Personal Jurisdiction Over a Foreign Defendant
Serving a foreign company is one problem and having power over it is another. The analysis divides into claims that arise from what the defendant did in the forum and the much narrower category of defendants that can be sued there on anything.
The rule in short
A court may exercise general jurisdiction over a defendant only where it is essentially at home in the forum, which for a corporation ordinarily means its place of incorporation and principal place of business. Specific jurisdiction requires purposeful availment of the forum, a claim arising out of or relating to those contacts, and an exercise of jurisdiction consistent with fair play and substantial justice. A federal long-arm rule fills a narrow gap.
Two questions are easy to run together and have to be kept apart. Service asks whether the defendant was properly given notice, and is covered in serving process abroad under the Service Convention. Personal jurisdiction asks whether the court may bind that defendant at all. A perfectly served defendant may still be beyond the court's reach.
Two kinds of jurisdiction
General jurisdiction allows a court to hear any claim against the defendant, whatever its connection to the forum. Specific jurisdiction allows it to hear claims connected to what the defendant did there. Almost all cross-border litigation runs on the second, because the first has become very narrow.
The distinction matters at the pleading stage. A complaint asserting general jurisdiction against a foreign company because it does substantial business in the forum will usually fail. The same facts, reframed as contacts giving rise to the particular claim, often support jurisdiction comfortably.
Where a defendant is at home
The Supreme Court held in Goodyear and Daimler that general jurisdiction exists where the defendant is essentially at home in the forum. For an individual that is the domicile. For a corporation it is ordinarily the place of incorporation and the principal place of business, with the Court leaving open an exceptional case where operations elsewhere are so substantial as to render it at home there too.
Continuous and substantial business in the forum is no longer sufficient on its own. That change closed off a route plaintiffs had relied on for decades, and it is the reason so much modern argument concentrates on connecting the claim to specific forum conduct.
The elements of specific jurisdiction
Three requirements. The defendant must have purposefully availed itself of the privilege of conducting activities in the forum, invoking the benefits and protections of its laws. The claim must arise out of or relate to those contacts. And the exercise of jurisdiction must comport with traditional notions of fair play and substantial justice.
The contacts must be the defendant's own. The Court held in Walden that a defendant's relationship with a plaintiff who happens to live in the forum is not a contact with the forum. Injury felt at home, without conduct directed there, does not supply the connection. On the second element, the Court has confirmed that a claim may relate to forum contacts without being strictly caused by them.
A complaint naming a foreign manufacturer, its distributor and its local retailer presents three separate analyses, and a court with clear jurisdiction over the retailer may have none over the manufacturer. The same is true across claims: contacts supporting a contract claim may not support a tort claim arising from different conduct. Treating jurisdiction as a single question about the case is how well-founded claims get dismissed alongside weak ones.
| Basis | What it requires | Which claims it covers | Typical foreign defendant |
|---|---|---|---|
| At home | Incorporation or principal place of business in the forum | Any claim | Rare; most foreign companies are not |
| Specific contacts | Purposeful availment plus a related claim | Claims arising from or relating to those contacts | The usual route |
| Consent | A forum clause, an appearance, or a failure to object | Whatever the consent covers | Negotiated commercial relationships |
| Federal long-arm rule | Federal claim; not reachable in any single state | The federal claims pleaded | Defendants with contacts spread nationwide |
| Foreign state statute | An exception to immunity plus statutory service | Claims within that exception | Governments and their instrumentalities |
Stream of commerce, and what remains unsettled
A recurring problem is the foreign manufacturer that sells to a distributor and whose product injures someone in a state it never dealt with directly. The Supreme Court has divided on the answer more than once. One view treats awareness that products will reach the forum through an established distribution channel as sufficient. Another requires conduct purposefully directed at the forum, such as designing for that market, advertising there, or establishing channels for advice to customers there.
No opinion commanding a majority has resolved it, and lower courts continue to apply the framework their circuit has adopted. A practitioner should assume the stricter targeting standard when planning, and should build a record of the defendant's forum-directed conduct rather than relying on where the goods ended up.
Fairness for a foreign defendant, and the federal long-arm
Fair play is assessed through a familiar list: the burden on the defendant, the forum's interest in adjudicating the dispute, the plaintiff's interest in convenient and effective relief, the interstate judicial system's interest in efficient resolution, and the shared interest in furthering substantive social policies. For a defendant abroad the Court has said the unique burdens of defending in a foreign legal system deserve significant weight.
