By Michael Hoenig - New York Law
Journal - March 10, 2014
On Feb. 25 the U.S. Supreme Court issued a unanimous opinion in
Walden v. Fiore1 dealing with
constitutional Due Process boundaries on a court's exercise of
personal jurisdiction over a litigant. The ruling concerns a
popular form of jurisdictional nexus that has been called by
various names—e.g., "specific jurisdiction," "longarm" or
"single-act" statute, "effects test"—all of which are intended
to distinguish this jurisdictional animal from the standard
"general," "doing business," "presence," or "all purpose"
jurisdiction test. Walden has potential to upset some
apple carts, to disturb existing or smug notions of in personam
jurisdiction and to revitalize jurisdictional challenges by
foreign defendants sued in a state where they had no or little
A "specific" or "case-linked" jurisdictional nexus depends on an
affiliation between the forum and the underlying controversy.
Thus, an activity or an occurrence that takes place in the forum
state may be subject to state court regulation for causes of
action arising out of the defendant's act within the
state—provided that constitutional due process requirements are
met. Walden expounds mightily on the limits of due
process. Its ruling, reasoning and clarifications arguably could
undo application of long-standing "longarm" statutes such as New
York's CPLR 302(a)1 and (a)3 in certain relatively common
scenarios, some products liability or warranty lawsuits against
foreign defendants among them.
In distinction to the "specific" or "longarm" form of
jurisdictional predicate, the "general" or "all purpose" type of
jurisdiction allows a court to adjudicate against a defendant
based on a forum connection unrelated to the underlying lawsuit.2
An example of such a jurisdictional predicate would be the
litigant's domicile within the forum state or a corporation's
continuous, systematic "presence" within the state. In such
"general jurisdiction" cases, the forum court can adjudicate
even regarding a defendant's acts that occurred outside the
state or even in a foreign country.
comes hard on the heels of the Supreme Court's Jan. 14 decision
in Daimler AG v. Bauman,3 a pivotal ruling
that a German company could not be subjected to "specific" or
"general" California jurisdiction for torts committed in
Argentina by defendant's Argentine subsidiary even though
defendant's U.S. subsidiary had some California contacts
unrelated to the Argentine atrocities. The court held that the
Due Process Clause precludes the exercise of jurisdiction since,
among other things, "California is not an all-purpose forum for
claims against Daimler."4 The foreign defendant,
quite simply, was not "at home" in California and, thus, was not
"subject to suit there on claims by foreign plaintiffs having
nothing to do with anything that occurred or had its principal
impact in California."5 The combination of Daimler
and Walden can be lethal jurisdictional obstacles, a kind
of one-two punch. Thus, lawyers are advised to study the new
Let's look at Walden a bit closer because it has
potential to destabilize as-yet-comfortable notions. The facts
are somewhat anomalous, but the lessons to be learned could
apply to some common scenarios. Walden (the defendant) was
working as a Drug Enforcement Agency (DEA) officer at the
Atlanta Airport. Fiore and Gipson (the plaintiffs) were
professional gamblers going from Puerto Rico to their Nevada
home with a layover in Atlanta. While there, Walden seized some
$97,000 in cash from plaintiffs believing it was related to drug
activities. Their protests in Atlanta were to no avail. They
were advised that the money would be returned if they gave
documentation that the cash was lawfully obtained. Walden
assisted in drafting a "probable cause" affidavit—one the
plaintiffs alleged was false—to support forfeiture of the money
and sent it to the U.S. Attorneys Office in Georgia. Eventually,
plaintiffs got their money back.
However, Fiore and Gipson sued the DEA agent in a Nevada federal
court alleging wrongful seizure of the cash and violation of
their constitutional rights. Walden moved to dismiss. The
district court granted the motion because Nevada jurisdiction
was lacking. The U.S. Court of Appeals for the Ninth Circuit
reversed, however, holding that Walden, though in Georgia,
"expressly aimed" his submission of the false affidavit at
Nevada with knowledge that it would affect persons with a
significant connection to Nevada. This amounted to application
of the "effects test" of specific jurisdiction which looks to
the effect caused in the forum state by an out-of-state actor.
