Purposeful Availment

Purposeful Availment

Every specific-jurisdiction problem begins with one question about the defendant: what did it do to connect itself with the forum? Specific jurisdiction, unlike general jurisdiction, turns on the relationship between the forum and the events giving rise to the claim rather than on the sheer extent of the defendant's forum contacts,¹ and purposeful availment has proved the most significant mechanism for resolving questions of specific jurisdiction.²

Ford Motor Co. v. Montana Eighth Judicial District Court states the requirement this way: there must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state.³ The contacts must be the defendant's own choice, not “random, isolated, or fortuitous,” and they must show that the defendant deliberately reached out beyond its home, for example by exploiting a market in the forum or by entering a contractual relationship centered there.⁴ A company that advertises in a state and sells to its residents has reached into it. A company whose only link is that a customer carried its goods across the border has made no such choice.

Two ideas support the requirement, and both depend on the defendant's own decision. The first is reciprocity: a company that exercises the privilege of conducting activities within a state enjoys the benefit and protection of its laws, and International Shoe lets the state hold it to account for related misconduct.⁵ The second is fair warning: a defendant that knows which activities may subject it to a foreign sovereign's courts can structure its primary conduct to lessen or avoid that exposure.⁶ When someone else creates the link, both supports fail. The defendant has drawn no benefit from the forum's laws for a lawsuit to repay, and it had no chance to steer clear of the forum beforehand.

Three questions give the doctrine its edges: whose acts count when a plaintiff or third party brings the defendant and the forum together, whether a single contact can be enough, and what kind of foreseeability a court may rely on. Hanson v. Denckla, McGee v. International Life Insurance Co., and World-Wide Volkswagen Corp. v. Woodson answer them in that order.

Unilateral Activity of Others

The purposeful-availment inquiry starts by asking whose conduct created the connection between the defendant and the forum, and Hanson v. Denckla answers that the connection must come from the defendant. The Court put the point bluntly: “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.”⁷ The rule follows from what a contact is supposed to justify. A state may call a defendant into its courts because the defendant chose to act there and took the benefit of the state's laws, and the defendant can avoid a state only if entry depends on its own decision. If a plaintiff or a stranger could create the contact by moving to the forum or acting there, claimants could choose their courts by relocating, and defendants would have neither a benefit to repay nor a warning to stay away. The contacts that count are therefore the defendant's, not the plaintiff's or a third party's.⁸

The facts of Hanson show how a defendant can become tied to a state without any act of its own. Mrs. Donner, then domiciled in Pennsylvania, created a trust of securities in Delaware with a Delaware trust company as trustee, kept the income for life, and reserved a power of appointment over the remainder. She later moved to Florida and exercised the power there, directing $400,000 to other Delaware trusts for the children of one daughter. In a will signed at the same time, she left the residue in trust for two other daughters.⁹ After her death, those two daughters sued in Florida for a declaration that the appointment was invalid.¹⁰ Florida treated the trustee as an indispensable party to any proceeding affecting the validity of a trust, so the court could not decide the question without binding the Delaware trust company.¹¹ The Supreme Court held that the Florida courts lacked jurisdiction over the trustee, and Mrs. Donner's estate passed in equal thirds to her three daughters.¹²

The Court's inventory of what the trustee lacked explains the result. The trust company had no office in Florida, transacted no business there, never held or administered trust assets there, and made no solicitation of business in the state in person or by mail.¹³ Florida's first relationship to the trust arose years after Delaware created it, when the settlor became domiciled in Florida and the trustee sent her the income there. From Florida she carried on several bits of trust administration that the Court compared to the mailing of premiums in McGee. But the record disclosed no act by the trustee in Florida bearing the same relationship to the agreement as the solicitation in McGee, so the suit could not be called one to enforce an obligation arising from a privilege the trustee exercised in Florida.¹⁴ Nor could the settlor's exercise of her power of appointment in Florida supply the missing act.¹⁵

Florida's other justifications fared no better. A state does not acquire jurisdiction over a trustee by being the “center of gravity” of the controversy or the most convenient location for litigation: the issue is personal jurisdiction, not choice of law, and it is resolved by looking at the acts of the trustee.¹⁶ Shaffer v. Heitner drew the same line. The interest the plaintiff identified there might support applying Delaware law to the actions of the defendants as officers and directors, but the Court rejected the argument that, if a state's law can properly be applied to a dispute, its courts necessarily have jurisdiction over the parties.¹⁷

That scene supplies every item on the Court's list of absences in Hanson: an office, business transacted, assets administered, and solicitation of local clients. Each Florida fact in the hypothetical is an act of the trust company; each Florida fact in Hanson was an act of the settlor. The rule credits only the first kind.

