Omni Capital International, Ltd., and Omni Capital Corporation
(hereafter petitioners), New York corporations, marketed an
investment program involving commodity futures trades on the London
Metals Exchange. Certain investors filed suits (later consolidated)
against petitioners in the Federal District Court for the Eastern
District of Louisiana, charging that petitioners fraudulently
induced them to participate in petitioners' program, in violation
of various federal securities laws. Petitioners impleaded
respondent Rudolf Wolff & Co., a British corporation with
offices in London that was employed by petitioners to handle trades
on the London Exchange, and respondent Gourlay (hereafter
respondents), a United Kingdom citizen and resident who was Wolff's
representative in soliciting petitioners' business. Petitioners
contended that their liability, if any, was caused by respondents'
improper trading activities. While the action was pending,
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,
456 U. S. 353, was
decided, recognizing an implied private cause of action under the
Commodity Exchange Act (CEA), and the plaintiffs in this litigation
amended their complaints to allege violations of that Act. The
District Court dismissed the other securities law claims as
preempted by the CEA, and held that it lacked personal jurisdiction
over respondents because (1) the CEA was silent about service of
process for private causes of action, (2) thus, application of
Louisiana's long-arm statute was required, and (3) that statute's
requirements were not met. The Court of Appeals affirmed.
Held: The District Court lacked personal jurisdiction
over respondents in this federal question litigation under the CEA.
Pp.
484 U. S.
102-111.
(a) The requirement that a federal court have personal
jurisdiction flows from the Due Process Clause of the Fifth
Amendment. However, before a federal court may exercise personal
jurisdiction over a defendant, there must be more than notice to
the defendant and a constitutionally sufficient relationship
between the defendant and the forum. There also must be a basis for
the defendant's amenability to service of summons. Absent consent,
there must be authorization for service of summons on the
defendant. Pp.
484 U. S.
103-104.
Page 484 U. S. 98
(b) Under Federal Rule of Civil Procedure 4(e), a federal court
normally looks either to a federal statute or to the long-arm
statute of the State in which it sits to determine whether an
out-of-state defendant is amenable to service. After the
Curran decision, and while the present litigation was
still pending in the District Court, Congress added § 22 to the
CEA, explicitly authorizing a private cause of action for CEA
violations but not referring to service of process, in contrast to
Congress' explicit authorization of nationwide service of process
in other CEA provisions for other civil actions under the Act. This
contrast, as well as the legislative history, supports the
conclusion that Congress did not intend to provide nationwide
service of process for private actions under the CEA. Nor was
nationwide service implicitly authorized for any implied private
cause of action under the CEA, such as petitioners', that accrued
prior to § 22's effective date. Moreover, the District Court held,
and petitioners concede, that the requirements of Louisiana's
long-arm statute were not met here. Pp.
484 U. S.
104-108.
(c) Even were it within this Court's power, judicial creation of
a common law rule authorizing service of process in this litigation
would be unwise. The strength of the longstanding assumption that
federal courts cannot add to the scope of service of summons
Congress has authorized, and the network of statutory enactments
and judicial decisions tied to that assumption, argue strongly
against devising common law service of process provisions. The
responsibility for creating service of process provisions rests
with those who propose the Federal Rules of Civil Procedure, and
with Congress. Pp.
484 U. S.
108-111.
795 F.2d 415, affirmed.
BLACKMUN, J., delivered the opinion for a unanimous Court.
JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents questions concerning the prerequisites to a
federal court's exercise of
in personam jurisdiction.
Page 484 U. S. 99
I
Petitioners Omni Capital International, Ltd., and Omni Capital
Corporation (collectively Omni), [
Footnote 1] New York corporations, marketed an investment
program involving commodity futures trades on the London Metals
Exchange. Omni employed respondent Rudolf Wolff & Co., Ltd., a
British corporation with its offices in London, as a broker to
handle trades on that Exchange. Respondent James Gourlay, a citizen
and resident of the United Kingdom, served as Wolff's
representative in soliciting this business from Omni.
