Limits on Tag Jurisdiction

Limits on Tag Jurisdiction

Burnham holds that the Due Process Clause permits a state court to exercise personal jurisdiction over a nonresident individual who is personally served inside the state, even when the visit is brief and the claim is unrelated to it.¹ That holding makes in-state service the default route to jurisdiction over a natural person found in the forum, and the default has limits. Each limit traces to the premise on which the rule rests: a person who chooses to be in a state steps within that state's authority, can foresee suit in its courts, and has little ground to object when the papers arrive.

The premise has two parts, physical presence and a choice to be present, and most of the limits attach to the second. Where the choice is missing, or the plaintiff manufactured it, jurisdiction that depends on a decision to enter the state loses its footing. Where the visit serves a purpose the law protects, enforcing the rule would penalize the very trip that brought the defendant to the forum. A rule built on an individual's decision to travel also reaches only individuals. Burnham itself left a final limit open, because the Court settled what the Constitution allows and left States and trial courts free to narrow the practice.

Learn the limits as consequences of that premise, not as unrelated carve-outs. On exam facts, the working question is whether the defendant chose to be in the forum when served, and for what purpose. The first limit is the one the Burnham opinions keep returning to: voluntary presence.

Voluntary Presence

Burnham upheld jurisdiction over a nonresident personally served in California.² Each Justice who explained the result described a defendant who had chosen to be there. Justice Brennan framed his conclusion around a defendant served “while voluntarily present in the forum State,” and he closed by noting that it was undisputed that Dennis Burnham was served “while voluntarily and knowingly” in California.³ Justice White would refuse to entertain individual claims of unfairness “at least” where “presence in the forum State is intentional, which would almost always be the fact.”⁴ The plurality found the suit fair to Burnham, who “voluntarily entered California,” in the limited sense that he had “no one but himself to blame.”⁵ The words differ, but each describes a defendant who picked the forum as a place to be.

None of those statements decides the question of unchosen presence, and a footnote in Justice Brennan's opinion says as much. “[T]here may be cases,” he wrote, “in which a defendant's involuntary or unknowing presence in a State does not support the exercise of personal jurisdiction over him,” and “[t]he facts of the instant case do not require us to determine the outer limits of the transient jurisdiction rule.”⁶ The voluntariness limit is therefore an inference from how the Justices phrased their reasoning, and the Court announced no holding about involuntary presence. A student asked whether unchosen presence supports jurisdiction should say that Burnham leaves the question open, then argue from the opinions' own language.

The Justices stressed choice for different reasons, and each rationale depends on choice in its own way. The plurality rests the defendant's expectation of suit on a tradition “which anyone entering California should have known about,” a tradition that makes the suit fair only because the defendant has “no one but himself to blame.”⁷ Blame attaches to someone who decided to enter; a person carried into a state by another's decision has done nothing the tradition can charge to that person. Justice Brennan likewise built his fairness analysis on the defendant's reasonable expectation of suit, which the plurality called fully persuasive, and on the benefits a visitor draws from the state's police, fire, and emergency services, its roads, and its economy.⁸ A defendant who did not choose to be there arguably neither expects suit nor knowingly takes those benefits.

Justice White's qualifier rests on a different reason, one of administration. He wanted to avoid “endless, fact-specific litigation,” and he tied his result to intentional presence, which he expected to be the fact almost always.⁹ A bright line is tolerable when exceptions are rare and easy to spot, and whether a defendant chose to travel to the forum is usually plain. The words “at least” leave the defendant whose presence was not chosen outside his reasoning.

A defendant who plans the trip sits at the safe end of the line: the plurality, Justice Brennan, and Justice White all describe that defendant, and tag applies as in Burnham. The hard cases begin when someone else chooses the route.

Older law paid no attention to the difference. Under the presence rule of Pennoyer, a nonresident could be served while travelling through a state by car or flying over it in an airplane, because the only question was where the defendant stood when the papers were delivered.¹⁰ Grace v. MacArthur took the idea to its limit when a federal court in Arkansas held that a defendant served on a plane flying over the state was reached jurisdictionally, though the flight began and was to end elsewhere and included no landing in the state.¹¹ Grace predates Burnham and treats location as enough. Burnham's opinions, which stress choice, invite a harder look at the question Grace never asked.

An exam can test this limit directly by asking whether tag reaches a passenger served in flight over a state the passenger never planned to enter.

