Burnham v. Superior Court,
495 U.S. 604 (1990)

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U.S. Supreme Court

Burnham v. Superior Court, 495 U.S. 604 (1990)

Burnham v. Superior Court of California, County of Marin

No. 89-44

Argued Feb. 28, 1990

Decided May 29, 1990

495 U.S. 604


During a trip to California to conduct business and visit his children, petitioner Burnham, a New Jersey resident, was served with a California court summons and his estranged wife's divorce petition. The California Superior Court denied his motion to quash the service of process, and the State Court of Appeal denied mandamus relief, rejecting his contention that the Due Process Clause of the Fourteenth Amendment prohibited California courts from asserting jurisdiction over him because he lacked "minimum contacts" with the State. The latter court held it to be a valid predicate for in personam jurisdiction that he was personally served while present in the forum State.

Held: The judgment is affirmed.

Justice SCALIA, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY, concluded in Parts II-A, II-B, and II-C that the Due Process Clause does not deny a State's courts jurisdiction over a nonresident, who was personally served with process while temporarily in that State, in a suit unrelated to his activities in the State. Pp. 495 U. S. 2-12.

(a) To determine whether the assertion of personal jurisdiction is consistent with due process, this Court has long relied on the principles traditionally followed by American courts in marking out the territorial limits of each State's authority. See Pennoyer v. Neff, 95 U. S. 714, 95 U. S. 722. The classic expression of that criterion appeared in International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 316, which held that a state court's assertion of personal jurisdiction must not violate "traditional notions of fair play and substantial justice." Pp. 495 U. S. 608-610.

(b) A formidable body of precedent, stretching from common law antecedents through decisions at or near the crucial time of the Fourteenth Amendment's adoption to many recent cases, reflects the near-unanimous view that service of process confers state court jurisdiction over a physically present nonresident, regardless of whether he was only briefly in the State or whether the cause of action is related to his activities there. Pp. 495 U. S. 610-616.

(c) Burnham's contention that, in the absence of "continuous and systematic" contacts with the forum, a nonresident defendant can be subjected

Page 495 U. S. 605

to judgment only as to matters that arise out of or relate to his contacts with the forum misreads this Court's decisions applying that standard. The standard was developed by analogy to the traditional "physical presence" requirement as a means of evaluating novel state procedures designed to do away with that requirement with respect to in personam jurisdiction over absent defendants. Nothing in International Shoe or the subsequent cases supports the proposition that a defendant's presence in the forum is not only unnecessary to validate such novel assertions of jurisdiction, but is itself no longer sufficient to establish jurisdiction. Pp. 495 U. S. 616-619.

Justice SCALIA, joined by THE CHIEF JUSTICE and Justice KENNEDY, concluded in Parts II-D and III that:

1. Shaffer v. Heitner, 433 U. S. 186 -- which applied the jurisdictional rules developed under International Shoe to invalidate a Delaware court's assertion of quasi in rem jurisdiction over absent defendants whose sole contact with the State (ownership of property) was unrelated to the suit -- does not support Burnham's position. When read in context, Shaffer's statement that "all assertions of state court jurisdiction must be evaluated according to the [International Shoe] standards," id. at 433 U. S. 212, means only that quasi in rem jurisdiction, like other forms of in personam jurisdiction over absent defendants, must satisfy the litigation-relatedness requirement. Nothing in Shaffer compels the conclusion that physically present defendants must be treated identically to absent ones or expands the "minimum contacts" requirement beyond situations involving the latter persons. Pp. 495 U. S. 619-622.

2. The proposal of Justice BRENNAN's concurrence to apply "contemporary notions of due process" to the constitutional analysis constitutes an outright break with the International Shoe standard, and, without authority, seeks to measure state court jurisdiction not only against traditional doctrines and current practice, but also against each Justice's subjective assessment of what is fair and just. In effect, the proposed standard amounts to a "totality of the circumstances" test, guaranteeing uncertainty and unnecessary litigation over the preliminary issue of the forum's competence. Pp. 495 U. S. 622-627.

Justice WHITE concluded that the traditionally accepted rule allowing jurisdiction to be obtained over a nonresident by personal service in the forum State cannot be invalidated absent a showing that, as a general proposition, it is so arbitrary and lacking in common sense in so many instances that it should be held violative of due process in every case. Until such a difficult showing is made, claims in individual cases that the rule would operate unfairly as applied to the particular nonresident involved need not be entertained, at least in the usual instance where presence in the forum State is intentional. P. 495 U. S. 628.