The United States Internal Revenue Service disallowed income tax
deductions, claimed by the participants in Omni's investment
program, and did so on the ground that the program's commodities
trades on the London Metals Exchange were not bona fide
arm's-length transactions. A number of corporate and individual
investors who participated in Omni's program then sued Omni in four
separate actions in the United States District Court for the
Eastern District of Louisiana. [
Footnote 2] The plaintiffs in each action charged that, by
misrepresenting its tax benefits and future profits, Omni
fraudulently induced them to participate in the investment program.
Omni, in turn, impleaded Wolff and Gourlay, [
Footnote 3]
Page 484 U. S. 100
contending that its liability, if any, was caused by their
improper trading activities.
The procedural history is complex. The original complaints,
filed in 1980 and 1981, charged violations of the Securities
Exchange Act of 1934, ch. 404, 48 Stat. 881, as amended, 15 U.S.C.
§ 78a
et seq. (1982 ed. and Supp. IV); SEC Rule 10b-5, 17
CFR § 240. 10b-5 (1987); and the Securities Act of 1933, 48 Stat.
74, as amended, 15 U.S.C. § 77a
et seq. (1982 ed. and
Supp. IV), and included pendent state law claims. The four cases
were consolidated in the District Court. While they were pending,
this Court decided
Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Curran, 456 U. S. 353
(1982). In
Curran, we recognized an implied private cause
of action under the Commodity Exchange Act (CEA), 42 Stat. 998, as
amended, 7 U.S.C. § 1
et seq. (1982 ed. and Supp. IV). The
plaintiffs accordingly amended their complaints to allege
violations of §§ 4b and 9(b) of the CEA, as amended, 7 U.S.C. §§ 6b
and 13(b).
Wolff and Gourlay moved to dismiss the claims against them for
lack of personal jurisdiction, and, as an additional ground, argued
that the securities law claims failed to state causes of action. In
its initial opinion dated May 13, 1983, the District Court
dismissed the securities law claims as having been preempted by the
CEA, but concluded that it could exercise personal jurisdiction
over Wolff and Gourlay. App. 6. The court reasoned that, in actions
under the CEA,
"Congress intended for U.S. courts to exercise personal
jurisdiction over foreign defendants not present in the United
States to the limits of the due process clause of the Fifth
Amendment."
Id. at 9. Therefore, the court determined, if "the
quality and nature of a foreign defendant's activities . . . in the
United States" support a "finding of fair play and substantial
justice," personal jurisdiction would be proper.
Id. at
9-10. After examining the extent of Wolff's and Gourlay's contacts
with the United States, the District Court concluded it had
personal jurisdiction.
Page 484 U. S. 101
After this initial decision of the District Court, the Fifth
Circuit decided
DeMelo v. Toche Marine, Inc., 711 F.2d
1260 (1983). In
DeMelo, the Court of Appeals concluded
that,
"when a federal question case is based upon a federal statute
that is silent as to service of process, and a state long-arm
statute is therefore utilized to serve an out-of-state defendant,
[Federal Rule of Civil Procedure] 4(e) requires that the state's
standard of amenability to jurisdiction apply."
Id. at 1266. Following that decision by its controlling
court, the District Court granted Wolff's and Gourlay's motions for
reconsideration, noting that the CEA is silent about service of
process for private causes of action. App.19. Upon its
reconsideration, the District Court concluded that, in accord with
DeMelo, "unless jurisdiction can be asserted under the
Louisiana long-arm statute, there is no personal jurisdiction over
Wolff or Gourlay." App. 22. Because, in its view, the requirements
of the Louisiana long-arm statute [
Footnote 4] were not met, the District Court concluded
that it lacked personal jurisdiction over Wolff and Gourlay, and it
directed the entry
Page 484 U. S. 102
of a final judgment dismissing all claims against them.
Id. at 23.
The Fifth Circuit decided the ensuing appeals en banc in the
first instance and, by a 9-to-6 vote, affirmed.
Point Landing,
Inc. v. Omni Capital Int'l, Ltd., 795 F.2d 415 (1986). The
majority started from "the unmalleable principle of law . . . that
federal courts . . . must ground their personal jurisdiction on a
federal statute or rule."