Specific jurisdiction gives Pangea nothing, because the claim arises from the Maine collision and has nothing to do with the flight; the motion turns on tag.¹² Pangea's best argument begins with location. Denny stood inside Nevada when served, which is all the old presence rule asked, and Burnham approved service during a brief stay on a claim unrelated to the visit.¹³ Justice White's refusal to hear fairness complaints rests on the words “at least,” but Pangea can answer that Denny chose to fly to California, that a flight there can be expected to cross intervening states, and that a traveler who accepts that route accepts the chance of being served along it. Pangea can also stretch Justice Brennan's benefits rationale: the air traffic control services that guided the plane through Nevada airspace helped keep the flight safe.¹⁴

Denny answers from the same opinions. Every opinion that supports the result describes a defendant who chose to be present, and the plurality's point that a defendant has “no one but himself to blame” cannot be made about a passenger when the airline, the pilot, and the air traffic controllers set the route.¹⁵ Denny had probably given the route no thought, so his entry into Nevada airspace was neither intentional nor voluntary.¹⁶ The benefits argument fails for the same reason: passengers do not make routing decisions, so a passenger does not draw on a state's services merely because the pilot relies on a control tower there.¹⁷ Justice Brennan's own phrase, “voluntarily and knowingly,” points the same way. Grace, finally, is a single decision from before Burnham, thin evidence of the long, current tradition on which the plurality relied.

Because Justice Brennan's footnote leaves the outer limits undecided, no opinion settles the point, and an answer should say so. The better-supported answer on the language of the opinions favors Denny; one source concludes that transient presence jurisdiction should not apply to a passenger whose entry into Nevada airspace was neither intentional nor voluntary.¹⁸ An answer for Pangea remains defensible, however, because Burnham never decided the point.¹⁹ A strong exam answer identifies the transient-presence issue, explains why Burnham does not resolve it, and runs each Justice's rationale against the facts.

Fraud and Force

Unchosen presence can also be the plaintiff's doing, and Burnham's survey of the tradition behind in-state service shows that the law has long treated that case differently. The plurality observed that most States had statutes or common-law rules exempting from service of process individuals brought into the forum by force or fraud, as well as those present as a party or witness in unrelated judicial proceedings.²¹ It offered the exemptions as evidence of the settled rule, since they obviously rested on the premise that service of process conferred jurisdiction.²² The opinion cites them as history and had no occasion to apply one, because Dennis Burnham was in California by his own choice.²³ This section takes up the first exemption, and the next takes up the second.

The exemption follows from what justifies tag in the first place. The opinions supporting the result describe a defendant who chose to be in the forum, and that choice lets the state say the defendant could foresee suit there. A plaintiff who manufactures the visit supplies the physical presence the rule requires and removes the choice that gave presence its meaning. Enforcing the service would let plaintiffs pick a forum by arranging the defendant's delivery to it, and would reward the party who deceived. Courts therefore do not treat service as conferring jurisdiction when the defendant was forced or tricked into the forum in order to be served.²⁴

The standard illustration of fraud is Terlizzi v. Brodie. The defendants, New Jersey domiciliaries, received free New York City theatre tickets on the pretext that the tickets would help gauge their reaction to a new curtain time. Seated next to them was the plaintiff's process server, who served them, and the New York Appellate Division refused to treat that service as a basis for jurisdiction.²⁵ On the surface every element of tag was present: the defendants were physically in New York and were personally served there, and they had even chosen to go to the theatre. The failure lies in the origin of the trip. The plaintiff's deceit induced the choice, so the voluntariness on which tag depends means a choice made free of the plaintiff's trickery or compulsion.

Force works the same way as fraud, which is why the historical exemption names them together.²⁶ A defendant carried across the state line against the defendant's will has made no decision about the forum at all, so service at the journey's end has even less claim to support jurisdiction than service on a defendant who was tricked into traveling.

The exemption's effects reach beyond the moment of service. When tag is the only basis for jurisdiction and the plaintiff enticed the defendant into the forum, the service does not confer jurisdiction, and the suit may be dismissed for want of it.²⁷ A defendant who defaults can attack the resulting judgment in a later proceeding, because personal jurisdiction was never actually litigated in the first case; a defendant who appears specially and loses on the point cannot.²⁸ Even apart from that rule, a court may decline to exercise jurisdiction over a defendant lured in by trickery, though exercising it would not violate the Constitution.²⁹ The exemption matters only when tag stands alone: a lured defendant whose forum contacts independently support specific jurisdiction remains reachable on that separate basis.