Rehearing en banc was denied by the Ninth Circuit with eight
The Supreme Court reversed. It held that a Nevada court may not
exercise personal jurisdiction over Walden because of the
"contacts" of plaintiffs Fiore and Gipson with Nevada. It is the
defendant who must have the requisite "minimum contacts" with
the forum state in order to support specific jurisdiction over
him. The inquiry "focuses on the 'relationship among the
defendant, the forum and the litigation.'" The defendant's
suit-related conduct "must create a substantial connection with
the forum state." Two related aspects of this "necessary
relationship" are relevant. First, the relationship must arise
out of contacts that the "defendant himself" creates with the
forum state. Thus, "[p]ut simply, however significant the
plaintiff's contacts with the forum may be, those contacts
cannot be 'decisive in determining whether the defendant's due
process rights are violated.'"6
Second, the court's "minimum contacts" analysis looks to the
"defendant's contacts with the forum state itself, not the
defendant's contacts with persons who reside there." The
plaintiff "cannot be the only link between the defendant and the
forum." Rather, it is the "defendant's conduct that must form
the necessary connection with the forum state." Due process
"requires that a defendant be haled into court in a forum State
based on his own affiliation with the State, not based on the
'random, fortuitous, or attenuated' contacts he makes by
interacting with other persons affiliated with the State."7
Indeed, these same principles apply when intentional torts are
The defendant DEA agent lacked the requisite "minimal contacts"
with Nevada. No part of Walden's course of conduct occurred in
Nevada. The questioning and seizure of money occurred at the
Atlanta airport. The allegedly false probable cause affidavit
was drafted in Georgia. Walden never traveled to, conducted
activities within, contacted anyone in, or sent anything or
anyone to Nevada. "In short," said the court, "when viewed
through the proper lens—whether defendant's actions
connect him to the forum—petitioner formed no
jurisdictionally relevant contacts with Nevada."8 The
Ninth Circuit erred by shifting the "analytical focus" from
Walden's contacts with the forum to his contacts with the
plaintiffs. Rather than assessing defendant's own contacts with
Nevada, the court looked to Walden's knowledge of plaintiffs'
"strong forum connections." That knowledge was then coupled by
the Ninth Circuit with its conclusion that plaintiffs "suffered
foreseeable harm in Nevada" to satisfy the "minimum contacts"
This approach was wrong. A plaintiff's contacts with the
defendant and the forum do not drive the jurisdictional
analysis. Simply because defendant directed his conduct at
plaintiffs with knowledge of their Nevada connections is
insufficient. A plaintiff's forum connections are not to be
attributed to the defendant. "[A] mere injury to a forum
resident is not a sufficient connection to the forum."
Regardless of where a plaintiff lives or works, an injury is
"jurisdictionally relevant" only insofar as it shows that
defendant has formed a contact with the forum state. The "proper
question" is not where the plaintiff experienced a particular
injury or effect "but whether the defendant's conduct connects
him to the forum in a meaningful way."9
The question is not how minimal to a defendant the "burden of
defending in a foreign tribunal" might be. Rather, it is the
requisite "minimal contacts" with the forum state that allow the
exercise of power over a defendant. The court noted that it had
upheld jurisdiction where defendants purposefully "reached out
beyond" their state and into another by, for example, entering a
contractual relationship that "envisioned continuing and
wide-reaching contacts" in the forum state.10
The court also had upheld jurisdiction when the defendant
"circulated magazines 'to deliberately exploit' a market" in the
forum state. A relevant contact is "physical entry" into the
state—either by the defendant in person or through an agent,
goods, mail, or some other means.11 But it is clear
that a defendant's "random, fortuitous or attenuated contacts"
or the "unilateral activity" of a plaintiff are insufficient.
The Supreme Court illustrated the application of these
principles with a discussion of Calder v. Jones,12
a California libel action by a California actress against the
reporter and editor of the National Enquirer based on an article
written and edited in Florida. The weekly newspaper had a
circulation in California of roughly 600,000. Jurisdiction was
upheld because the jurisdictional inquiry "focused on the
relationship among the defendant, the forum and the litigation."
The court examined the various contacts defendant had created
with California by writing the libelous story. Those forum
contacts were deemed "ample."
The defendants relied on phone calls to "California sources" for
the information in the article; they wrote the story about the
plaintiff's activities in California; they caused reputational
injury in California by writing an allegedly libelous article
that was widely circulated in the state; and the "brunt" of that
injury was suffered by the plaintiff in California. As the court
put it, "California was the focal point both of the story and of
the harm suffered." Jurisdiction was therefore proper in
California based on the "effects" of their Florida conduct in
But the court did not stop there. It was the very nature of the
libel tort that strengthened the defendants' connection to
California, not just to the plaintiff. The "crux of Calder"
was the reputation-based "effects" of the alleged libel that
connected defendants to California. However scandalous a
newspaper article might be, it can lead to a loss of reputation
only if communicated to (and read and understood by) third
persons. Thus, the "reputational injury caused by defendants'
story" would not have occurred but for the fact that the
defendant wrote an article for publication in California that
was read by a large number of California citizens.