Id. at 423. In the majority's
view, neither the CEA nor the Federal Rules of Civil Procedure
authorized service of process upon Wolff or Gourlay, and therefore
personal jurisdiction over them was lacking. The dissent conceded
that neither the CEA nor Civil Rule 4 provided for service of
process on Wolff and Gourlay, but would have remedied this "bizarre
hiatus in the Rules," 795 F.2d at 428, with an
ad hoc
authorization of service of process on them based on their contacts
with the United States as a whole.
Because of a possible conflict with views of the Sixth Circuit
expressed in
Handley v. Indiana & Michigan Electric
Co., 732 F.2d 1265, 1272 (1984), we granted certiorari to
decide whether, in this federal question litigation arising under
the CEA, the District Court may exercise personal jurisdiction over
Wolff and Gourlay.
II
Omni's primary and fundamental contention is that, in a suit
under the CEA, the only limits on a district court's power to
exercise personal jurisdiction derive from the Due Process Clause
of the Fifth Amendment. The objection of the Court of Appeals, and
of Wolff and Gourlay before this Court, is that, even if an
exercise of personal jurisdiction would comport with that Due
Process Clause, [
Footnote 5]
the District Court cannot
Page 484 U. S. 103
exercise personal jurisdiction over Wolff and Gourlay, because
they are not amenable to service of summons in the absence of a
statute or rule authorizing such service. [
Footnote 6]
Omni attempts to meet this objection in a variety of ways.
First, Omni argues that the District Court may exercise personal
jurisdiction because Wolff and Gourlay have constitutionally
sufficient contacts with the forum and, as well, have notice of the
suits. Second, Omni contends that, even if a rule authorizing
service is a prerequisite to effective service, and thus to the
exercise of personal jurisdiction, Congress implicitly authorized
nationwide service for private causes of action under the CEA.
Third, Omni presses upon us the view of the Fifth Circuit
dissenters that, even if authorization for service of process is
required and cannot be found in a statute or rule, such
authorization should be created by fashioning a remedy to fill a
gap in the Federal Rules of Civil Procedure. We examine these
contentions in turn.
III
A
Omni argues that the jurisdictional limits that Art. III of the
Constitution places on the federal courts relate to subject matter
jurisdiction only. In this view, although Art. III, § 1, leaves it
to Congress to "ordain and establish" inferior federal courts, the
only limits on those courts, once established, in their exercise of
personal jurisdiction, relate to due process. Thus, Omni contends,
the District Court may exercise personal jurisdiction over Wolff
and Gourlay if the Due Process Clause of the Fifth Amendment does
not forbid it.
Page 484 U. S. 104
Omni's argument that Art. III does not itself limit a court's
personal jurisdiction is correct.
"The requirement that a court have personal jurisdiction flows
not from Art. III, but from the Due Process Clause. . . . It
represents a restriction on judicial power, not as a matter of
sovereignty, but as a matter of individual liberty."
Insurance Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U. S. 694,
456 U. S. 702
(1982). Omni's argument fails, however, because there are other
prerequisites to a federal court's exercise of personal
jurisdiction.
Before a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons must be
satisfied.
"[S]ervice of summons is the procedure by which a court having
venue and jurisdiction of the subject matter of the suit asserts
jurisdiction over the person of the party served."
Mississippi Publishing Corp. v. Murphree, 326 U.
S. 438,
326 U. S.
444-445 (1946). Thus, before a court may exercise
personal jurisdiction over a defendant, there must be more than
notice to the defendant and a constitutionally sufficient
relationship between the defendant and the forum. There also must
be a basis for the defendant's amenability to service of summons.
Absent consent, this means there must be authorization for service
of summons on the defendant.
B
The next question, then, is whether there is authorization to
serve summons in this litigation. Today, service of process in a
federal action is covered generally by Rule 4 of the Federal Rules
of Civil Procedure. Rule 4(f) describes where process "may be
served." [
Footnote 7] It
authorizes service in the State
Page 484 U. S. 105
in which the action is brought, or anywhere else authorized by a
federal statute or by the Rules.
