Burnham v. Superior Court, 495 U.S. 604 (1990)

Author: Justice White

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Burnham v. Superior Court, 495 U.S. 604 (1990)

Justice WHITE, concurring in part and concurring in the judgment.

I join Part I and Parts II-A, II-B, and II-C of Justice SCALIA’s opinion and concur in the judgment of affirmance. The rule allowing jurisdiction to be obtained over a nonresident by personal service in the forum state, without more, has been and is so widely accepted throughout this country that I could not possibly strike it down, either on its face or as applied in this case, on the ground that it denies due process of law guaranteed by the Fourteenth Amendment. Although the Court has the authority under the Amendment to examine even traditionally accepted procedures and declare them invalid, e.g., Shaffer v. Heitner, 433 U.S. 186 (1977), there has been no showing here or elsewhere that, as a general proposition, the rule is so arbitrary and lacking in common sense in so many instances that it should be held violative of Due Process in every case. Furthermore, until such a showing is made, which would be difficult indeed, claims in individual cases that the rule would operate unfairly as applied to the particular nonresident involved need not be entertained. At least this would be the case where presence in the forum state is intentional, which would almost always be the fact. Otherwise, there would be endless, fact-specific litigation in the trial and appellate courts, including this one. Here, personal service in California, without more, is enough, and I agree that the judgment should be affirmed.

1. 1 use the term "transient jurisdiction" to refer to jurisdiction premised solely on the fact that a person is served with process while physically present in the forum State.

2. Our reference in International Shoe to "`traditional notions of fair play and substantial justice,’" 326 U.S. at 316, meant simply that those concepts are indeed traditional ones, not that, as Justice SCALlA’s opinion suggests, see ante at 621, 622, their specific content was to be determined by tradition alone. We recognized that contemporary societal norms must play a role in our analysis. See, e.g., 326 U.S. at 317 (considerations of "reasonable[ness], in the context of our federal system of government").

3. Even Justice SCALIA’s opinion concedes that sometimes courts may discard "traditional" rules when they no longer comport with contemporary notions of due process. For example, although, beginning with the Romans, judicial tribunals for over a millenium permitted jurisdiction to be acquired by force, see L. Wenger, Institutes of the Roman Law of Civil Procedure 46-47 (O. Fisk trans., rev. ed. 1986), by the 19th century, as Justice SCALIA acknowledges, this method had largely disappeared. See ante at 613. I do not see why Justice SCALIA’s opinion assumes that there is no further progress to be made, and that the evolution of our legal system, and the society in which it operates, ended 100 years ago.

4. Some lower courts have concluded that transient jurisdiction did not survive Shaffer.See Nehemiah v. Athletics Congress of U.S.A., 765 F.2d 42, 46-47 (CA3 1985); Schreiber v. Allis-Chalmers Corp., 448 F.Supp. 1079, 1088-1091 (Kan.1978), rev’d on other grounds, 611 F.2d 790 (CA10 1979); Harold M. Pitman Co. v. Typecraft Software Ltd., 626 F.Supp. 305, 310-314 (ND Ill.1986); Bershaw v. Sarbacher, 40 Wash.App. 653, 657, 700 P.2d 347, 349 (1985). Others have held that transient jurisdiction is alive and well. See ante at 615-616. But even cases falling into the latter category have engaged in the type of due process analysis that Justice SCALIA’s opinion claims is unnecessary today. See, e.g., Amusement Equipment, Inc. v. Mordelt, 779 F.2d 264, 270 (CA5 1985); Hutto v. Plagens, 254 Ga. 512, 513, 330 S.E.2d 341, 342 (1985); In re Marriage of Pridemore, 146 Ill.App.3d 990, 992, 100 Ill.Dec. 640, 641-642, 497 N.E.2d 818, 819820 (1986); Oxmans’ Erwin Meat Co. v. Blacketer, 86 Wis.2d 683, 688-692, 273 N.W.2d 285, 287-290 (1979); Lockert v. Breedlove, 321 N.C. 66, 71-72, 361 S.E.2d 581, 585 (1987); NutriWest v. Gibson, 764 P.2d 693, 695-696 (Wyo. 1988); Cariaga v. Eighth Judicial District Court, 104 Nev. 544, 547, 762 P.2d 886, 888 (1988); El-Maksoud v. El-Maksoud, 237 N.J.Super. 483, 489, 568 A.2d 140, 143 (1989); Carr v. Carr, 375 S.E.2d 190, 192, and n. 5 (W.Va.1988).

