U.S. Federal Rule of Civil Procedure 4(k)(2)

For the past couple of weeks, I have been reading intently on one American rule of federal civil procedure – commonly referred to as the federal long-arm statute.

The rule is from the year 1993, so it is 18 years old already. Like several prominent statutes passed by Congress in that era, the rule is meant to remedy some problem created by a Supreme Court decision that went a different way than what many people thought the real rule was. (The decision that the rule overturned was the Omni case from 1987; similar to how some of the 1991 Civil Rights Act amendments overturned EEOC v. Arabian American Oil Company. But that’s all just an aside.)

To meet the rule, which has to do with in personam jurisdiction over a foreign defendant in U.S. federal courts, the plaintiff has to establish three things:

1) a “cause of action arising under federal law”. This means, practically, any claim except those that rely on state law; [one point to consider, however, is that the note to Rule 4(k)(2) does say the rule would not apply in cases of diversity and the related alienage provisions. It does point out that the rule can be used in instances of supplemental jurisdiction, and is silent about when supplemental jurisdiction is the basis of the claim on which the rule is being invoked.]

2) the foreign defendant cannot be subject to jurisdiction in any state; and

3) the defendant’s contacts with the United States as a whole meet the requirements of due process. (That is, that the defendant has “minimum contacts” necessary for jurisdiction when you analyze across all the contacts with the United States, not just any one state’s jurisdictional rules.)

I believe the reason the rule does not have a lot of case law behind it is that most foreign defendants haled in to U.S. courts have minimum contact with at least one state. But what happens when you are up against the slick lawyer who wants to argue every objection, no matter how frivolous? Well, this is where Rule 4(k)(2) must come in.

“An alien [foreign defendant] may be sued in any district.” 28 U.S.C. section 1391(d). But the alien has to be subject to in personam jurisdiction in the state where the federal district court sits. As I say, I think in most instances where one of the defendants is foreign, the minimum contacts are present in the state where the defendant is being sued. But what happens when the other side is saying, “no no, not here!” So it can’t be State A, and it can’t be State B. Let’s see, there are fifty states, so I suppose one method is to go through all fifty. What some courts seem to do, though, is say, “OK, not State A. Then defendant, what State?” And if the other side can’t name a state, then the court uses the Rule 4(k)(2). (Again, the plaintiff side has to be able to show minimum contacts with the United States as a whole.)

I suppose if the other side names a state, then the case may be transferred there, or it might stay right where it is, since the federal system allows aliens to be sued in any district. I haven’t come across a published case where that it is an issue, which is, like I said, what leads me to believe that this whole dodge-the-jurisdiction issue isn’t really played out except with the hot shot attorneys.

We seem to live in a country where people want to refight everything these days. We had an election in 2008, and the Congressmen (mostly men!) fight every little administrative appointment and issue as if Barack Obama didn’t get elected. We make social compacts with our elderly citizens that we will cover substantially all their medical costs at age 65, then turn around and make specious arguments that we can’t afford to. We pass bills that are signed by the President, and then someone goes to court to say their state should be exempt–as if that wasn’t something already decided in 1789. With a re-argument in the period 1861-1865.

For the life of me, I don’t understand why people want to re-argue what is clearly settled. But I guess you don’t get to bill that way if you don’t.

Oh, and by the way: For the attorneys who read me via search engines, remember: do your own homework! This is a blog, and nothing here is meant as anything more than my talking about legal topics, usually in the context of the sad state of lawyering in the contemporary era.

You would think that a rule as important as one having to do with in personam jurisdiction, and that’s 18 years old, would have a lot of cases and commentary connected to it.