The “power theory” of jurisdiction suggests that a state has jurisdiction over persons found within the territorial limits of that state. This idea is intuitive, but like all legal concepts, there are some hard cases that call for a more nuanced definition. If a person merely flies over a state in an airplane (therefore, the person is within the territorial limits), for example, is that person subject to the jurisdiction of that state? Interestingly, there are situations where that person should not be subject to the jurisdiction of the state even when she is found within the state’s territorial limits.
Grace v. MacArthur
In Grace v. MacArthur, 170 F.Supp. 442 (E.D. Ark. 1959), a man was flying on a non-stop flight from Tennessee to Texas. While the plane was over Arkansas, he was served with a summons from, and complaint filed in, the federal court of Arkansas. He filed a motion to dismiss the complaint for lack of jurisdiction over his person, but the court held that because he was served while in a plane over Arkansas that he was within the “territorial limits” of the court; therefore, he was subject to the jurisdiction of the court in Arkansas. (It appears that the ruling was not appealed.) All parties in the case accepted that the territorial limits of the state extend so high as to include airplanes flying over the state.
Blind application of the power theory would lead the court to conclude that a person within the territorial limits of a state is subject to the jurisdiction of that state, however, there are plenty of exceptions to this rule. In this case, the court erred by not examining the reasons why the defendant was within the territorial limits of the state. This blog argues that if the court had examined whether the defendant had purposely availed himself of a privilege granted by Arkansas, then the court would have recognized that he had not done so, and therefore should not be subject to the jurisdiction of the Arkansas courts.
Territorial limits is the first analytical step; purposefully availing oneself is the second step
Generally speaking, a state has jurisdiction over persons and property found within its territorial limits. Pennoyer v. Neff, 95 U.S. 714 (1877). This is a simple concept based on the “power theory” of sovereignty and jurisdiction: a state has power over the people and property found within the state, and a state does not have power over people and property found in other states. A state does not have power over all people found within its territorial limits, however. The fraudulent inducement doctrine and diplomatic immunity are two examples under which a state does not have jurisdiction over persons found within its territorial limits.
These exceptions can be explained with the purposeful availment doctrine: “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235 (1958). In other words, if a person purposely avails herself of the state’s grant of privilege to enter the state, then she is subject to the jurisdiction of the state. The purposeful availment doctrine is normally applied to cases that involve jurisdiction over a corporation or a person that was not personally served within the state. Justice Brennan applied this concept to transient jurisdiction in Burnham v. Superior Court of California, 495 U.S. 604, 637 (1990) (Brennan, J., concurring) when he stated that “By visiting the forum State, a transient defendant actually avails himself of significant benefits provided by the State.” (Internal quotes and citation removed.) Conversely, if she does not 1) purposely avail 2) herself of the 3) privilege to enter granted by the state, then she is not subject to the state’s jurisdiction over her person.
In addition to explaining the fraudulent inducement and diplomatic exceptions to jurisdiction, the purposeful availment doctrine explains why the Arkansas court should not have exercised jurisdiction over the defendant in Grace v. MacArthur even though the he was within the territorial limits of the state.
The purposeful availment doctrine explains the fraudulent inducement cases
A state normally has jurisdiction over a person found within its territorial limits, but the state does not have jurisdiction over a person that was fraudulently induced into the territorial limits. In Wyman v. Newhouse, 93 F.2d 313 (2d Cir. 1937), for example, the defendant was fraudulently induced to fly to Florida by his former lover for the sole purpose of meeting her. The former lover wanted the defendant to travel to Florida simply so she could serve him with a lawsuit in Florida, and the court held that jurisdiction over a person that is gained by fraud “is null and void.” The fraudulent inducement doctrine fits well with the purposeful availment doctrine. When the defendant’s sole purpose for being in the state is fraudulently obtained, then the fraud negates the purpose in purposely availing oneself of the privilege of entering the state. Since the sole purpose for entering the state is negated, the defendant is not logically purposely availing herself.