5. Although commentators have disagreed over whether the rule of transient jurisdiction is consistent with modern conceptions of due process, that they have engaged in such a debate at all shows that they have rejected the methodology employed by Justice SCALIA’s opinion today. See Bernstine, Shaffer v. Heitner: A Death Warrant for the Transient Rule of In Personam Jurisdiction?, 25 Vill.L.Rev. 38, 47-68 (1979-1980); Brilmayer, et al., A General Look at General Jurisdiction, 66 Tex.L.Rev. 721, 748-755 (1988); Fyr, Shaffer v. Heitner: The Supreme Court’s Latest Last Words on State Court Jurisdiction, 26 Emory L.J. 739, 770-773 (1977); Lacy, Personal Jurisdiction and Service of Summons After Shaffer v. Heitner, 57 Ore.L.Rev. 505, 510 (1978); Posnak, A Uniform Approach to Judicial Jurisdiction After Worldwide and the Abolition of the "Gotcha" Theory, 30 Emory L.J. 729, 735, n. 30 (1981); Redish, Due Process, Federalism, and Personal Jurisdiction: A Theoretical Evaluation, 75 Nw.U.L.Rev. 1112, 1117 n. 35 (1981); Sedler, Judicial Jurisdiction and Choice of Law: The Consequences of Shaffer v. Heitner, 63 Iowa L.Rev. 1031, 1035 (1978); Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U.L.Rev. 33, 75 (1978); Vernon, Single Factor Bases of In Personam Jurisdiction -- A Speculation on the Impact of Shaffer v. Heitner 1978 Wash.U.L.Q. 273, 303; Von Mehren, Adjudicatory Jurisdiction: General Theories Compared and Evaluated, 63 B.U.L.Rev. 279, 300-307 (1983); Zammit, Reflections on Shaffer v. Heitner, 5 Hastings Const.L.Q. 15, 24 (1978).

6. See Restatement (Second) of Conflict of Laws § 24, Comment h p. 29 (Proposed Revisions 1986) ("One basic principle underlies all rules of jurisdiction. This principle is that a state does not have jurisdiction in the absence of some reasonable basis for exercising it. With respect to judicial jurisdiction, this principle was laid down by the Supreme Court of the United States in International Shoe. . . . "); id. at 30 ("Three factors are primarily responsible for existing rules of judicial jurisdiction. Present-day notions of fair play and substantial justice constitute the first factor"); id. at 41, § 28, Comment b, ("The Supreme Court held in Shaffer v. Heitner that the presence of a thing in a state gives that state jurisdiction to determine interests in the thing only in situations where the exercise of such jurisdiction would be reasonable. . . . It must likewise follow that considerations of reasonableness qualify the power of a state to exercise personal jurisdiction over an individual on the basis of his physical presence within its territory"); Restatement (Second) of Judgments § 8, Comment a, p. 64 (Tent. Draft No. 5, Mar. 10, 1978) (Shaffer establishes "`minimum contacts’ in place of presence as the principal basis for territorial jurisdiction").

7. I do not propose that the "contemporary notions of due process" to be applied are no more than "each Justice’s subjective assessment of what is fair and just." Ante at 623. Rather, the inquiry is guided by our decisions beginning with International Shoe Co. v. Washington, 326 U.S. 310 (1945), and the specific factors that we have developed to ascertain whether a jurisdictional rule comports with "traditional notions of fair play and substantial justice." See, e.g., Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 113 (1987) (noting "several factors," including "the burden on the defendant, the interests of the forum State, and the plaintiff’s interest in obtaining relief"). This analysis may not be "mechanical or quantitative," International Shoe, 326 U.S. at 319, but neither is it "freestanding," ante at 626, or dependent on personal whim. Our experience with this approach demonstrates that it is well within our competence to employ.

