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«PLAINTIFF DUE PROCESS RIGHTS IN ASSERTIONS OF PERSONAL JURISDICTION R. D. REES* Personaljurisdiction proceedingsformally focus on the defendant's ...»

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Personaljurisdiction proceedingsformally focus on the defendant's liberty interest

in avoiding the reach of an overextending court. In this Note, R. D. Rees argues

that such an approach may fail to provide the plaintiff due process. The laws of

various jurisdictionsconvert a single set of underlying facts into distinct causes of action, and the Supreme Court understands these statutory programs to create property interests. Although a plaintiff may not have a substantive right to a cause of action in a given jurisdiction, she does have the procedural right to have her interests considered before dismissal for lack of jurisdictionfinally destroys her property claim. Since the defendant-centered nature of the "minimum contacts" test does not appear to allow for such consideration,Rees proposes a modest adjustment to the current test that would weigh plaintiff interests among the totality of the circumstances.

"A right of action is property."'

-Justice Benjamin Cardozo


The United States judicial system has long defined the scope of a court's jurisdiction as a constitutional issue.2 Yet the text of the Constitution gives no specific guidance on the extent of a court's personal jurisdiction. 3 The Supreme Court has judicially constructed a limiting * A.B., 1997, Dartmouth College; J.D. Candidate, 2003, New York University School of Law. I would like to express my appreciation to Amy Adler, Noah Feldman, Larry Kramer, David Shapiro, Linda Silberman, and Richard Stewart for their contributions to this Note and to my legal education. I am also deeply grateful to Merry Jean Chan for her guidance, support, and brilliance. This Note is dedicated to my uncle David Honegger and my aunt Carol Rees. Their lives were lost during my time at law school. Their generous, exuberant, and vital spirits continue to flourish in all of us whose lives they still touch.

1 Loucks v. Standard Oil Co., 120 N.E. 198, 201 (N.Y. 1918).

2 See Pennoyer v. Neff, 95 U.S. 714, 733 (1877). The importance of personal jurisdiction is evident, if for no other reason, from the judicial rhetoric it has spawned. For example, the Supreme Court once dubbed an attempt to expand state law beyond acceptable boundaries as "an illegitimate assumption of power... [that must be] resisted as mere

abuse." Id. at 729. Nevertheless, some courts have dismissed the subject altogether:

"[T]he legal issues raised in these cases are rather dull. If Judge Wapner had to worry about personal jurisdiction, 'The People's Court' would not be on television." Hall's Specialties, Inc. v. Schupbach, 758 F.2d 214, 215 (7th Cir. 1985).

3 This Note primarily considers jurisdiction over American citizens in United States courts, both state and federal. Jurisdiction over noncitizens of the United States is more challenging, as traditional understandings of sovereignty render a court's actual power and Imaged with the Permission of N.Y.U. School of Law NEW YORK UNIVERSITY LAW REVIEW [Vol. 78:405 theory of personal jurisdiction based upon the Due Process Clauses: 4 Defendants have a due process liberty interest shielding them from overreaching fora. As a result, a court's5 personal jurisdiction generally extends only to people within the relevant forum's borders, 6 and '7 to people and entities with whom the forum has "minimum contacts."

Under this traditional and long-accepted doctrine, the outcome of the due process inquiry-whether based on "tag" jurisdiction or on the minimum contacts test-is determined solely with reference to the defendant.

However, this traditional formulation is problematic. As recognized by the Supreme Court, plaintiffs have constitutionally protected property rights to their causes of action. 9 These property rights should not be ignored simply because a defendant challenges the assertion of jurisdiction. Two separate interests are involved in a jurisdictional proceeding-both the defendant's liberty interest and the plaintiff's property interest. Yet under current jurisprudence, courts may consider the defendant's interests only. In this way, a doctrine designed to protect defendants' due process rights serves paradoxically to deny due process to plaintiffs. To a plaintiff at a jurisdictional legitimacy far more suspect. See, e.g., Asahi Metal Indus. Co. v. Superior Court, 480 U.S.

102, 114 (1987) ("The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders."). For more on the considerations of power involved in state court assertions of jurisdiction over United States citizens, see infra note 86.

