Calder v. Jones
The U.S. Supreme Court in Calder v. Jones held that the "minimum contacts" due process requirement for personal jurisdiction could be satisfied on the basis of the "effects" that out-of-state conduct had in the forum state. The Court held that a California court could assert jurisdiction over a Florida publisher for publishing an article defaming a California plaintiff when the defendant's act was an intentional action expressly aimed at California and that the "brunt of the injury would be felt" by the plaintiff in California.
Although the Calder involved a defamation claim, courts have applied the effects test to other intentional torts, including business torts. Application of the test has, however, been less than uniform. Indeed, courts have "struggled somewhat with Calder's import, recognizing that the case cannot stand for the broad proposition that a foreign act with foreseeable effects in the forum state always gives rise to specific jurisdiction."
Despite this struggle, most courts agree that merely asserting that a defendant knew or should have known that his intentional acts would cause harm in the forum state is not enough to establish jurisdiction under the effects test. Instead, the plaintiff must also "point to contacts which demonstrate that the defendant expressly aimed its tortious conduct at the forum. . . ." For example, the Third Circuit Court of Appeals has held that, to meet the effects test, "the plaintiff must show that the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum." Similarly, in the Ninth Circuit Court of Appeals, the plaintiff must show not only that the defendant "caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state," but also that the defendant "committed an intentional act . . . expressly aimed at the forum state." Indeed, virtually every jurisdiction has held that the Calder effects test requires intentional conduct expressly aimed at or targeting the forum state in addition to the defendant's knowledge that his intentional conduct would cause harm in the forum.
The Tenth Circuit has noted that in dealing with business torts and contract claims, the mere allegation that a defendant's tortious acts have injured a forum resident is not sufficient to establish the constitutionally required minimum contacts. Rather, the jurisdictional question must be determined based on a particularized inquiry as to the extent to which the defendant has purposefully availed itself of the benefits of the forum's laws. In Ast Sports Sci., Inc. v. CLF Distrib. Ltd., the Tenth Circuit confirmed that although the fact that the tortious injury occurs in Colorado may be sufficient to satisfy the first prong of the long-arm statute — that the tort occurred in Colorado, due process still requires that a court determine whether the exercise of jurisdiction is reasonable, which requires analysis of the extent to which the defendant has purposefully availed itself of the benefits of the forum's laws.
While a single act can in certain circumstances support the exercise of personal jurisdiction, in an infringement case, the sending of a cease-and-desist letter into a forum is generally not considered sufficient alone to establish personal jurisdiction under the "effects test."
Application to the Internet
In Panavision v. Toeppen, the court found that when Toeppen, an Illinois defendant, registered Panavision's trademark as his domain name and intended to extract money out Panavision, a California corporation, the effects test was met because Toeppen's act was intentionally calculated to target Panavision in California, and that Panavision suffered the harm in California when it could not use its own trademark as its domain name.
- 465 U.S. 783 (1984) (full-text).
- Id. at 789-90.
- See IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259-60, 261 (3d Cir. 1998) (full-text) (courts must consider Calder in intentional tort cases); Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1077 (10th Cir. 1995) (full-text) ("Courts have also applied Calder to business torts").
- See United States v. Swiss American Bank, Ltd., 274 F.3d 610, 624 n.7 (1st Cir. 2001) (full-text) ("we note that several circuits do not appear to agree as to how to read Calder); IMO Indus., 155 F.3d at 261 (courts applying Calder to non-defamation cases have adopted "a mixture of broad and narrow interpretations").
- Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) (full-text).
- See IMO Indus., 155 F.3d at 265 ("we . . . agree with the conclusion reached by the First, Fourth, Fifth, Eighth, Ninth and Tenth Circuits that jurisdiction under Calder requires more than a finding that the harm caused by the defendant's intentional tort is primarily felt within the forum"); Griffis v. Luban, 646 N.W.2d 527, 534 (Minn. 2002) (full-text) (the U.S. Supreme Court "did make it clear that foreseeability of effects in the forum is not itself enough to justify long-arm jurisdiction").
- IMO Indus., 155 F.3d at 265.
- IMO Indus., 155 F.3d at 266.
- Bancroft, 223 F.3d at 1087.
- See, e.g., Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir. 1999) (full-text) ("Foreseeable injury alone is not sufficient to confer specific jurisdiction, absent the direction of specific acts toward the forum").
- See Far West Capital v. Towne, 46 F.3d 1071, 1079 (10th Cir. 1995) (full-text).
- 514 F.3d 1054, 1060-61 (10th Cir. 2008) ().
- Accessories Ltd. of Maine, Inc. v. Longchamp U.S.A., 170 F.Supp.2d 12, 15 (D. Me. 2001) (full-text).
- 141 F.3d 1316, 1321 (9th Cir. 1998) (full-text).