8. As Justice SCALIA’s opinion acknowledges, American courts in the 19th century erected the theory of transient jurisdiction largely upon Justice Story’s historical interpretation of Roman and continental sources. Justice SCALIA’s opinion concedes that the rule’s tradition "was not as clear as Story thought," ante at 611; in fact, it now appears that, as a historical matter, Story was almost surely wrong. See Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L.J. 289, 293-303 (1956); Hazard, A General Theory of State Court Jurisdiction, 1965 Sup.Ct. Rev. 241, 261 ("Story’s system reflected neither decided authority nor critical analysis"). Undeniably, Story’s views are in considerable tension with English common law -- a "tradition" closer to our own, and thus, I would imagine, one that in Justice SCALIA’s eyes is more deserving of our study than civil law practice. See R. Boote, An Historical Treatise of an Action or Suit at Law 97 (3d ed. 1805); G. Cheshire, Private International Law 601 (4th ed. 1952); J. Westlake, Private International Law 101-102 (1859); Note, British Precedents for Due Process Limitations on In Personam Jurisdiction, 48 Colum.L.Rev. 605, 610-611 (1948) ("The [British] cases evidence a judicial intent to limit the rules to those instances where their application is consonant with the demands of `fair play’ and ’substantial justice’ ").

It seems that Justice Story’s interpretation of historical practice amounts to little more than what Justice Story himself perceived to be "fair and just." See ante at 611 (quoting Justice Story’s statement that "`[w]here a party is within a territory, he may justly be subjected to its process’") (emphasis added and citation omitted). I see no reason to bind ourselves forever to that perception.

9. In Molony v. Dows, 8 Abbott’s Pr. R. 316 (N.Y. Common Pleas 1859), for example, the court dismissed an action for a tort that had occurred in California, even though the defendant was served with process while he was in the forum State of New York. The court rejected the plaintiff’s contention that it possessed "jurisdiction of all actions, local and transitory, where the defendant resides, or is personally served with process," id. at 325, with the comment that

an action cannot be maintained in this court, or in any court of this State, to recover a pecuniary satisfaction in damages for a willful injury to the person, inflicted in another State, where, at the time of the act, both the wrongdoer and the party injured were domiciled in that State as resident citizens.

Id. at 326. The court reasoned that it could not

undertake to redress every wrong that may have happened in any part of the world, [merely] because the parties, plaintiff or defendant, may afterwards happen to be within [the court’s] jurisdiction.

Id. at 327-328. Similarly, the Pennsylvania Supreme Court declared it

the most important principle of all municipal law of Anglo-Saxon origin, that a man shall only be liable to be called upon to answer for civil wrongs in the forum of his home, and the tribunal of his vicinage.

Coleman’s Appeal, 75 Pa. 441, 458 (1874) (emphasis added). And in Gardner v. Thomas, 14 John. *134 (N.Y.1817), the court was faced with the question

whether this Court will lake cognizance of a tort committed on the high seas, on board of a foreign vessel, both the parties being subjects or citizens of the country to which the vessel belongs,

after the ship had docked in New York and suit was commenced there. The court observed that Lord Mansfield had appeared

to doubt whether an action may be maintained in England for an injury in consequence of two persons fighting in France, [even] when both are within the jurisdiction of the Court.

Id. at 137. The court distinguished the instant case as an action "for an injury on the high seas" -- a location, "of course, without the actual or exclusive territory of any nation." Ibid. Nevertheless, the court found that, while

our Courts may take cognizance of torts committed on the high seas, on board of a foreign vessel where both parties are foreigners, . . . it must, on principles of policy, often rest in the sound discretion of the Court to afford jurisdiction or not, according to the circumstances of the case.

Id. at 137-138. In the particular case before it, the court found jurisdiction lacking. See id. at 138. See also 1 J. Wells, Jurisdiction of Courts 76 (1880) (reporting that a state court had argued that "courts have jurisdiction of actions for torts as to property, even where the parties are nonresident, and the torts were committed out of the state, if the defendant is served with process within the state," but also noting that "Clerke, J., very vigorously dissented in the case, and, I judge, with good reason").