This is easier to see when one compares Wyman to a case in which the court refused to apply the fraudulent inducement doctrine. In Schwarz v. Artcraft Silk Hosiery Mills, 110 F.2d 465 (2d Cir. 1940), the serving party arranged a meeting with the defendant in New York simply so the defendant could be served with a lawsuit in New York. The defendant was already in New York state, however, at a summer house, and the court held that because he was within the territorial limits for a purpose other than the meeting, he was not fraudulently induced into the territorial limits of the state. Again, the purposeful availment doctrine can explain this holding. While the fraud of the plaintiff did negate one of the purposes why the defendant was within the territorial limits of the state, it did not negate all of the purposes. Since the defendant was still purposely availing himself of the privilege of entering the state, he was subject to the court’s jurisdiction over his person.
In E/M Lubricants, Inc. v. Microfral, 91 F.R.D. 235 (N.D. Ill. 1981), the court applied the fraudulent inducement doctrine even though there was no obvious fraud. In this case, the serving party agreed to negotiations in good faith, but changed its mind and decided to sue after the plans were made, but before the defendant arrived in the state. The court held that the serving party had a duty to tell the defendant about its changed intentions and not doing so was a fraud upon the defendant. “In circumstances such as these, where plaintiff contributes to defendant’s decision to enter the jurisdiction to negotiate a settlement and defendant enters the jurisdiction for that purpose only, the fraudulent enticement doctrine should apply.” Calling the plaintiff’s actions “fraud” is tenuous, but the purposeful availment doctrine explains the case very well. The defendant’s sole purpose for being in the state was to negotiate a settlement. When the plaintiff changed its mind and decided against settlement negotiations, the defendant’s sole purpose for being in the state was negated. With his purpose negated, he was not logically purposely availing himself of the privilege of entering the state, therefore the court could not exercise jurisdiction over his person.
The fraudulent inducement cases illustrate that courts must examine the reasons why the defendant was found within the territorial limits of the state before finding jurisdiction over the defendant’s person. If the purpose is negated, or otherwise not due to the state’s grant of the privilege to enter the state, then the defendant has not purposely availed herself, and therefore is not subject to jurisdiction over her person. Furthermore, synthesizing purposeful availment with fraudulent inducement is perfectly consistent with Justice Scalia’s plurality opinion in Burnham v. Superior Court of California, 495 U.S. 604, 613 (1990). In Burnham, the plurality held that the power theory was still the law of the land, but noted that there were some cases where a state could not exercise jurisdiction over persons who were otherwise validly served with a summons while within the territory of the state (citations removed):
Most States, moreover, had statutes or common-law rules that exempted from service of process individuals who were brought into the forum by force or fraud or who were there as a party or witness in unrelated judicial proceedings. These exceptions obviously rested upon the premise that service of process conferred jurisdiction.
A state does not have jurisdiction over the person of a diplomat even when the diplomat is within the territory of the state
A state normally has jurisdiction over persons found within its territorial limits, but it usually does not have jurisdiction over diplomats found within its territorial limits. Article 31 of the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, says that diplomats are exempt from the jurisdiction of the receiving state. The purposeful availment doctrine explains why: a diplomat is found within the territorial limits of the receiving state for the benefit of her home state, not to purposely avail herself of the privilege of entering the state. In reality, because she is the agent of her home state, it is the sending state that is purposely availing itself of the privilege of entering the receiving state.
One could view the diplomatic immunities of the Vienna Convention as arising solely from the power theory: the sovereigns originally had jurisdiction over the diplomatic persons but ceded that jurisdiction through the positive law of the treaty. The Convention, however, was merely a codification of existing customary international law. See, e.g., In re Biaz, 135 U.S. 403, 411 (1890). Jurisdiction over diplomats is not a power that sovereigns relinquished through treaty; it is a power that they did not have under customary international law and the purposeful availment doctrine can explain why they did not have the power.
