Metropolitan Life Insurance Company v. Robertson-Ceco Corp., United Dominion Industries, Inc.

WALKER, Circuit Judge,

dissenting:

The majority’s adoption of a bifurcated personal jurisdiction test, which extends to the general jurisdiction context the Supreme Court’s holdings in the specific jurisdiction cases of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 , 100 S.Ct. 559 , 62 L.Ed.2d 490 (1980), and Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 , 107 S.Ct. 1026 , 94 L.Ed.2d 92 (1987), and our holding in A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76 (2d Cir.1993), erodes the doctrinal foundation established in International Shoe Co. v. Washington, 326 U.S. 310 , 66 S.Ct. 154, 90 L.Ed. 95 (1945). Shortly after the decision in International Shoe, the Supreme Court decided Gulf Oil Corp. v. Gilbert, 330 U.S. 501 , 67 S.Ct. 839 , 91 L.Ed. 1055 (1947), which established the doctrine of forum non conveniens whereby a court may dismiss or transfer a case because a forum is inconvenient notwithstanding that the court has in personam jurisdiction over the defendant. It is the doctrine of forum non conve-niens that should govern whether this suit stays in Vermont, not the doctrine of general personal jurisdiction. Because the majority brushes aside the central tenet of jurisdictional due process established in International Shoe by allowing the interests of the plaintiff and of the forum to displace the liberty interests of the defendant, I respectfully dissent.

*577 The modern constitutional due process standard for the exercise of personal jurisdiction over a non-present defendant was first pronounced in International Shoe. That a court must have personal jurisdiction flows from the Due Process Clause of the Fifth Amendment, which “requires only that ... a defendant ... have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe, 326 U.S. at 316 , 66 S.Ct. at 158 (citation omitted). The Supreme Court’s opinion in International Shoe, which implicated only the interests of the defendant and not the interests of the plaintiff or of the forum state, made it clear that whether due process is satisfied turns exclusively on the fairness to the defendant in being made to defend a suit in a particular forum.

The majority’s holding is, in part, an accommodation of the Supreme Court’s more recent jurisprudence which reconfigures the jurisdictional underpinning of International Shoe. Thirty-five years after the Supreme Court hailed “minimum contacts” as the constitutional touchstone of the due process analysis, it espoused, albeit in dicta, an additional due process consideration concerning the protection of interstate federalism. World-Wide Volkswagen, 444 U.S. at 292-93 , 100 S.Ct. at 564-65 . This supplemental function of due process is the precursor to the majority’s “reasonableness” inquiry in the present case. Only two years later, however, in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 , 102 S.Ct. 2099 , 72 L.Ed.2d 492 (1982), the Supreme Court reaffirmed its earlier course, recognizing that the personal jurisdiction requirement “represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty,” id. at 702 , 102 S.Ct. at 2104 (footnote omitted), and explaining that “[t]he restriction on state sovereign power described in World-Wide Volkswagen Corp. ... must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause,” id. at 702-03 n. 10, 102 S.Ct. at 2105 n. 10. In spite of this reassertion, in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 , 105 S.Ct. 2174, 2184-85 , 85 L.Ed.2d 528 (1985), and later in Asahi, 480 U.S. at 113-15 , 107 S.Ct. at 1032-34 , the Supreme Court doubled-back to its holding in World-Wide Volkswagen by defining the test for specific jurisdiction to include both a “minimum contacts” and a “reasonableness” component. In other words, the concept of “traditional notions of fair play and substantive justice,” which was defined in International Shoe only by the “contacts” of- the defendant with the forum state, has been transformed into the notion of reasonableness apart from the contacts.

In the wake of Burger King and Asahi, we are bound to adhere to the Supreme Court’s adoption of a reasonableness inquiry in the specific jurisdiction context. In the general jurisdiction context, however, we are not so bound. I believe that the Supreme Court’s silence (except arguably in dicta) regarding the application of a reasonableness test in the general jurisdiction context should not be construed as evidencing the Court’s desire to erode the half-century-old doctrine of International Shoe. The majority’s holding today requires courts to consider interests beyond the defendant’s interests, which are the only interests that require consideration under International Shoe. Unless and until the Supreme Court instructs us in a general jurisdiction case that interests other than those of the defendant are implicated by due process in the personal jurisdiction analysis, we should not rush to make them so. I believe that these ancillary interests, which have nothing to do with whether it is fair and just for a foreign defendant to be haled into an out-of-state court, are properly accounted for under the doctrine of forum non conveniens.

The fact that other circuits have chosen the cómese embarked on by the majority, if anything, reinforces my concerns. The sprouting like weeds of multi-pronged tests for the reasonableness inquiry in the circuits in both specific and general jurisdiction cases has left this legal garden in disarray. See, e.g., Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F.3d 848, 851-53 (9th Cir.1993) (bifurcated test that employs seven-factor reasonableness inquiry); Gould v. P.T. Krakatau Steel, 957 F.2d 573, 576 (8th Cir.) (unequally weighted five-factor balancing *578 test), cert. denied, 506 U.S. 908 , 113 S.Ct. 304 , 121 L.Ed.2d 227 (1992); Theunissen v. Matthews, 935 F.2d 1454, 1460-61 (6th Cir.1991) (three-pronged balancing test in which third factor contains a five-factor sub-balancing test for reasonableness); Donatelli v. National Hockey League, 893 F.2d 459, 465 (1st Cir.1990) (two-tiered test in which second tier, which considers “Gestalt” factors measuring reasonableness, is not reached absent minimum contacts); Bearry v. Beech Aircraft Corp., 818 F.2d 370 (5th Cir.1987) (bifurcated test that includes four-factor reasonableness evaluation). That the reasonableness test is inherently discretionary cannot be disputed, and from today forward, in this circuit there can be no certainty for the practitioner as to the presence or absence of personal jurisdiction over the out-of-state defendant until the matter is litigated.

Although I agree that this case is not one properly tried in Vermont, I believe that this issue is suitably resolved on a motion for dismissal or removal under forum non conve-niens rather than as a matter of in personam jurisdiction. Accordingly, I respectfully dissent.