Rule 4(k)(2) supplies a federal long-arm for gaps. On a claim arising under federal law, serving a summons establishes personal jurisdiction where the defendant is not subject to jurisdiction in any state's courts of general jurisdiction and the exercise is consistent with the Constitution and laws of the United States. It matters for defendants whose contacts are spread thinly across the country. A defendant sued on this basis may still argue the case belongs abroad, which is the subject of forum objections and parallel proceedings abroad, and a judgment entered without jurisdiction is exposed under defenses to recognition wherever it later travels. Foreign governments follow the separate scheme in suing a foreign state.
Points to carry away
- General jurisdiction reaches a corporation where it is incorporated or has its main office.
- Specific jurisdiction requires contacts the defendant itself created with the forum.
- The claim must arise out of or relate to those forum contacts.
- Contacts with a plaintiff who lives in the forum are not contacts with the forum.
- The Supreme Court has not settled the stream of commerce question.
- A federal long-arm rule reaches defendants no single state could reach.
Questions readers ask
Does having a subsidiary in the forum create jurisdiction over the parent?
Not by itself. A subsidiary's contacts are attributed to the parent only where the corporate separation is disregarded, either because the subsidiary is an alter ego or because it acts as the parent's agent in a way the forum's law recognizes. The Supreme Court rejected the argument that a subsidiary's substantial in-forum business makes a foreign parent at home there. What often does work is showing the parent itself directed the conduct that gave rise to the claim, which supports specific jurisdiction instead.
Is a website accessible in the forum enough?
Accessibility alone is not. Courts look at whether the defendant targeted the forum: shipping there, pricing in local currency, holding local inventory, advertising to residents, or completing sales into the forum. A passive site that merely posts information rarely supports jurisdiction anywhere. An interactive site through which the defendant repeatedly sold into the forum usually does, for claims arising from those sales. The category labels matter less than the specific evidence of what the defendant aimed at.
Can a defendant lose the objection by participating in the case?
Yes, and it happens more often than it should. Personal jurisdiction is waivable, and the federal rules require the defense to be raised in the first response, either by motion or in the answer. A defendant who moves to dismiss on other grounds without including it has given it up. Filing a counterclaim, or litigating the merits at length before raising the point, can also amount to consent. The objection is cheap to preserve and impossible to recover.
Sources
- Cornell Legal Information Institute — Federal Rule of Civil Procedure 4, SummonsSubdivision (k) on when serving a summons establishes personal jurisdiction, including (k)(2).
- Cornell Legal Information Institute — Federal Rule of Civil Procedure 12, Defenses and ObjectionsThe requirement to raise a jurisdictional objection at the first opportunity or lose it.
- Cornell Legal Information Institute — 28 U.S.C. 1391, Venue GenerallyThe provision treating a non-resident defendant as subject to venue in any district.
- Cornell Legal Information Institute — 28 U.S.C. 1330, Actions Against Foreign StatesThe separate rule under which personal jurisdiction over a foreign state follows service.
- Cornell Legal Information Institute — 28 U.S.C. 1738, State and Territorial Statutes and Judicial ProceedingsWhy a judgment entered without jurisdiction is vulnerable wherever it is later taken.
- HCCH — Convention on the Service Abroad of Judicial and Extrajudicial Documents, full textThe service framework that must be satisfied alongside, and separately from, jurisdiction.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Cross-Border Litigation
Suing a Foreign State: Immunity as the Default
The Foreign Sovereign Immunities Act makes a foreign state immune from the jurisdiction of federal and state courts except as the statute itself provides, and it is the sole basis for obtaining jurisdiction over a foreign state. A foreign state includes its political subdivisions and its agencies and instrumentalities. Exceptions cover waiver, commercial activity, certain expropriations, property in the United States, some domestic torts, and arbitration.
Forum Objections and Parallel Proceedings Abroad
Forum non conveniens permits a court with jurisdiction to dismiss where an adequate alternative forum exists and the balance of private and public interest factors strongly favors trial there. An alternative forum is adequate where the defendant is amenable to process and the remedy is not so unsatisfactory as to be no remedy at all. A foreign plaintiff's choice of forum receives less deference than a domestic plaintiff's.
The Commercial Activity Exception
A foreign state loses immunity where the action is based upon commercial activity carried on in the United States, upon an act performed here in connection with commercial activity elsewhere, or upon an act outside the United States in connection with commercial activity elsewhere that causes a direct effect here. Commercial character is determined by the nature of the conduct rather than its purpose, following the market-player test in Weltover.