University of Notre Dame

Rule 4 and Personal Jurisdiction

November 22, 2023

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Scott Dodson*

State-court personal jurisdiction is regulated intensely by the Fourteenth Amendment’s Due Process Clause, which the Court has famously used to tie state-court personal jurisdiction to state borders.  Although the Fourteenth Amendment doesn’t apply to federal courts, the prevailing wisdom is that federal courts nevertheless are largely confined to the same personal-jurisdiction limits as state courts because of Rule 4(k), which provides that service “establishes personal jurisdiction” in federal court only upon specified conditions, including when the state courts would have personal jurisdiction.  Some commentators have further argued that Rule 4(k) sets a limit on federal-court personal jurisdiction independent of service and applicable to all claims in federal court, even those asserted postsummons.  Courts have begun to adopt this interpretation.  In this Article, I argue against the tide.  Such a broad reading of Rule 4(k) would render it invalid under the Rules Enabling Act.  I advance a different interpretation: Rule 4(k) regulates only service, not personal jurisdiction.  It thus has no applicability to claims asserted without a summons, it has no effect on the scope of personal jurisdiction applicable in federal court, and it is valid under the Rules Enabling Act.  This interpretation opens space for consideration of what controls on federal-court personal jurisdiction exist external to Rule 4(k), and I explore those options.  I also offer guidance to litigants and courts about how, procedurally, to challenge noncompliance with Rule 4(k) in light of its restriction to service.  The end result is a more modest, but more coherent, Rule 4(k).

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©2023 Scott Dodson.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*James Edgar Hervey Chair in Litigation, Geoffrey C. Hazard Jr. Distinguished Professor of Law, and Director of the Center for Litigation and Courts, University of California College of the Law, San Francisco.  I use the epicene singular “they” and its derivatives throughout.