonresident defendant must follow state law, the court
in Burstein v. State Bar of Calif., distinguished Lone Star in language that lends
support to the statement in the text: "The crucial distinction between Lone Star
and this case is that Lone Star involved in-state service [on defendant's agent], and
thus came under rule 4(d) rather than 4(e). The Lone Star court held service
proper under rule 4(d)(3), which is completely independent of state law." The
court concluded that Lone Star was not inconsistent with the case before it. 693
F.2d 511 (5th Cir. 1982).
Professor Weintraub has remarked that the court in]im Fox used Rule 4(d)(3) as
a long-arm statute. Weintraub, supra note 400, at 16. The authors of this Article
disagree. The]im Fox Enter. opinion makes clear that it is Rule 4(f) that provided
for amenability for service in the forum state and that Rule 4(d)(3) merely provided a method for effecting service on the defendant's agent in the forum state.
''''Of course, Rule 4 allows, alternatively, service in accordance with state law
methods. In such case, the state law definition of "agent" would govern.
'" 326 U.S. 438.
"·ld. at 444. Of course, service under Rule 4(f) may also be made on the defendant's agent in the district of suit.
"'ld. at 443.
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Rule 49(f), on its own force, can be read as making a nonresident defendant amenable to the court's jurisdiction, provided
that he, or his agent, is served in the forum state. The Court
answered this question affirmatively. After stating that Congress could have validly enacted a federal long-arm statute in a
pure diversity case, the Court held: "Congress, having omitted
so to direct, the omission was supplied by Rule 4(f) of the
Rules of Civil procedure .... "554 The Court then held that the
foreign corporation was properly brought before the trial court
under Rule 4(d)(3) by service on its resident agent in
Mississippi. 555
Perhaps the ultimate test of whether service on a nonresident
defendant's "agent" in the forum state subjects the defendant
to jurisdiction under Rule 4(f), independent of state law, will
come where the agent is not a "managing" or "general" <:lgent
within the meaning of Rule 4(d)(l) or (3), but rather where the
agent is thrust on the defendant "by law" without any actual
appointment having been made within the meaning of 4(d)(1)
or (3), such as by a contract with the plaintiff or as a condition
to obtaining a license to do business in the forum state. Assume, for example, the plaintiff sues a nonresident for breach
of contract, the claim arises out of defendant's contacts in the
forum state, and the due process requirements are met. The
forum state has a statute which provides: "Any nonresident is
deemed to have appointed the Secretary of State as his agent
for service of process on any claim brought against him in a
court of competent jurisdiction in this state and which arises
out of his contacts in this State." The statute has a separate,
severable provision which has been construed by the state
supreme court as negating a defendant's amenability to jurisdiction in the state courts in a few types of contract disputes,
including the instant case. Is the defendant amenable to jurisdiction in a federal court of the forum state by service on the
Secretary of State? Is not the secretary of state an "agent" of
the defendant "appointed by law" within the meaning of Rule
4(d)(l) or (3)? Even if it is conceded that the term "agent" in
Rule 49d)(l) and (3) is defined by federal law, there is no rea'MId. at 443.
"'Id. The Court also held that Rule 4(f) was valid under the Rules Enabling Act,
28 U.S.C. § 2072 (1982), and not inconsistent with FED. R. CIV. P. 82, which provides, inter alia, that the civil rules may not be construed to extend or limit the
jurisdiction of the district courts. The term "jurisdiction" in Rule 82 refers only
to subject matter jurisdiction, not jurisdiction over parties.