The "most obvious reference" of this last provision is to Rule
4(e). [
Footnote 8]
See
D. Currie, Federal Courts 373 (3d ed.1982). The first sentence of
the Rule speaks to the ability to serve summons on an out-of-state
defendant when a federal statute authorizes such service. The
second sentence, as an additional method, authorizes service of
summons "under the circumstances" prescribed in a state statute or
rule. Thus, under Rule 4(e), a federal court normally looks either
to a federal statute or to the long-arm statute of the State in
which it sits to determine whether a defendant is amenable to
service, a prerequisite to its exercise of personal jurisdiction.
[
Footnote 9]
Omni argues that Wolff and Gourlay are amenable to service under
Rule 4(e) because the CEA implicitly "provides for service . . .
upon a party not an inhabitant of or found within the state." Omni
points out that, prior to this Court's recognition in
Curran of an implied private cause of action, all other
civil actions under the CEA explicitly authorized nationwide
service of process.
See § 6c (in a Commodity Futures
Trading Commission (CFTC) action, service authorized "wherever the
defendant may be found"), § 6d(4) (in an action
Page 484 U. S. 106
by a state attorney general, service authorized "wherever the
defendant may be found"), and § 14(d) (in enforcement action by a
beneficiary of a CFTC order, service authorized "anywhere in the
United States") of the CEA, as amended, 7 U.S.C. §§ 13a-1,
13a-2(4), and 18(d). Omni contends that this broad avenue for
service is mandated by the importance of futures trading to the
Nation as a whole. Since this Court concluded that a private right
of action was intended as a "tool for enforcement,"
Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. at
456 U. S. 393,
it must be given the same "dignity" as other enforcement
provisions. Accordingly, Omni contends, nationwide service of
process is also authorized for the implied private cause of action
under the CEA.
Neither the majority nor the dissent in the Court of Appeals
found that the CEA contained an implied provision for nationwide
service of process in a private cause of action. We, too, decline
to draw that inference. After the
Curran decision, while
the present litigation was still pending in the District Court,
Congress enacted the Futures Trading Act of 1982, 96 Stat. 2294.
That Act amended the CEA by adding § 22, 96 Stat. 2322, 7 U.S.C. §
25, which authorizes explicitly a private right of action for a
violation of the CEA. Section 22, however, is silent as to service
of process. This contrasts sharply with the other enforcement
provisions of the CEA, on which Omni asks us to rely. We find it
significant that Congress expressly provided for nationwide service
of process in those sections, but did not do so in the new § 22.
See Russello v. United States, 464 U. S.
16,
464 U. S. 23
(1983). It would appear that Congress knows how to authorize
nationwide service of process when it wants to provide for it. That
Congress failed to do so here argues forcefully that such
authorization was not its intention.
Cf. INS v. Hector,
479 U. S. 85,
479 U. S. 88-91
(1986).
The legislative history also supports the conclusion that
Congress did not intend to provide nationwide service of process
for private actions under the CEA. The House Report
Page 484 U. S. 107
on the Futures Trading Act of 1982 noted:
"The availability of -- . . . private rights of action --
supplements, but does not substitute, for the regulatory and
enforcement program of the CFTC. . . . The Committee fully expects
[it will] not become necessary to rely on private litigants as a
policeman of the Commodity Exchange Act."
H.R.Rep. No. 97-565, pt. 1, p. 57 (1982). Thus, it is
unremarkable that Congress enacted broader service provisions for
CFTC actions than for private actions.
That the new § 22 of the CEA does not provide nationwide service
of process does not end our inquiry, however, because Omni's cause
of action accrued prior to the effective date of that section.
See § 22(d), 7 U.S.C. § 25(d). Strictly speaking, Omni's
argument may be that nationwide service is authorized under the
implied cause of action recognized in
Curran. This
argument, however, is equally without force.
See Gravois v.
Fairchild, [1977-1980 Transfer Binder] CCH Comm. Fut.L.Rep. �
20,706, p. 22,875 (ED La.1978) (no nationwide service of process
for implied private cause of action under CEA). The decision in
Curran gave no consideration to service of process.