In Hanson the Court distinguished McGee v. International Life Insurance Co. on its facts. The McGee insurer had solicited a reinsurance agreement with a California resident, who accepted the offer in California and mailed premiums from there, and the suit rested on a contract with a substantial connection to California. Hanson, by contrast, involved the validity of a trust agreement entered into without any connection to Florida.¹⁸ The deeper difference lies in the theory of jurisdiction. Hanson's formula, requiring some act by which the defendant purposefully avails itself of the privilege of conducting activities in the forum, has proved far more consistent with the Court's later holdings than McGee's emphasis on fairness.¹⁹ Looking back, the distinction is plain: the McGee defendant voluntarily created a relationship with the forum for its own benefit, while the Hanson defendant's relationship with Florida was an accidental byproduct of the activities of others, which it could not reasonably control.²⁰

Kulko v. Superior Court applied the same reasoning to a family dispute. A mother who had moved to California sued there to increase the child support owed by her former husband, a New York domiciliary. The California courts upheld jurisdiction in part because he had acquiesced in his daughter's desire to live with her mother in California.²¹ The Supreme Court disagreed. A father who agrees, in the interests of family harmony and his children's preferences, to let them spend more time in California than a separation agreement required can hardly be said to have purposefully availed himself of the benefits and protections of California's laws, and holding otherwise would discourage parents from entering reasonable visitation agreements.²² The Court also rejected the claim that he profited from his daughter's nine months a year in California. Any reduction in his household costs resulted from her absence from his New York home, not from her presence in California.²³

Burger King grouped these decisions as a family. Due process forbids jurisdiction over an automobile distributor whose only tie to the forum came from a customer's decision to drive there, over a divorced husband whose only tie came from his former spouse's decision to settle there, and over a trustee whose only tie came from the settlor's decision to exercise her power of appointment there.²⁴ In each case the defendant had no “clear notice that it is subject to suit” in the forum and no opportunity to “alleviate the risk of burdensome litigation” there.²⁵ Jurisdiction is proper only when the “substantial connection” between defendant and forum comes about by an action of the defendant purposefully directed toward the forum state.²⁶

On an exam, the usual error is to count a forum fact that the plaintiff or a third party created, such as a settlor's move or a customer's drive, as though it were the defendant's contact. Sort each forum fact in the stem by who did it.

A Single Deliberate Contact

McGee v. International Life Insurance Co. holds that a single deliberate contact with the forum, such as soliciting and maintaining an insurance contract with a forum resident, can support specific jurisdiction when the suit arises out of that contact and the forum has a strong interest in giving its residents a remedy.²⁷ The facts show how little the insurer actually did in the forum. Lowell Franklin, a California resident, bought a life insurance policy in 1944 from Empire Mutual, an Arizona company. In 1948 International Life, a Texas company, agreed to assume Empire Mutual's obligations and mailed Franklin a reinsurance certificate in California offering to insure him on the terms of his existing policy. He accepted, and until his death in 1950 he mailed premiums from his California home to the insurer's Texas office.²⁸ His mother, Lulu McGee, was the beneficiary. When the insurer refused to pay on the ground that he had committed suicide, she sued in California. The insurer had never had an office or agent in California and, so far as the record showed, had never solicited or done insurance business there apart from this one policy.²⁹

McGee served the insurer by registered mail in Texas under a California statute that subjected foreign insurers to suit on contracts with California residents, won a judgment, and then found that the Texas courts would not enforce it because they considered California to have lacked jurisdiction.³⁰ The statute authorized the suit, so the live question was whether applying it to this insurer satisfied due process, and the Supreme Court reversed.³¹ The Court found it sufficient that the suit rested on a contract with a substantial connection to California: the contract was delivered there, the premiums were mailed from there, and the insured lived there when he died.³² It added that California has a “manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.”³³ Residents forced to follow an insurer to a distant state would be at a severe disadvantage, small and moderate claims could not bear the cost, and the crucial witnesses on the suicide defense would be found where the insured had lived, so the insurer's inconvenience in defending in California fell well short of a denial of due process.³⁴

Interests of that kind (the forum's stake, the plaintiff's costs, the defendant's burden) are weighed at the later fairness step. Once minimum contacts exist, the interests of the plaintiff and the forum often justify even serious burdens on the defendant, as the Court recognized in Asahi, though it found those interests slight there.³⁵

The Court set the McGee result inside a larger movement toward wider state jurisdiction. Commerce had become national, a great deal of business was now done by mail across state lines, and modern transportation and communication made it much less burdensome for a defendant to defend in a state where it did business.³⁶ That backdrop explains why an insurer that never entered California could still be bound there, and Burger King later stated the point generally: a commercial actor whose efforts are purposefully directed toward residents of another state cannot defeat jurisdiction merely because it never physically entered that state.³⁷ The reason one act can carry so much weight lies in what the act is. A deliberate act aimed at a forum resident ties the defendant to the forum however few such acts there are, because the defendant has taken in the business the act produced and so has taken the benefit of the forum's legal protections. The forum, for its part, has a genuine stake in giving its residents a remedy against an insurer they dealt with. An act that is random or remote offers neither the benefit nor the warning, and the defendant then has no reason to expect suit in that place.