A tempting overreading holds that any trick connected with service defeats it. The distinction that blocks the overreading is between creating the defendant's presence and delivering papers to a defendant who is already present. Courts generally allow process servers to use whatever means are needed to complete personal service on a recalcitrant defendant.³⁰

The service stands. The ruse produced the handoff but left untouched the fact that the businessman came to Texas on his own business, so tag applies as in Burnham. The theatre tickets in Terlizzi and the invitation in the mechanic example each created the visit, while the courier created only the delivery. Permitting persistence also keeps a defendant who is in the forum from defeating jurisdiction merely by hiding. A fact pattern that mentions a trick therefore calls for one question: did the trick bring the defendant into the forum, or did it only put the papers in the hands of someone already there?

Immunity for Litigation Participants

The second exemption the Burnham plurality listed protects a defendant who was in the forum as a party or witness in unrelated judicial proceedings.³² Courts call it immunity from process. The fraud exemption protects a defendant whose presence the plaintiff manufactured; this one protects a defendant who came to take part in a proceeding the law wants to encourage. That difference in how the presence arose gives the immunity its own reason and its own edges.

Courts typically grant immunity from process to trial participants who would otherwise be outside the court's jurisdictional reach, to encourage active participation in judicial proceedings and so secure full and fair trials.³³ The protection covers nonresident attorneys, parties, and witnesses served in an unrelated action while attending a trial in the state or traveling to one, whether the trial is criminal or civil, and it has been extended to people in the state solely to discuss an out-of-court settlement.³⁴ More generally, a defendant in the state for purposes of a court proceeding is immune from service.³⁵

The reason for the rule lies in what tag does to a nonresident who has to come to court. Tag makes the forum a place where a stranger can be sued on any claim by being handed papers, and a trial draws strangers to the state: a witness from another state, a party who lives elsewhere, a lawyer retained from another city. Courts need those people to come. If appearing meant that any plaintiff with an unrelated grievance could wait at the courthouse door, a rational nonresident would stay away, and the trial would proceed without the testimony or the participants it needed. Immunity removes that deterrent at its source, and the doctrine rests on a desire to encourage nonresidents to enter the state voluntarily when they could remain outside.³⁶ That premise also explains who receives the protection and, as the limits below show, who does not.

The immunity turns on why the defendant came. A nonresident who visited the same city on vacation and was served at the hotel receives no protection, and Burnham's rule governs.³⁷ Because the immunity depends on the defendant's purpose, the same premise marks three limits on it, each asking whether an entry decision exists for the immunity to protect.

The first limit is the counterclaim. A nonresident plaintiff is not immune from a counterclaim in the forum, because by instituting the action the plaintiff submitted to the court's jurisdiction.³⁸ The reasoning follows from the immunity's purpose. Someone else's litigation draws a witness to the forum, so the court must protect the witness's willingness to come. A plaintiff chose the forum and asked for its power, so the plaintiff needs no inducement and cannot claim to be a stranger to the court's authority. A nonresident who travels to testify at another's trial cannot be sued in the corridor on an unrelated claim, while a nonresident who travels to try the nonresident's own suit must answer the defendant's counterclaim in that same case.

The second limit concerns a person who was already in the state before any litigation existed. The immunity does not protect someone who entered before any action was brought and was later detained involuntarily and then served.³⁹ Entry that precedes any lawsuit cannot have been prompted or deterred by one, so the immunity has no deterrent to remove. The later detention supplies none, because the person did not choose to come in order to take part in anything. That person's remaining argument is the unchosen-presence question from the first section, which Burnham left open.

The third limit applies where the court's authority does not depend on in-state service at all. The doctrine is of no use to a person subject to the court's long-arm jurisdiction, because that person could not have prevented service merely by staying outside the state.⁴⁰ If staying home would not have avoided the suit, entering the state added no risk, and the immunity has nothing to undo.

That limit explains why the doctrine matters less than it once did. With the great expansion of long-arm jurisdiction in recent years, immunity from process has become a doctrine of decreasing utility for parties who want to resist jurisdiction, although it may still play an important role for witnesses.⁴¹ The structure of the rule explains the difference. A party to a dispute usually has some tie to the forum or the claim that a long-arm statute can reach, while a witness who travels from elsewhere to testify often has no other connection to the forum, so for that witness the immunity may be the only protection against suit.