4 U.S. Const. amends. V, XIV; see Pennoyer, 95 U.S. at 733. See generally Geoffrey C. Hazard, Jr., A General Theory of State-Court Jurisdiction, 1965 Sup. Ct. Rev. 241;

Philip B. Kurland, The Supreme Court, the Due Process Clause and the In Personam Jurisdiction of State Courts-From Pennoyer to Denckla: A Review, 25 U. Chi. L. Rev. 569 (1958); Developments in the Law-State-Court Jurisdiction, 73 Harv. L. Rev. 909 (1960).

5 For simplicity, this Note ignores the distinction between state courts and federal courts in the personal jurisdiction context. The jurisdictional limits of state courts are judicially limited by the Due Process Clause, see supra note 4 and accompanying text, and in most cases the jurisdiction of federal courts is limited by administrative rule to the jurisdiction of the courts of the state in which it sits. See Fed. R. Civ. P. 4(k)(1)(A) (stating that personal jurisdiction is established over defendants "who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located").

But see Fed. R. Civ. P. 4(k)(1)(B)-(D) (providing limited instances of nationwide service of process). Also, federal courts in a particular state can transfer a case to a more appropriate venue if they do not have personal jurisdiction over the claim. Nevertheless, the result is the same: If a state court is deemed not to have personal jurisdiction to hear a cause of action, it likely cannot be heard in that state.

6 See, e.g., Burnham v. Superior Court, 495 U.S. 604, 628 (1990) (holding that personal jurisdiction obtained through service of process to defendant while voluntarily in state does not offend Due Process Clause).

7 See, e.g., Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

8 See infra Part II.A.

9 See infra Part I.A.

Imaged with the Permission of N.Y.U. School of Law April 2003] PLAINTIFF DUE PROCESS AND PERSONAL JURISDICTION 407 proceeding, "[i]t [is] like saying to a party, Appear, and you shall be heard; and, when [s]he has appeared, saying, Your appearance shall not be recognized, and you shall not be heard." 10 This note seeks to identify and resolve this troubling aspect of personal jurisdiction jurisprudence. Part I argues that a cause of action is constitutionally protected property, and, consequently, that plaintiff due process rights are at stake in jurisdictional proceedings.

Part L.A demonstrates that a cause of action is a property interest that cannot be denied without due process of law. Part I.B characterizes this right as being procedurally, rather than "substantively," protected. Part I.C maintains that this property right is adjudicated at a jurisdictional proceeding and addresses two objections to this assertion.

Part II argues that plaintiffs currently may not receive adequate process at personal jurisdiction proceedings. Part II.A examines the minimum contacts test, the current procedure utilized at jurisdictional proceedings. It concludes that the decision whether to assert personal jurisdiction primarily considers defendants' interests but fails to take plaintiffs' interests into account. Part I.B rejects the minimum contacts test as inadequate due process for plaintiffs' property interests.

Part III looks for possible solutions to the problem. Part III.A explores the "merits" of plaintiffs' claimed property rights and what might amount to adequate process for plaintiffs in the personal jurisdiction context. Part III.B suggests that a modest adjustment to current doctrine, one weighing the totality of the circumstances, would cure the current constitutional difficulties while continuing to protect defendants from unreasonable assertions of jurisdiction.


The Fourteenth Amendment to the Constitution bars states from depriving "any person of life, liberty, or property without due process of law."'" The Fifth Amendment imposes the same limitations on the federal government. 12 Denial of procedural consideration, then, is only problematic if plaintiffs have a property interest in a cause of action. 13 Otherwise, plaintiffs generally would have no right meriting 10 Windsor v. McVeigh, 93 U.S. 274, 278 (1876). For clarity's sake, this Note uses the feminine pronoun for the plaintiff and the masculine pronoun for the defendant throughout.