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son why federal law may not adopt state law by reference. And,
in any event, does not Rule 4(c){2){C)(i) permit service to be
made in the manner provided by state law?556 Arguably, such a
construction of Rule 4 would nullify the provision of subdivision (e) respecting reliance on state long-arm statutes, but as
Judge Brown put it in]im Fox Equipment: 557 "We merely point
out that there is more than one way to skin a cat or, in this case,
a Fox, and that appellant perhaps can effectuate service by using the federal service of process of authority, Rule 4(d)(3)."558
E. Utilizing the Bulge Long-Arm of Federal Rule of Civil Procedure
4(/)
In addition to service of process in the forum state, Rule 4(f)
provides for a modest 100-mile long-arm to reach third-party
defendants pursuant to Rule 14, necessary parties under Rule
19, and persons required to respond to an order of commit.116 As a matter of Texas law, if the plaintilfrelies on the Texas general long-arm
statute, he must follow the service of process requirements ofthat statute and may
not use some other service provisions, such as TEX. R.CIV. P. 108. See Whitney,
500 S.W.2d 94. Thus when federal Rule 4(e) is used to assert long-armjurisdiction under the Texas statute, Texas Rule 108 may not be used, since under Federal Rule 4(e) state law must be followed both as to amenability and methods of
service requirements. Contra Bamford, 569 F. Supp. 160 (The authors of this Arti·
cle feel this decision is erroneous). Where a federal long arm statute is used
under federal Rule 4(e) and the statute does not prescribe the method of service
of process, service may be made by any applicable provision of federal Rule 4(d)
or, alternatively, in a manner proscribed by state law. FED. R. CIV. P. 4(c)(2)(C)(i).
For example, the service of process provision of either the Texas general longarm statute or Texas Rule 108 may be used in a federal suit against a corporation
under the Clayton Act. 15 U.S.C. § 22 (1982). Section 12 of the Clayton Act
permits nation-wide service of process but does not prescribe the mode of service.
However, to the extent that the state law relied on contains provisions that deal
with the circumstances in which it may be used (i.e., amenability), they must be
ignored, since the federal long-arm statute governs. Black v. Acme Markets, Inc.,
564 F.2d 681, 684 (5th Cir. 1977). This is so even where the process provisions
are an integral part of the state statute. But see Hartley v. Sioux City & New Orleans Barge Lines, Inc., 379 F.2d 354 (3d Cir. 1967). In Hartky, a Pennsylvania
statute was followed under former federal Rule 4(d)(7) (amended by Rule
4(c)(2)(C)(i». The statute provided for substituted service on the Secretary of the
Commonwealth "in any action arising within the Commonwealth." Without discussing the point, the court held that the quoted language ofthe statute must also
be satisfied. 379 F.2d at 357.
"7 See supra notes 538-50 and accompanying text.
""Jim Fox Enter., 664 F.2d at 65.
Prior to the 1963 amendment to Rule 4(e), substantial authority existed for subjecting a defendant to jurisdiction under Rule 4(1) by serving the resident agent
designated by state statute. E.g., Giffin v. Ensign, 234 F.2d 307 (3d Cir. 1956)
(automobile accident; service on nonresident driver through Secretary of State);
Andrus v. Younger Bros., 49 F. Supp. 499 (W.O. La. 1943) (similar); Oevier v.
George Cole Motor Co., 27 F. Supp. 978 (W.O. Va. 1939) (similar).
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ment for civil contempt. 559 This "bulge" service is, under the
better view, available without regard to whether the party
served is amenable to jurisdiction under the law of the forum
state or the state in which the service is made,560 and without
regard to whether or not the court is exercising diversity jurisdiction. 561 And since state law is irrelevant to the issue of amenability, it follows that the fifth, not fourteenth, amendment
due process limits governs. 562 In Coleman v. American Export Isbrandtsen Lines, Inc., 563 however, the Second Circuit took the
view that bulge service under Rule 4(f) is available only if the
state in which the party is served "has jurisdiction and, very
likely, only on persons within the class over whom it has chosen
to exercise it."564 The court then determined that jurisdiction
was valid since the party was amenable to suit in the state of
service and he had sufficient contacts in that state. The Second
Circuit view has been strongly criticized by the commentators.
Professor Moore points out that to follow the law of the state of
service requires adoption of the fiction that the suit, at least as
to the party served under the bulge provision, would be tried in
the court where service is made. 565 Professors Wright and
••9 FED. R. CIV. P. 4(0 Under Rule 4(0, the party served must be within the
United States.