Inasmuch as Congress carefully provided for service section by
section in the CEA, we would not automatically graft nationwide
service onto the implied private right of action. Indeed, the CEA's
authorization for nationwide service section by section contrasts
sharply with the service provisions of the securities laws. Each of
those Acts uses a single section to provide for service "wherever
the defendant may be found" for any action under the entire
chapter.
See § 22 of the Securities Act of 1933, 48 Stat.
86, as amended, 15 U.S.C. § 77v, and § 27 of the Securities
Exchange Act of 1934, 48 Stat. 902, as amended, 15 U.S.C. § 78aa.
In any event, now that Congress has enacted a private cause of
action without nationwide service, we have a better perspective on
Congress' view of the role of a private action within the statute
as a whole. We see no reason to take a different position.
Accordingly,
Page 484 U. S. 108
we conclude that a nationwide service provision for a private
action was not implicit in the CEA.
Since the CEA does not authorize service of summons on Wolff and
Gourlay, we look to the second sentence of Rule 4(e), which points
to the long-arm statute of the State in which the District Court
sits -- here, Louisiana. The District Court held that the
requirements of the Louisiana long-arm statute,
see n. 4,
supra, were not met in this litigation. It noted that even
the provision allowing a court to rely on the effects that the
defendant causes within the State was "clearly not applicable,"
because it
"applies only to a defendant who 'regularly does or solicits
business, or engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or services
rendered, in this state.'"
App. 22-23 (quoting La.Rev.Stat.Ann. § 13:3201(d) (West 1968)).
Because the terms of the Louisiana statute were not met, the
District Court considered a due process analysis unnecessary.
Before us, Omni has not contended that Wolff and Gourlay may be
reached under the Louisiana long-arm statute. Indeed, Omni has
conceded that they may not.
See Tr. of Oral Arg. 4. Thus,
neither part of Rule 4(e) authorizes the service of summons on
Wolff and Gourlay.
C
The dissenters in the Court of Appeals argued that, even if
authorization to serve process is necessary and cannot be found in
Rule 4(e), the federal courts should act to fill the "interstices
in the law inadvertently left by legislative enactment" by creating
their own rule authorizing service of process in this litigation.
See 795 F.2d at 431-432. We decline to embark on that
adventure.
As an initial matter, it is unclear at this time whether it is
open to us to fashion a rule authorizing service of process. At
common law, a court lacked authority to issue process outside its
district, and Congress made this same restriction the general rule
when it enacted the Judiciary Act of Sept. 24, 1789, § 11, 1 Stat.
79.
See Robertson v. Railroad
Labor
Page 484 U. S. 109
Board, 268 U. S. 619,
622-623 (1925). Thus, specific legislative authorization of
extraterritorial service of summons was required for a court to
exercise personal jurisdiction over a person outside the district.
Even were we to conclude that the bases for the rule in
Robertson are no longer valid, [
Footnote 10] we would not necessarily have the power
to create service-of-process rules. We would have to decide that
the provisions of Rules 4(e) and 4(f), in authorizing service in
certain circumstances, were not intended to prohibit service in all
other circumstances. We would also have to find adequate authority
for common law rulemaking. [
Footnote 11] We need not decide these questions, however,
since we would not fashion a rule for service in this litigation
even if we had the power to do so.
We would consider it unwise for a court to make its own rule
authorizing service of summons. It seems likely that Congress has
been acting on the assumption that federal courts cannot add to the
scope of service of summons Congress has authorized. This Court in
the past repeatedly has stated that a legislative grant of
authority is necessary.
See, e.g., Georgia v. Pennsylvania R.
Co., 324 U. S. 439,
324 U. S.
467-468 (1945). Indeed, as the dissent in the Court of
Appeals conceded, "the weight of authority, both in the cases and
in the commentary," 795 F.2d at 433, considers statutory
Page 484 U. S. 110
authorization necessary to a federal court's service of summons.
See, e.g., Max Daetwyler Corp. v. Meyer, 762 F.2d 290, 297
(CA3),
cert. denied, 474 U.S. 980 (1985);
Wells Fargo
& Co. v. Wells Fargo Express Co., 556 F.2d 406, 414-416
(CA9 1977); 2 J. Moore, J. Lucas, H. Fink, & C. Thompson,
Moore's Federal Practice � 4.02[3], p. 4-67 (1987); 4 C. Wright
& A. Miller, Federal Practice and Procedure § 1075, p. 302
(1969).