Further supporting the synthesis of the purposeful availment doctrine with diplomatic immunity is the fact that the Convention allows the receiving state to exercise jurisdiction over the diplomat in a few situations. A diplomat can be subject to the jurisdiction of the receiving state, for example, if the diplomat is involved in a commercial transaction “outside his official functions.” When the diplomat executes a commercial transaction for her own benefit, then she is purposely availing herself of the privileges of being within the state and “invoking the benefits and protections of its laws.” (Hanson v. Denckla, supra.) For that commercial transaction, the diplomat is subject to jurisdiction over her person.
Again, the purposeful availment doctrine explains when a court can exercise jurisdiction over persons found within the territorial limits of the state.
An involuntary act is not enough to satisfy purposeful availment
A potential defect with this theory is that if the airplane from Grace crashed in Arkansas, or if the plane made a forced landing in Arkansas, then the defendant would be able to use Arkansas law (and courts) to enforce any of his rights that may have been infringed. This defect does not exist, however, because the defendant would not have been purposefully availing himself of Arkansas law because a crash or forced landing is an involuntary act.
The classic example illustrating how an involuntary act is not a purposeful act involves a sleeping passenger in a car. Without the passenger’s knowledge or consent, the driver of the car purposely drove into a cemetery without the consent of the owner, thus committing trespass. Trespass is an intent-based crime (or tort) and requires that the accused purposely committed the act. The driver of the car purposely committed an act that resulted in trespass, but the sleeping passenger did not purposely commit any such act. The passenger was present in the cemetery, without the consent of the owner, but the passenger did not purposely enter the cemetery, therefore the passenger did not commit trespass. The involuntary act negated the purpose element of the crime.
If the plane crashed or landed in Arkansas, it would not have been through the purposeful act of the defendant. The involuntary act (being on the ground in Arkansas) would negate the purposeful element of purposeful availment.
If this were not true, then both the fraudulent inducement doctrine and diplomatic immunity would be invalid. With the fraudulent inducement doctrine, the defendant still enjoys the protection of the laws in the host state. In Wyman v. Newhouse, supra, if the defendant had been hit by a car, he could have still sued for negligence. Similarly, even though diplomats may not be sued, they may sue others in their host country.
If a person is found within the territorial limits of a state through an involuntary act, then the lack of a purposeful act negates the purpose element in purposeful availment, therefore the courts of the host state may not exercise jurisdiction over her person.
No jurisdiction over the defendant because he did not purposely avail himself of Arkansas law
The Arkansas court in Grace v. MacArthur should have only subjected the defendant to jurisdiction over his person if the court had found that he was within the territorial limits of Arkansas because he was purposely availing himself of Arkansas’s grant of the privilege to be in Arkansas. He was clearly within the territorial limits of Arkansas because all of the airspace above Arkansas is within the state’s territorial limits, but he was not in the state due to Arkansas having granted him the privilege–he was in Arkansas due to the federal government having granted him the privilege through its sovereignty over the navigable airspace. In fact, Arkansas was without the power to deny him entry into the state.
The defendant was on an airplane that was passing over Arkansas by use of the navigable airways of the United States. The navigable airways are under the exclusive jurisdiction of the federal government, therefore, he was purposely availing himself of a privilege granted by the federal government, not the state of Arkansas. Under 49 U.S.C. sec. 40103(a)(1), the “United States Government has exclusive sovereignty of airspace of the United States.” Paragraph (a)(2) grants the privilege to travel through the navigable airspace: “A citizen of the United States has a public right of transit through the navigable airspace.” The defendant in Grace was only within the territorial limits of Arkansas because the federal government granted him the privilege to enter the state. He was not purposely availing himself of Arkansas’s grant of the privilege to enter Arkansas, therefore Arkansas has no jurisdiction over his person.
As a final note, this theory is not inconsistent with any of the opinions in Burnham, including Justice Brennan’s concurrence. See 495 U.S. at 637 n.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.”)
This is a rare situation
This result makes intuitive sense: it would be odd to say that a person flying non-stop from Maine to Southern California would be subject to the jurisdiction of so many interposed state courts. On the other hand, it does make sense that the defendant would be subject to the jurisdiction of Maine, California, and the federal government.
My thanks go to Professor Henry H. Perritt, Jr. for his help.