-See Realco Serv., Inc. v. Holt, 479 F. Supp. 880, 885 (E.D. Pa. 1979).
See also J. MOORE, B. RINGLE &:]. WICKER, IA MOORE'S FEDERAL PRACTICE ~
0.168 [4.-3] (1986) (pointing out that ifan action is properly removed from a state
court to a federal district court and a party is within the bulge service provisions of
Rule 4(0, the federal court can acqUire personal jurisdiction over that party irrespective of whether the state court could have done so had the suit not been removed).
This does not mean, however, that Rule 4(0 bulge service is exclusive. If the
party is amenable to service under a state long-arm statute, then Rule 4(e) would
provide an alternative basis. Adams Dairy Co. v. National Dairy Prod. Corp., 293
F. Supp. 1164 (W.O. Mo. 1968); McKee v. Southern Ry., 50 F.R.D. 502 (N.D. Ga.
1970). Contra American Carpet Mills, Inc., v. Bartow Indus. Dev. Corp., 42 F.R.D.
I (N.D. Ga. 1967). (The authors of this Article feel this decision is erroneous).
Note that if Rule 4(0 is used, service must be in a manner prescribed by Rule
4(d)(I).(6); whereas under Rule 4(e), service under a state statute must be in the
manner prescribed by that statute. Note also that if bulge service is exercised
under Rule 4(0 and service is performed under Rule 4(d)(2), the law of the state
of service governs the manner in which it may be made.
...,See infra note 568.
...·In McGonigle v. Penn-Central Transp. Co., the court did not reach the question whether contacts outside the buldge area, but within the state of service,
would satisfy due process, since the third-party defendants had sufficient contacts
within the bulge area. 49 F.R.D. 58, 63 n.6 (D. Md. 1969).
...·405 F.2d 250 (2d Cir. 1968).
"""ld. at 252.
...·2J. MOORE,]. LUCAS, H. FINK &: C. THOMPSON, 2 MOORE'S FEDERAL PRACTICE
~ 4.25[7] 11.17 (1986).
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Miller maintain that: "If state law were deemed controlling in
these circumstances, the liberalizing purpose of the lOO-mile
provision would be subverted."566 Moreover, they argue that if
state law must be followed, it is illogical to refer to the law of
the state of service, rather than the forum state, and that the
law of the state of service is irrelevant. 567 The error committed
by the Second Circuit in Coleman is the same as that in Arrowsmith, that is, the view that in the absence of a federal long-arm
statute, Rule 4 only fixes the manner and scope of service, but
that it does not determine whether the persons served are subject to the jurisdiction of the federal court that served them.
To the contrary, amenability to jurisdiction is what the bulge
service provision of Rule 4(f) is all about. 568
-4 C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE § 1075 (1969).
56TId. at § 1127.
-Unfortunately, the Fifth Circuit cited Coleman, 405 F.2d 250, with approval in
Sprow v. Hartford Ins. Co., 594 F.2d 412 (5th Cir. 1979), but modified its rule.
The court held that Rule 4(f) applies when the party served has minimum contacts
with either the forum state or the bulge area. This approach seems just as illogical
as the Coleman rule. Of course, if service is made by utilizing a state long-arm
statute under Rule 4(e), then the defendant's contacts in the forum are relevant.
But regardless of whether Rule 4(e) or 4(f) is relied on, the nonforum law ofthe
state of service is irrelevant. But see McGonigle, 49 F.R.D. 58.