Natural Persons Only

The Burnham rule applies to a defendant personally served while physically present in the forum, and the defendant in the case, Dennis Burnham, voluntarily entered California and was sued there for divorce.⁴⁴ Courts have declined to carry the rule over to corporations, and the reason shows what the rule rests on. Tag justifies a state's power by a person's physical presence in its territory and by the foreseeability of suit that follows from choosing to enter. Both ideas assume a body that can cross a state line by decision, and a corporation has no body and no location of its own; it is a legal entity distinct from the officers and employees who act for it.⁴⁵ If an executive's visit counted as the corporation's presence, the company would answer on any claim wherever its employees happened to travel, and corporate presence would again become a fiction built from the movements of its agents.

Courts have consistently refused to find jurisdiction over a corporation by serving an officer who happens to be in the forum. The Supreme Court so held in James Dickinson Farm Mortgage Co. v. Harry, deciding that jurisdiction over a corporation cannot be acquired in a state where it has no place of business and is not found merely by serving an executive officer who is temporarily there, even when the officer is there on company business.⁴⁶ The Burnham plurality acknowledged the mismatch in a footnote, observing that corporations “have never fitted comfortably in a jurisdictional regime based primarily upon ‘de facto power over the defendant's person.’”⁴⁷ The same footnote adds that the Court's only holding supporting jurisdiction over a corporation on a claim unrelated to its forum activities involved service on the corporation's president while he was in the forum acting in that capacity, and it expresses no view on whether a special rule for continuous and systematic contacts applies only to corporations.⁴⁸ Jurisdiction over a corporation therefore has to rest on the corporation's own contacts with the state, and the travels of the people who act for it do not supply that basis.

The corporate cases also show the two jobs that service performs. In a standard illustration, Davies sues Holland Corporation, a Florida company that does business only in Florida, in a Massachusetts court over a Florida accident, and she has the papers handed to Chapman, Holland's president, while he visits his daughter in Boston. Delivery to the president is proper service under Rule 4(h)(1)(B), since it is hard to imagine a better way to let the corporation know it has been sued, yet the service supplies notice and nothing more.⁴⁹ Holland has no Massachusetts contacts, it is neither incorporated nor headquartered there, and the claim arose in Florida, so the court has no basis for jurisdiction over the corporation.⁵⁰ Had Davies named Chapman himself as a defendant, the identical handoff would have supported jurisdiction over him on any claim, because a natural person served during a voluntary visit is exactly the defendant Burnham describes.⁵¹ A corporation is not in the state merely because someone who works for it is, since it has a legal status distinct from its employees.⁵²

A partnership belongs on the other side of the line, because it has no legal status independent of its individual partners.⁵³ A corporation is a separate person from its officers, so serving an officer is not serving the defendant. A partnership is, in substance, the partners acting together, so serving a partner in the forum reaches natural persons who chose to be there and who make up the defendant. For that reason a court may constitutionally exercise personal jurisdiction over a partnership when one of its partners is served within the forum state, as the Second Circuit recognized in First American Corp. v. Price Waterhouse LLP.⁵⁴ The constitutional permission is only half the analysis. The power exists only where the state has authorized it through a long-arm provision, and not every state has done so.⁵⁵ For a natural person, authority over someone found in the territory is a common-law power that needs no statute, so the partnership rule adds a requirement of state authorization that the individual rule lacks.⁵⁶

The constitutional answer is identical in both versions of the bakery example, so the forum's own authorization is the fact that moves the result. A student who sees a partner served in the forum should therefore ask two questions: whether the service reaches natural persons who are the partnership, and whether the forum's law authorizes the court to treat that service as a basis for jurisdiction over the entity.

Treating individuals and corporations under different rules produces an oddity, which a concurring opinion in Daimler AG v. Bauman pointed out. The majority there held that Daimler was not subject to general jurisdiction in California despite its continuous operations and billions of dollars in sales in the state.⁵⁷ Justice Sotomayor, concurring only in the judgment, objected that the majority's approach produces the incongruous result that an individual whose only contact with a state is a one-time visit is subject to general jurisdiction if served during that visit, while a large corporation that owns property, employs workers, and does billions of dollars' worth of business in the state is not, simply because it has similar contacts elsewhere.⁵⁸ The observation criticizes the doctrine, and it does not change how the rules apply. The two results rest on different foundations. Tag rests on a state's power over a person found within its territory, while general jurisdiction over a corporation looks to the entity's own connection to the state, and the majority did not dispute that a state can exercise it where the corporation has its headquarters and principal place of business.⁵⁹ A problem that serves a corporate officer in the forum is resolved under the corporate rule, and the concurrence is useful only as a point about the tension in the doctrine.