It is possible to distinguish these cases narrowly on their facts, as Justice SCALIA demonstrates. See ante at 614-615, n. 3. Thus, Molony could be characterized as a case about the reluctance of one State to punish assaults occurring in another, Gardner as a forum non conveniens case, and Coleman’s Appeal as a case in which there was no in-state service of process. But such an approach would mistake the trees for the forest. The truth is that the transient rule as we now conceive it had no clear counterpart at common law. Just as today there is an interaction among rules governing jurisdiction, forum non conveniens, and choice of law, see, e.g., Ferens v. John Deere Co., 494 U.S. 516, 530-531 (1990); Shaffer, 433 U.S. at 224-226 (BRENNAN, J., concurring in part and in the judgment); Hanson v. Denckla, 357 U.S. 235, 254 (1958) (Black, J., dissenting), at common law there was a complex interplay among pleading requirements, venue, and substantive law -- an interplay which in large part substituted for a theory of "jurisdiction:"

A theory of territorial jurisdiction would in any event have been premature in England before, say, 1688, or perhaps even 1832. Problems of jurisdiction were the essence of medieval English law, and remained significant until the period of Victorian reform. But, until after 1800, it would have been impossible, even if it had been thought appropriate, to disentangle the question of territorial limitations on jurisdiction from those arising out of charter, prerogative, personal privilege, corporate liberty, ancient custom, and the fortuities of rules of pleading, venue, and process. The intricacies of English jurisdictional law of that time resist generalization on any theory except a franchisal one; they seem certainly not reducible to territorial dimension. The English precedents on jurisdiction were therefore of little relevance to American problems of the nineteenth century.

Hazard, A General Theory of State Court Jurisdiction, 1965 Sup.Ct.Rev. 241, 252-253. See also Twitchell, The Myth of General Jurisdiction, 101 Harv.L.Rev. 610, 617 (1988). The salient point is that many American courts followed English precedents and restricted the place where certain actions could be brought, regardless of the defendant’s presence or whether he was served there.

10. One distinguished legal historian has observed that

notwithstanding dogmatic generalizations later sanctioned by the Restatement [of Conflict of Laws], appellate courts hardly ever in fact held transient service sufficient as such

and that, "although the transient rule has often been mouthed by the courts, it has but rarely been applied." Ehrenzweig, supra, at 292, 295 (footnote omitted). Many of the cases cited in Justice SCALIA’s opinion, see ante at 2111-2112, involve either announcement of the rule in dictum or situations where factors other than in-state service supported the exercise of jurisdiction. See, e.g., Alley v. Caspari, 80 Me. 234, 236, 14 A. 12 (1888) (defendant found to be resident of forum); De Poret v. Gusman, 30 La.Ann. 930, 930 (1878) (cause of action arose in forum); Savin v. Bond, 57 Md. 228, 233 (1881) (both defendants residents of forum State); Hart v. Granger, 1 Conn. 154, 154-155 (1814) (suit brought against former resident of forum State based on contract entered into there); Baisley v. Baisley, 113 Mo. 544, 550 (1893) (court ruled for plaintiff on grounds of estoppel because defendant had failed to raise timely objection to jurisdiction in a prior suit); Bowman v. Flint, 37 Tex.Civ.App. 28, 28-29, 82 S.W. 1049, 1049-1050 (1904) (defendant did business within forum State, and cause of action arose there as well). In Picquet v. Swan, 19 F.Cas. 609 (No. 11, 134) (C.C.Mass.1828), Justice Story found jurisdiction to be lacking over a suit by a French citizen (a resident of Paris) against an American citizen also residing in Paris. See also Hazard, supra, at 261 (criticizing Story’s reasoning in Picquet as "at variance" with both American and English decisions).

11. As the Restatement suggests, there may be cases in which a defendant’s involuntary or unknowing presence in a State does not support the exercise of personal jurisdiction over him. The facts of the instant case do not require us to determine the outer limits of the transient jurisdiction rule.