Indeed, "because publication to third persons is a necessary
element of libel, the defendant's tort actually occurred in
California."14 Even though the defendants did not
circulate the article themselves, they "expressly aimed" their
"intentional and allegedly tortious actions" at California
because they knew the National Enquirer had its largest
circulation there and that the article would "have a potentially
devastating impact" there.15
The court's focus on Calder's rather intensive connection
of defendants' libelous acts to the forum state (i.e.,
"defendant's tort actually occurred in California") suggests
that lesser "contacts" or connections can fall short. Some
states, for example, have "longarm" or "single-act" provisions
primarily emphasizing the occurrence of plaintiff's injury
within the state as being sufficient. But the court has again
made clear that the unilateral activity of the plaintiff in the
state is not the due process test. "Where the plaintiff
experiences a particular injury or effect" does not control. It
is the defendant's significant conduct that counts, i.e.,
"whether the defendant's conduct connects him to the forum in a
Further, due process requires that a defendant only be haled
into a forum court "based on his own affiliation" with the
state, not on "random, fortuitous or attenuated" contacts he
makes by interacting with other persons affiliated with the
state. Thus, there are states with longarm, "effects"-type
statutes that require something more than plaintiff's in-state
injury but far less than the intensive forum connections
specified in Calder.
Will such "gray area" jurisdictional predicates pass
constitutional muster? Perhaps not. There seems room for
advocacy both ways. New York's CPLR 302(a)1, for example, would
fasten jurisdiction for actions arising out of a contract
"anywhere" to supply goods or services in the state. Is a
defendant's contract made "anywhere" outside New York a
"meaningful," jurisdictionally relevant connection or is it a
"random, fortuitous or attenuated contact" made by interacting
with other persons who are affiliated with the state?
Or, consider the ever-popular CPLR 302(a)3(i) which fastens
jurisdiction for a tort committed outside New York if the
defendant regularly "derives substantial revenue from goods used
or consumed" in the state. If a foreign manufacturer earns
revenue from selling its products to others outside New York, is
that a "meaningful" connection by the defendant himself with the
state simply because the goods end up being used in the state?
Is the mere sale in New York of defendant's goods by others a
"meaningful" forum contact by the defendant himself or, rather,
a "random, fortuitous or attenuated" contact made by
"interacting" with other persons affiliated with the state?
Keep in mind that a defendant's mere knowledge or foreseeability
that its goods will be sold by others is not the equivalent of
"minimum contacts." Further, CPLR 302(a)3(ii) posits
jurisdiction when the foreign defendant "expects" (or "should")
that his out-of-state act will have in-state consequences and
derives substantial revenue from "interstate or international
commerce." Isn't "expectation" something like mere "foreseeability"?
That may not work. And how does "interstate or international
commerce" supply a "meaningful" and direct, rather than a
"random, fortuitous or attenuated," connection by defendant with
deserves the bench and bar's keen analysis. Prior assumptions
about specific, longarm or "effects"-based jurisdiction may now
be shaky or, at least, debatable. Statutory provisions can be
found unconstitutional "as applied," so the facts of a given
scenario become quite significant. Incisive advocacy clearly can
play a role. The reader also should study Daimler AG for
that decision has critical observations about the limited
jurisdictional role a foreign company's domestic subsidiaries
may play in the jurisdictional picture.
is a member of Herzfeld & Rubin.
1. No. 12-574 (U.S. Sup. Ct. Feb. 25, 2014) (Slip Opinion).
2. Walden, Slip Op. at 6 n. 6.
3. No. 11-965 (U.S. Sup. Ct. Jan. 14, 2014) (Slip Opinion).
4. Daimler AG v. Bauman, Slip Op. at p. 18 n. 16.
5. Id., Daimler AG, Slip Op. at 21.
6. Walden, Slip Op. at 6-7.
7. Walden, Slip Op. at 7-8.
8. Walden, Slip Op. at 11 (Emphasis by court).
9. Walden, Slip Op. at 11-12. The court rejected other "possible
contacts with Nevada" as "unavailing." Thus, plaintiffs' Nevada
lawyer contacted Walden in Georgia; some of the seized cash
originated in Nevada; and the funds were eventually returned to
plaintiffs in Nevada. These "attenuated" connections were not
created by Walden, however. Thus, they were not jurisdictionally
relevant. Id. at 13.
10. Walden, Slip Op. at p. 7.
11. Walden, Slip Op. at p. 8.
12. 465 U.S. 783 (1984).
13. Walden, Slip Op. at pp. 9-10.
14. Walden, Slip Op. at p. 10. (Emphasis by court).
15. Id. at pp.10-11 n. 7.
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