The strength of this longstanding assumption, and the network of
statutory enactments and judicial decisions tied to it, [
Footnote 12] argue strongly against
devising common law service of process provisions at this late
date, for at least two reasons. First, since Congress concededly
has the power to limit service of process, circumspection is called
for in going beyond what Congress has authorized. Second, as
statutes and rules have always provided the measures for service,
courts are inappropriate forums for deciding whether to extend
them. Legislative rulemaking better ensures proper consideration of
a service rule's ramifications within the preexisting structure,
and is more likely to lead to consistent application. [
Footnote 13]
Page 484 U. S. 111
Nothing about this case impels us to a different conclusion. If
we do not create a rule here, the only harm to federal interests is
the inability of a private litigant to bring a CEA action in the
United States against an alien defendant who is not within the
reach of the state long-arm statute. Since the CEA authorizes
broader service of process in other enforcement actions, aliens
cannot consider themselves immune from the Act's provisions. Also,
a British court may be willing to enforce the CEA itself, if Omni
brings suit against Wolff and Gourlay there.
We are not blind to the consequences of the inability to serve
process on Wolff and Gourlay. A narrowly tailored service of
process provision, authorizing service on an alien in a federal
question case when the alien is not amenable to service under the
applicable state long-arm statute, might well serve the ends of the
CEA and other federal statutes. It is not for the federal courts,
however, to create such a rule as a matter of common law. That
responsibility, in our view, better rests with those who propose
the Federal Rules of Civil Procedure, and with Congress.
IV
In summary, the District Court may not exercise jurisdiction
over Wolff and Gourlay without authorization to serve process. That
authorization is not found in either the CEA or the Louisiana
long-arm statute, to which we look under Rule 4(e). We reject the
suggestion that we should create a common law rule authorizing
service of process, since we would consider that action unwise,
even were it within our power.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
The other petitioners are Richard Friedberg and Michael Stern,
officers of Omni, and Northglen Capital Corporation which was named
as a defendant with Omni in three of the four consolidated cases
now before this Court. Petitioners have filed a single brief.
[
Footnote 2]
The plaintiffs were two Louisiana corporations, Point Landing,
Inc., and Point Landing Fuel Corporation, and six individuals,
William S. and Ruby M. Smith, Frank J. and Brenda A. George, and
Dennis M. and Joan Rosenberg. Although all these plaintiffs
technically are respondents here,
see this Court's Rule
19.6, all of them except the Georges have filed a skeletal brief
adopting Omni's brief "as if copied
in extenso." Brief for
Respondents in Support of Petitioners 1.
[
Footnote 3]
In the Point Landing suit, Wolff was named as a defendant. In
that suit, Omni crossclaimed against Wolff and filed a third-party
complaint against Gourlay. In the Smith and George suits, Omni
filed a third-party complaint against both Wolff and Gourlay. In
the Rosenberg suit, no move was made against either Wolff or
Gourlay.
[
Footnote 4]
Louisiana's long-arm statute, then in effect, provided in
relevant part:
"A court may exercise personal jurisdiction over a nonresident,
who acts directly or by an agent, as to a cause of action arising
from the nonresident's"
"(a) transacting any business in this state;"
"(b) contracting to supply services or things in this
state;"
"(c) causing injury or damage by an offense or quasi offense
committed through an act or omission in this state;"
"(d) causing injury or damage in this state by an offense or
quasi offense committed through an act or omission outside of this
state if he regularly does or solicits business, or engages in any
other persistent course of conduct, or derives substantial revenue
from goods used or consumed or services rendered, in this state. .
. ."
La.Rev.Stat.Ann. § 13:3201 (West 968).
Louisiana has amended this statute,
see 1980 La.Acts,
No. 764, § 2, and 1984 La.Acts, No. 398, § 1, codified at
La.Rev.Stat.Ann. § 13:3201 (West Supp.1987), but no party has
argued that the amendments affect the outcome of this litigation.
We therefore do not consider them.