Page 495 U. S. 606

Justice BRENNAN, joined by Justice MARSHALL, Justice BLACKMUN, and Justice O'CONNOR, although agreeing that the traditional "transient jurisdiction" rule is generally valid, concluded that historical pedigree, although important, is not the only factor to be taken into account in establishing whether a jurisdictional rule satisfies due process, and that an independent inquiry into the fairness of the prevailing in-State service rule must be undertaken. Pp. 495 U. S. 628-640.

(a) Reliance solely on historical precedent is foreclosed by International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 316, and Shaffer v. Heitner, 433 U. S. 186, 433 U. S. 212, which demonstrate that all rules of state court jurisdiction, even ancient ones such as transient jurisdiction, must satisfy contemporary notions of due process. While Shaffer's holding may have been limited to quasi in rem jurisdiction, its mode of analysis -- which discarded an "ancient form without substantial modern justification" -- was not. Minimum contacts analysis represents a far more sensible construct for the exercise of state court jurisdiction. Pp. 495 U. S. 629-633.

(b) The transient jurisdiction rule will generally satisfy due process requirements. Tradition, although alone not dispositive, is relevant, because the fact that American courts have announced the rule since the latter part of the 19th century provides a defendant voluntarily present in a particular State today with clear notice that he is subject to suit in that forum. Thus, the rule is consistent with reasonable expectations, and is entitled to a strong presumption that it comports with due process. Moreover, by visiting the forum State, a transient defendant actually avails himself of significant benefits provided by the State: police, fire, and emergency services, the freedom to travel its roads and waterways, the enjoyment of the fruits of its economy, the protection of its laws, and the right of access to its courts. Without transient jurisdiction, the latter right would create an asymmetry, since a transient would have the full benefit of the power of the State's courts as a plaintiff while retaining immunity from their authority as a defendant. Furthermore, the potential burdens on a transient defendant are slight in light of modern transportation and communications methods, and any burdens that do arise can be ameliorated by a variety of procedural devices. Pp. 495 U. S. 633-640.

Justice STEVENS concluded that the historical evidence, a persisting consensus, considerations of fairness, and common sense all indicated that the judgment should be affirmed. P. 495 U. S. 640.

SCALIA, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., and KENNEDY, J., joined, and in which

Page 495 U. S. 607

WHITE, J., joined as to Parts I, II-A, II-B, and II-C. WHITE, J., filed an opinion concurring in part and concurring in the judgment, post, p. 495 U. S. 628. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined, post, p. 495 U. S. 628. STEVENS, J., filed an opinion concurring in the judgment, post, p. 495 U. S. 640.

Primary Holding

A state can have personal jurisdiction over non-residents based solely on their physical presence in the state when process is served.


After Burnham and his wife separated, she moved to California with their children. Burnham remained in New Jersey but traveled to California for business. During one of these trips, he visited San Francisco to see his children. His wife had decided to file for divorce in California state court, meanwhile, and she served him with a summons and a copy of her divorce petition when he returned one of his children to her home.

Burnham argued that personal jurisdiction was improper because he did not have minimum contacts with the state, but the California courts ruled that it was proper based on his physical presence when he was served.



  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Anthony M. Kennedy
  • Byron Raymond White

The legal tradition long has held that state courts have jurisdiction over non-residents who are physically present there. The tests of minimum contacts related to the subject matter of the dispute or continuous and systematic contacts do not need to be applied. They are relevant only when the defendant is served with process when outside the forum state.


  • Byron Raymond White (Author)

This is such a long-standing rule that it would be very difficult for a court to strike it down, either facially or as applied.


  • William Joseph Brennan, Jr. (Author)
  • Thurgood Marshall
  • Harry Andrew Blackmun
  • Sandra Day O'Connor

The outcome in this case is correct, but the principle should not be found to be valid simply because it has endured for a long time. Instead, it is valid because it does not conflict with due process requirements of fair play and substantial justice.


  • John Paul Stevens (Author)

This is a fairly straightforward decision because all of the avenues of analysis point toward the same result, whether they are based on history or more modern concerns.

Case Commentary

There is an exception to the validity of tag jurisdiction when someone is fraudulently induced to enter a state for the purpose of serving process.

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