For several decades, the lower courts have struggled with questions of when personal jurisdiction is constitutionally proper over foreign manufacturers with limited to essentially non-existent contacts with a forum state. Much of that confusion stems from the Supreme Court’s 1987 Asahi Metal Industry Co. decision. Asahi should have clarified the rule, but its 4-4 split has led to divergent views among the courts. In some courts, mere foreseeability that a product might end up in a state could result in jurisdiction, while other courts require more purposeful conduct directed at the state in question. The complexity of the issue has, if anything, increased over the years -- new ways of marketing and distributing products through the internet and other channels, probably unanticipated 25 years ago, and certainly unanticipated at the time of the Framing, are now commonplace.

In 2011 the Supreme Court issued a decision that could have resolved the issue, but which seems to have had the opposite effect. In J. McIntyre Machinery, Ltd. v. Nicastro, the Court reversed 6-3 a New Jersey Supreme Court decision finding that jurisdiction was constitutionally permissible over a European manufacturer who had not advertised in, sent products to, or targeted New Jersey in any meaningful way. Unfortunately, while agreeing on the judgment, the Justices split on the rationale, which has left the lower courts uncertain as to what rule governs.

That confusion is exemplified in a recent decision from the U.S. District Court for the Western District of Louisiana, in Graham v. Hamilton, No. 3:11-609, 2012 WL 893748 (W.D. La. March 15, 2012). The court found jurisdiction proper over a defendant whose only connection to Louisiana seems to be the foreseeability notion rejected by the judgment in McIntyre, the mere knowledge that its products might somehow end up on the bayou. In reaching that conclusion, the court acknowledged the existence of a circuit split, confusion among Fifth Circuit district courts over whether circuit precedent survived McIntyre, and disagreement among judges within that district.

The essential takeaway is that the jurisdictional confusion continues, and if anything has gotten worse as McIntyre adds an additional layer to the analysis.