The opinion in Coleman, 405 F.2d 250, does not reveal the basis of federal subject matter jurisdiction in that case. The suit was by a longshoreman for personal
injuries sustained aboard the defendant's vessel while in the Hoboken, New
Jersey, harbor. Such an action is permitted under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b) (1982). While diversity of
citizenship may have been satisfied, it is clear that the substantive tort principles in
such suits are a matter of generalfederal common law, see Napoli v. Hellenic Lines,
536 F.2d 505 (2d Cir. 1976), although land-based, rather than traditional maritime, principles of negligence are to be followed. Gay v. Ocean Trans. & Trading,
546 F.2d 1233 (5th Cir. 1977). While a claim based on "general," as opposed to
federal statutory, maritime law does not "arise under" federal law for purposes of
federal question jurisdiction, Romero v. International Terminal Operating Co.,
358 U.S. 354 (1959), a claim based on federal "common law" (i.e., non-maritime,
judge-made federal law) does. Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
The Fifth Circuit has rejected the idea that § 905(b) of the Longshoreman's and
Harbor Workers' Compensation Act creates a federal statutory cause of action,
and accordingly has held that, in the absence of diversity, such a suit does not
"arise under" federal law for purposes of federal question jurisdiction. Parker v.
South Louisiana Contractors, Inc., 537 F.2d 113 (5th Cir. 1976), em. denied,430
U.S. 906 (1977). But this view may be incorrect. While the United States
Supreme Court has not addressed this question, there is language in a recent
opinion strongly sug~esting that an action under § 905(b) is a federal statutory
cause of action withm the federal question jurisdiction of the federal district
courts. See Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 165
(1981) (§ 905(b) provided a statutory negligence action). But whether an action
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595
CONCLUSION
A lot of constitutional water has passed under the in personam bridge since Professor Thode wrote his article. 569 The
authors of this Article have observed that the interpretation
given by the United States Supreme Court of the constitutional
limits on the exercise of personal jurisdiction has been a process of evolution. This process began with the concept of territorial jurisdiction and eventually evolved to a multiple rules
approach that is the by-product of the Court's sometimes groping attempt to articulate the meaning of fundamental fairness. 570 In turn, the Texas Supreme Court571 and the Fifth
Circuit572 have attempted to ply these uncharted constitutional
areas. Now we can only wait and see how the state and federal
courts in Texas will utilize the modified constitutional rules of
personal jurisdiction, as recently articulated by the high
Court. 573 Analysis of the application of these rules in Texas
state courts is confounded by the somewhat anomolous and
uncertain requirements of Texas state law. 574 In the meantime,
with the Kawasaki decision, the Texas Supreme Court has finally written an opinion which makes clear that Professor
Thode was right all along respecting the proper scope of a special appearance under Rule 120a of the Texas Rules of Civil
Procedure. 575 But we must also wait and see whether the validity of York v. Texas will be tested again,576 particularly as applied
in the context of a special appearance made for the first time
under § 905(b) is viewed as a federal common law or statutory cause of action,
federal question jurisdiction should exist.
Thus, presumably, the Second Circuit rule of Coleman regarding bulge service
under Rule 4(1) applies to non-diversity, as well as diversity cases. 405 F.2d 250.
But in Arrowsmith, the court's holding was expressly limited to diversity suits. 320
F.2d 219, 228 n.9. Moreover, the entire rationale of the holding was based on the
court's view as to the purposes and limits of diversity jurisdiction. It is curious, to
say the least, that the Arrowsmith rule was applied to Coleman, when in fact, the
claim in that case was a federal question claim. But as already expressed in this
Article, the reach of bulge service under Rule 4(1) does not depend on whether
subject matter jurisdiction is based on diversity or a federal question. See supra
note 561 and accompanying text.
06lI See supra note 1.
&70 See Thode, notes 3-248 and accompanying text.
m See supra notes 282.303 and accompanying text.
&7. See supra notes 304.50 and accompanying text.
&7S See supra notes 250.68 and accompanying text.
&74 See supra notes 353·406 and accompanying text.
m See supra notes 407·34 and accompanying text.
&76 See supra notes 459·90 and accompanying text.
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after a default judgment has been entered. 577 Finally, we can
only muse on the question whether the federal courts-espe·
dally the Second Circuit578-will reevaluate their views as to
whether Rule 4(f) of the Federal Rules of Civil Procedure pur·
ports to be an "amenability" provision respecting jurisdiction
over a defendant. 579
077 See supra notes 435-57 and accompanying text.
"·See Coleman, 405 F.2d 250.
"0 See supra notes 559-68 and accompanying text. See also supra notes 491-558
and accompanying text.
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