12. That these privileges may independently be required by the Constitution does not mean that they must be ignored for purposes of determining the fairness of the transient jurisdiction rule. For example, in the context of specific jurisdiction, we consider whether a defendant "has availed himself of the privilege of conducting business" in the forum State, Burger King Corp. v. Rudzewicz. 471 U.S. 462, 476 (1985), or has "`invok[ed] the benefits and protections of its laws,’" id. at 475, quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958), even though the State could not deny the defendant the right to do so. See also Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. at 108-109 (plurality opinion); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

13. For example, in the federal system, a transient defendant can avoid protracted litigation of a spurious suit through a motion to dismiss for failure to state a claim or though a motion for summary judgment. Fed. Rules Civ. Proc. 12(b)(6) and 56. He can use relatively inexpensive methods of discovery, such as oral deposition by telephone (Rule 30(b)(7)), deposition upon written questions (Rule 31), interrogatories (Rule 33), and requests for admission (Rule 36), while enjoying protection from harassment (Rule 26(c)), and possibly obtaining costs and attorney’s fees for some of the work involved (Rule 37(a)(4), (b)-(d)). Moreover, a change of venue may be possible. 28 U.S.C. § 1404. In state court, many of the same procedural protections are available, as is the doctrine of forum non conveniens, under which the suit may be dismissed. See generally Abrams, Power, Convenience, and the Elimination of Personal Jurisdiction in the Federal Courts, 58 Ind. L.J. 1, 23-25 (1982).

14. Justice SCALIA’s opinion maintains that, viewing transient jurisdiction as a contractual bargain, the rule is "unconscionabl[e]," ante at 623, according to contemporary conceptions of fairness. But the opinion simultaneously insists that, because of its historical "pedigree," the rule is "the very baseline of reasonableness." Ante at 627. Thus is revealed Justice SCALIA’s belief that tradition alone is completely dispositive, and that no showing of unfairness can ever serve to invalidate a traditional jurisdictional practice. I disagree both with this belief and with Justice SCALIA’s assessment of the fairness of the transient jurisdiction bargain.

I note, moreover, that the dual conclusions of Justice SCALIA’s opinion create a singularly unattractive result. Justice SCALIA suggests that, when and if a jurisdictional rule becomes substantively unfair or even "unconscionable," this Court is powerless to alter it. Instead, he is willing to rely on individual States to limit or abandon bases of jurisdiction that have become obsolete. See ante at 627, and n. 5. This reliance is misplaced, for States have little incentive to limit rules such as transient jurisdiction that make it easier for their own citizens to sue out-of-state defendants. That States are more likely to expand their jurisdiction is illustrated by the adoption by many States of long-arm statutes extending the reach of personal jurisdiction to the limits established by the Federal Constitution. See 2 J. Moore, J. Lucas, H. Fink, & C. Thompson, Moore’s Federal Practice ¶ 4.41-1[4], p. 4-336 (2d ed. 1989); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1068, pp. 336-339 (1987). Out-of-staters do not vote in state elections or have a voice in state government. We should not assume therefore, that States will be motivated by "notions of fairness" to curb jurisdictional rules like the one at issue here. The reasoning of Justice SCALlA’s opinion today is strikingly oblivious to the raison d’etre of various constitutional doctrines designed to protect out-of-staters, such as the Art. IV Privileges and Immunities Clause and the Commerce Clause.


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Chicago: White, "White, J., Concurring," Burnham v. Superior Court, 495 U.S. 604 (1990) in 495 U.S. 604 Original Sources, accessed March 22, 2019, http://www.originalsources.com/Document.aspx?DocID=CZAHB4JUVLTQW8D.

MLA: White. "White, J., Concurring." Burnham v. Superior Court, 495 U.S. 604 (1990), in 495 U.S. 604, Original Sources. 22 Mar. 2019. www.originalsources.com/Document.aspx?DocID=CZAHB4JUVLTQW8D.

Harvard: White, 'White, J., Concurring' in Burnham v. Superior Court, 495 U.S. 604 (1990). cited in 1990, 495 U.S. 604. Original Sources, retrieved 22 March 2019, from http://www.originalsources.com/Document.aspx?DocID=CZAHB4JUVLTQW8D.