Two features of the facts explain why one contact was enough. The first is that the contact was the insurer's own choice, directed at a person it knew lived in California: it chose to mail an offer there and then to accept premiums sent from there. The second is that the claim arose from that same contact, since Lulu McGee sued to collect on the policy that the mailed certificate had continued. When claim and contact are the same transaction, the forum is adjudicating something the defendant itself created there, and the absence of other California business subtracts nothing. Burger King restated the principle: so long as a single act creates a substantial connection with the forum, it can support jurisdiction.³⁸

The same logic fixes the limit. International Shoe lets a defendant be sued on claims arising out of its in-state acts, but it does not allow a suit on claims unrelated to those acts.³⁹ Heavy forum business does not close the gap unless the defendant is at home there. A French carmaker with large Texas sales cannot be sued in Texas by an American tourist injured in Italy by a defectively designed car, because the suit does not arise out of any Texas-related activity of the carmaker and the carmaker is neither incorporated nor headquartered in Texas.⁴⁰

McGee marks the broad end of the decisions that followed International Shoe. The only demonstrated forum contact was one policy, and the Court's reasons, including the modest size of the claim, easier modern travel, and California's special statute, all pointed toward wide state reach.⁴¹ The opinion also left a question open. It weighed several considerations together, among them California's interest, the premiums mailed from California, the location of witnesses, and the insurer's inconvenience, and it did not say whether the insurer's own contact was essential or only one factor among those.⁴² Hanson v. Denckla, which followed within months, answered by making the defendant's purposeful act essential, so that the forum's interest and convenience cannot stand in for it.⁴³

The order matters because the third step cannot repair a failure at the first. What happens when an exam stem reproduces everything about McGee except the insurer's own act?

The scene isolates the variable. Every fairness consideration that favored California in McGee is present, and the one missing fact is an act by the insurer itself, which is why those considerations cannot supply it.⁴⁷ Jurisdiction is proper where the contacts proximately result from actions by the defendant that create a substantial connection with the forum, and it is improper where they rest on random, fortuitous, or attenuated contacts or on the unilateral activity of another party.⁴⁸

A second qualification applies even to a defendant's own acts. Some single or occasional acts related to the forum may fall short when their nature and quality and the circumstances of their commission create only an attenuated affiliation with the forum, because the foreseeability of litigation there is then substantially diminished.⁴⁹ McGee therefore does not mean that any one contact will do. It means that a contact the defendant chose, aimed at a forum resident, and giving rise to the suit can do all the work. When a stem offers a single forum contact, sort it by three questions: who made it, whether it was directed at the forum or its residents, and whether the claim grows out of it.

Foreseeability Is Not Enough

World-Wide Volkswagen Corp. v. Woodson holds that the mere foreseeability that a product sold in one state might travel to another is not enough for personal jurisdiction. A forum may not reach a defendant whose only connection with it is that a consumer took the product there, unless the defendant itself purposefully availed itself of the forum's market or protections. The case applies Hanson to product sales: the unilateral act of someone other than the defendant cannot supply the defendant's contact. The Court drew that parallel itself. It was no doubt foreseeable that the settlor of a Delaware trust would move to Florida and exercise a power of appointment there, yet Florida's courts could not constitutionally exercise jurisdiction over a Delaware trustee with no other forum contacts.⁵¹ A car, which is built to move, tests that principle harder than a trust does, and the facts show why the Court still held the line.

A New York couple bought a new Audi in New York and were driving to their new home in Arizona when an accident in Oklahoma started a fire that severely injured three of the plaintiffs.⁵² They sued four defendants in an Oklahoma state court on a design-defect theory: the manufacturer, the importer, the regional distributor, and the retail dealer. The manufacturer and the importer did not contest jurisdiction, so the Court decided the question only for the distributor and the dealer, which had entered special appearances to argue that Oklahoma had no power over them.⁵³ The Oklahoma Supreme Court upheld jurisdiction over those two under its long-arm statute, and the Supreme Court reversed.⁵⁴

The record separated the four defendants by what each had done to reach beyond its own territory. Seaway, the dealer, sold cars in Massena, New York. World-Wide's market, though substantially larger, was limited to dealers in New York, New Jersey, and Connecticut, and nothing showed that any car it distributed had been sold to retail customers outside that tristate area.⁵⁵ Neither defendant did anything in Oklahoma: they closed no sales and performed no services there, solicited no business through salespeople or through advertising reasonably calculated to reach the state, and did not regularly sell to Oklahoma customers or serve the Oklahoma market indirectly through others.⁵⁶ The plaintiffs were therefore resting jurisdiction on one isolated occurrence: a single Audi, sold in New York to New York residents, happened to suffer an accident while passing through Oklahoma.⁵⁷ That has the same shape as the Hanson trustee's tie to Florida, because every Oklahoma fact was supplied by the customer and none by the defendants.