[
Footnote 5]
Under Omni's theory, a federal court could exercise personal
jurisdiction, consistent with the Fifth Amendment, based on an
aggregation of the defendant's contacts with the Nation as a whole,
rather than on its contacts with the State in which the federal
court sits. As was the case in
Asahi Metal Industry Co. v.
Superior Court of Cal., 480 U. S. 102
(1987), "[w]e have no occasion" to consider the constitutional
issues raised by this theory.
Id. at
480 U. S. 113,
n.
[
Footnote 6]
There is no objection to the method of service in this
litigation, the objection is only to amenability to service.
See Point Landing, Inc. v. Omni Capital Int'l, Ltd., 795
F.2d 415, 424 (CA5 1986).
[
Footnote 7]
Rule 4(f) provides:
"All process other than a subpoena may be served anywhere within
the territorial limits of the state in which the district court is
held, and, when authorized by a statute of the United States or by
these rules, beyond the territorial limits of that state."
[
Footnote 8]
Rule 4(e) provides:
"Whenever a statute of the United States or an order of court
thereunder provides for service of a summons, or of a notice, or of
an order in lieu of summons upon a party not an inhabitant of or
found within the state in which the district court is held, service
may be made under the circumstances and in the manner prescribed by
the statute or order, or, if there is no provision therein
prescribing the manner of service, in a manner stated in this rule.
Whenever a statute or rule of court of the state in which the
district court is held provides . . . for service of a summons, or
of a notice, or of an order in lieu of summons upon a party not an
inhabitant of or found within the state . . . service may . . . be
made under the circumstances and in the manner prescribed in the
statute or rule."
[
Footnote 9]
This assumes, of course, that the defendant is not "an
inhabitant of or found within the state," Fed.Rule Civ.Proc. 4(e),
and has not consented to service.
[
Footnote 10]
The successor to the provision of the first Judiciary Act
relating to a district court's ability to serve process was revised
in 1948, 62 Stat. 869, at which time the express territorial
limitation on serving process was dropped.
See 28 U.S.C.
§§ 1391, 1401, 1693, 1695.
See also note following 28
U.S.C. § 112 (1940 ed.) (tracing history of provision prior to 1948
revision). To the extent that the cases cited in
Robertson
rely on principles of territoriality, their force may have been
undercut by the decision in
International Shoe Co. v.
Washington, 326 U. S. 310
(1945), where the Court held that "presence [of the defendant]
within the territorial jurisdiction of a court" was no longer
necessary "to subject a defendant to a judgment
in
personam."
Id. at 316. We express no view as to
continuing validity of
Robertson's rationales.
[
Footnote 11]
See Petrol Shipping Corp. v. Kingdom of Greece Ministry of
Commerce, Purchase Directorate, 360 F.2d 103, 107-109 (CA2)
(discussing court's authority to fashion an
ad hoc rule to
govern method of service),
cert. denied, 385 U.S. 931
(1966).
[
Footnote 12]
Presumably acting on this widespread understanding that federal
courts may serve process nationwide only when a federal statute
authorizes such service, Congress has carefully provided for that
kind of service of process when it so desired.
See 2 J.
Moore, J. Lucas, H. Fink & C. Thompson, Moore's Federal
Practice � 4.42[2. - 1], pp. 4-386 to 4-391 (1987) (listing over 15
statutes).
[
Footnote 13]
The legislative history of the Futures Trading Act of 1986, 100
Stat. 3556, provides an example why courts should not construct
service of process rules
ad hoc, even if they have the
power to do so. Section 103 of that Act, 100 Stat. 3557, 7 U.S.C. §
15 (1982 ed., Supp. IV), amended the CEA to allow the CFTC to serve
subpoenas outside the United States in the manner prescribed by the
Federal Rules of Civil Procedure. The Conference Committee,
however, expressed concern about the possibility of disrupting the
Nation's foreign policy objectives, and stated a preference that
the new power be exercised with circumspection.
See H.
Conf. Rep. No. 99-995, pp. 21-22 (1986). We also note that, with
this amendment of the CEA, Congress declined still another
opportunity to authorize nationwide service of process for a
private action under the CEA.