Legislative and Judicial Safety Valves

Burnham marks the outer boundary of state power: the Due Process Clause permits a state court to exercise jurisdiction over a nonresident personally served in the forum, even when the visit is brief and the claim is unrelated to it.⁶² Inside that boundary, each State decides how much of the power to use. The plurality said so directly: nothing in its decision prevents individual States from limiting or entirely abandoning in-state service as a basis of jurisdiction.⁶³ Two questions are easy to run together here: whether the Constitution allows a court to take jurisdiction by tag, and whether the forum's own law, or the court's own discretion, leaves the case in place. The sections above answered the first, and the two safety valves below answer the second.

The plurality left the choice with the States because of how it validated the rule. A practice that earns its constitutional footing from long and continuing use by the States can be revised by the same actors whose use created it, and the plurality described its disagreement with Justice Brennan as a disagreement over who adopts change: the American people, or the Justices by decree.⁶⁴ If an overwhelming majority of States abandoned in-state service, the traditional notions of fairness the Court applies could themselves change. As matters stood in Burnham, however, the States had overwhelmingly declined to limit or abandon the rule, which the plurality read as a sign that they did not consider the change to be progress. The question, it said, was whether the Court, armed only with individual Justices' perceptions of fairness, could compel the States to make the change on the ground that due process requires it, and it held that the Court cannot.⁶⁵ A legislature is better placed to make the adjustment, since it can weigh the harshness of catching a traveler with papers against the predictability of a bright-line rule, and it can do so for its own courts without a ruling that binds every State.

Justice Brennan doubted that States would use the legislative valve. He pointed to the long-arm statutes that many States have extended to the limits of the Federal Constitution as evidence that States are more likely to expand their jurisdiction than to curb it.⁶⁶ If he is right, the legislative valve may rust unused, which is one reason the judicial valve matters in practice.

A trial court that holds valid tag jurisdiction is still not obliged to keep the case. Jurisdiction asks whether the court has the power to decide the dispute, and forum non conveniens, the doctrine that lets a court decline a case when another forum is far more suitable, asks whether it makes sense to use that power here. Constitutional questions about tag are often avoided through that doctrine, which can dismiss a case for want of local contacts even though jurisdiction technically exists.⁶⁷ Other devices soften the rule as well. In the federal system a transient defendant can seek an early end to a spurious suit through a motion to dismiss for failure to state a claim or a motion for summary judgment, can use inexpensive discovery methods and seek protection from harassment, and may be able to obtain a change of venue under 28 U.S.C. § 1404, while in state court many of the same protections are available along with forum non conveniens.⁶⁸ This division of labor lets the jurisdictional rule stay simple, since it turns on where the papers were handed over, while fairness concerns are handled one case at a time and without a constitutional ruling.

An exam can ask whether valid tag jurisdiction means the plaintiff keeps the forum, and the answer depends on how closely the dispute is tied to the place where the defendant was found.

Whether a particular court dismisses or transfers depends on the standards of that separate doctrine, so the example shows the available options and does not predict an outcome.

Tag is also unusual in where its authority comes from. Specific jurisdiction over defendants outside the state grew out of International Shoe, is not part of a court's common-law authority, and must be authorized by a statute or rule.⁶⁹ There is some support for the view that tag differs, and that a court has inherent common-law authority to exercise it even when no statute or rule authorizes it.⁷⁰ The difference gives the legislative valve a particular shape. A State that wants to narrow jurisdiction over absent defendants can decline to enact or broaden a long-arm provision, but a State that wants to narrow tag, if that view is right, cannot rely on the silence of its long-arm statute, because the common-law power is already in place and an affirmative enactment or decision must limit it. Because that support is not a Supreme Court holding, an exam answer should say that tag generally needs no long-arm statute and move on.

Taken together, the valves explain why Burnham does not end the practical analysis. A court with valid tag jurisdiction still has to ask whether the forum's law has cabined tag and whether the case belongs in the forum at all, and either answer can end the plaintiff's use of the forum even though the constitutional question was resolved in the plaintiff's favor. The valves soften tag without overruling it.