Oklahoma's answer was that an automobile is mobile by design, so it was foreseeable that this Audi would cause injury in Oklahoma. The Court accepted the factual premise and rejected the legal conclusion, because foreseeability alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.⁵⁸ The reason lies in who controls the outcome. If foreseeability were the test, the Court warned, every seller of movable goods would “in effect appoint the chattel his agent for service of process,” and its amenability to suit “would travel with the chattel.”⁵⁹ A California tire retailer, for example, could be forced to defend in Pennsylvania whenever a blowout occurred there.⁶⁰ Because the route a buyer drives is the buyer's own decision, a seller's exposure would be set by the buyer's travel plans, which is the unilateral-activity problem from Hanson in a new setting. The Court likewise rejected the argument that the dealer and distributor earned revenue from cars capable of use in Oklahoma, since financial benefits from a collateral relation to the forum do not support jurisdiction unless they stem from a constitutionally cognizable contact with it.⁶¹

Foreseeability is not wholly irrelevant, but a different kind counts. The foreseeability that matters is that the defendant's own conduct and connection with the forum are such that it should reasonably anticipate being haled into court there, and the mere likelihood that a product will find its way into the forum does not qualify.⁶² The phrase has content only because the defendant's own purposeful acts supply the reason to anticipate suit. The Due Process Clause promises predictability so that potential defendants can structure their primary conduct with some minimum assurance of where that conduct will and will not make them liable to suit.⁶³

The same passage explains why purposeful availment marks the line. A corporation that purposefully avails itself of the privilege of conducting activities in a forum has clear notice that it is subject to suit there, and it can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the state.⁶⁴ Each of those responses depends on the defendant having chosen to enter the market, since a seller must know where the exposure lies before it can insure against it, price it into what customers pay, or withdraw from it. A dealer in Massena that never sold in Oklahoma had no Oklahoma market to price or to leave, so the clear notice that justifies jurisdiction over a market-serving defendant was missing.

The passage also supplies the contrast with the other two defendants. If the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from its efforts to serve, directly or indirectly, the market for its product in other states, it is not unreasonable to subject it to suit in one of those states when its allegedly defective merchandise has there been the source of injury.⁶⁵ A manufacturer and importer whose business deliberately extends into Oklahoma fall on that side of the line: Oklahoma's courts could hold them accountable for a car's catching fire there, even though the vehicle was designed and made overseas and sold in New York.⁶⁶ Because those two defendants did not contest jurisdiction, the Court's remark about companies like them was not a holding, and the Court has since acknowledged that it is technically dicta. The remark has nonetheless appeared and reappeared in later cases, including Keeton and Burger King, and on two other occasions the Court recited the block-quoted language verbatim.⁶⁷ What separates the two groups is what each did to serve the forum market, and a seller's knowledge of where a product is headed does not substitute for that effort.

Knowledge of the destination changed nothing in the first scene, because the store's only tie to New Mexico was still the customer's trip home. Even a defendant who knows where a product is headed must reach into the state more purposefully than that.⁶⁸ In the second scene the store made the tie itself. The foreseeability that satisfies due process is therefore a product of the defendant's own purposeful acts and cannot be assembled out of what the defendant happened to know.

The dissenters pressed the argument the majority turned away. They stressed that an automobile's intended use is travel, which made it highly artificial to confine the stream of commerce to the chain of distribution from manufacturer to ultimate consumer.⁶⁹ The majority's answer was that the predictability due process provides lets potential defendants structure their primary conduct with some minimum assurance of where it will make them liable to suit.⁷⁰ That assurance exists only if the defendant's own decisions, not the paths its customers take, determine where it can be sued. The dealer and distributor prevailed on that reasoning even though a forum may be the most convenient place to litigate and may have a strong interest in applying its law, because the Due Process Clause, as an instrument of interstate federalism, may still divest the state of power to render a valid judgment.⁷¹

On an exam, the tempting argument is that injury in the forum was foreseeable because the product is portable, or even that the seller knew where the buyer was headed. Neither argument identifies anything the seller did in the forum. Sort the facts by asking what the defendant itself did to serve the forum market, directly or indirectly. A local retailer and a regional distributor confined to a three-state market have done nothing of that kind, while a manufacturer or importer that markets its product in the forum has made the connection itself.