11 U.S. Const. amend. XIV, § 1.

12 See U.S. Const. amend. V.

13For purposes of this Note, cases dealing with plaintiff property rights to causes of action are used interchangeably with those regarding plaintiff rights to court access in the Imaged with the Permission of N.Y.U. School of Law NEW YORK UNIVERSITY LAW REVIEW [Vol. 78:405 constitutional protection. Part L.A demonstrates that the right to a cause of action, as created and defined by the states, is indeed a constitutionally protected property right. Part I.B considers but ultimately rejects the argument that there is a "substantive" due process right to maintain a cause of action, concluding instead that courts must only supply adequate process before dismissing a complaint.

Part I.C argues that jurisdictional proceedings necessarily adjudicate plaintiffs' property rights and examines two possible objections to this claim.

A Cause of Action as Constitutionally Protected Property A.

Our national conception of property has expanded greatly over the last half-century. In the past, property was some concrete "thing" or "entity" one could hold, see, or divide. 14 Today, property is understood as a "bundle of rights" with respect to something far more ephemeral and not always an "entity." 15 When Justice Brennan quoted Charles A. Reich's seminal article, "The New Property, '1 6 in Goldberg v. Kelly, 17 our judicial system ushered in this expanded notion of property. For example, courts have "unambiguously extended constitutional safeguards to advantageous relations with governfirst instance. Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), confronted the question of whether a plaintiff could bring a claim in the first instance. The plaintiff filed a discrimination claim with a state board, which failed to act within 120 days, thereby extinguishing his claim. See id. at 426-27. The Court ruled that the state must consider the merits of his complaint, for "[a] claimant has more than an


desire or interest in redressing his grievance: his right to redress is guaranteed by the State, with the adequacy of his claim assessed under what is, in essence, a 'for cause' standard, based upon the substantiality of the evidence." Id. at 431. The Logan Court further stated that right-toaccess jurisprudence provided an "analogous method of analysis supporting our reasoning" and characterized both its decision and Boddie v. Connecticut, 401 U.S. 371 (1971) (addressing plaintiff right-to-access), as holding that "having made access to the courts an entitlement or a necessity, the State may not deprive someone of that access unless the balance of state and private interests favors the government scheme." Logan, 455 U.S. at 430 n.5. Thus, in Logan, the Court essentially dismissed any distinction between cases dealing with the right to a cause of action and those dealing with court access. Additionally, under Logan's reasoning, access to the courts pursuant to a statutorily defined cause of action must be an entitlement subject to procedural protections since the underlying cause of action is "assessed under a... 'for cause' standard." Id. at 431.

14 See, e.g., D.F. Libling, The Concept of Property: Property in Intangibles, 94 Law 0.

Rev. 103, 104 (1978) ("Intangibles cannot be property in the same way as chattels or land.").

15 See, e.g., Stephen R. Munzer, A Theory of Property 22-36 (1990); J.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. Rev. 711, 712-24 (1996).

16 Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964).

17 397 U.S. 254, 262 n.8 (1970).

Imaged with the Permission of N.Y.U. School of Law April 2003] PLAINTIFF DUE PROCESS AND PERSONAL JURISDICTION 409 ment. ' ' 18 We now recognize that some government "entitlements [are] more like 'property' than a 'gratuity."' Nevertheless, not every entitlement is properly understood as property. For instance, in order to "have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. [Sh]e must have more than a unilateral expectation of it. [Sh]e must, instead, have a legitimate claim of entitlement to it.'' 20 In the governmental benefits context, "'property' interest[s are].. created and defined by statutory terms.

A plaintiff's ability to bring a cause of action clearly is "created and defined by statutory terms."'2 2 Therefore, under current, uncontroverted Supreme Court doctrine, a potential plaintiff has a property right to a cause of action. 23 Indeed, the Supreme Court has "held that a cause of action is a species of property protected by the Fourteenth '2 4 Amendment's Due Process Clause.

The first indication that access to the courts was a property right came in Mullane v. Central Hanover Bank & Trust Co. 25 In that case, a trustee wished to settle a large number of trust accounts whose beneficiaries were scattered across the country. The trustee published notification of the impending settlement action in a local newspaper.

The Court found this limited publication insufficient to satisfy the Due 18 Stephen G. Breyer et al., Administrative Law and Regulatory Policy 798 (5th ed.


19 Goldberg, 397 U.S. at 262 n.8.

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