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SEQ CHAPTER \h \r 1ISSUES
OF PERSONAL JURISDICTION - KEEPING A FOREIGN DEFENDANT
IN THIS FORUM
By: Thomas J. Curcio, Esquire
Dunn, Curcio, Keating & Bracken, P.C.
221 South Alfred Street
Alexandria, Virginia 22314
(703) 836-9000
INTRODUCTION
A common obstacle encountered
in a products liability case for the plaintiff’s attorney
is obtaining personal jurisdiction over a foreign defendant.
This is especially so in the case involving the failure of
a component part which was incorporated into the product by
the products manufacturer. The purpose of this outline is
to summarize the law as it relates principally to personal
jurisdiction, and thereby provide the practitioner with insight
on how to obtain personal jurisdiction over a defendant.
Elements of a
Court Jurisdictio
In order for a Court to render binding
ruling and judgments upon a party, the Court must have both
subject matter jurisdiction of the action and personal jurisdiction
of the parties.
Subject Matter
Jurisdiction
Subject matter jurisdiction
means jurisdiction of the nature of the cause of action and
the relief sought. Subject matter jurisdiction is conferred
by the sovereign authority which organizes the forum Court,
whether by the federal constitution, a state constitution,
or federal or state statutes. 11B M.J. Jurisdiction, §
12. For example, see Virginia Code § 17.1-513 defining
the jurisdiction of the Circuit Courts and 28 U.S.C. 1332
defining the jurisdiction of U.S. District Court in diversity
cases. It is the burden of the party that invokes the jurisdiction
of the Court to bring its claim within the class of cases
of which the Court has jurisdiction. Shelton v. Sydnor, 126
Va. 625, 629, 102 S.E. 83 (1920). Subject matter jurisdiction
cannot be obtained by the consent of the parties, nor waiver,
nor acquiescence. Lucas v. Biller, 204 Va. 309, 313, 130 S.E.2d
582 (1963). A challenge to subject matter jurisdiction can
be made at any time, including by an appellate court on its
own motion. Thacker v. Hubard, 122 Va. 379, 386, 94 S.E.2d
929 (1918).
Personal Jurisdiction
Before a Court can render binding rulings
and judgment upon a defendant, it must obtain personal jurisdiction
over that defendant. Regardless of the joint liability of
multiple defendants, personal jurisdiction over each defendant
must be established individually. Clark v. Milam, 830 F.Supp.
316 (S.D. W.Va. 1993).
The analysis of personal
jurisdiction of a foreign defendant involves a consideration
of the due process clause of the 14th Amendment to the U.S.
Constitution and the Virginia Long Arm Statute, set out at
Virginia Code § 8.01-328.1. The due process clause of
the 14th Amendment limits the jurisdiction of a state court
to enter judgments effecting rights of non-resident defendants.
Due process requires that state courts have personal jurisdiction
over a non-resident defendant. Surillo v. Drilake Farms, Inc.,
186 W.Va. 105, 411 S.E.2d 248 (1991).
Landmark Cases
Addressing Due Process Considerations
Below is a discussion
of the significant U.S. Supreme Court cases and Fourth Circuit
Cases which address the due process considerations of personal
jurisdiction over non-resident defendants. In International
Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154,
90 L.Ed. 95 (1945) the Court held that due process permits
the exercise of personal jurisdiction over a non-resident
defendant only where the defendant has "certain minimum
contacts" with the forum such that the maintenance of
the suit does not offend "traditional notions of fair
play and substantial justice."
Subsequent to International
Shoe, the Supreme Court held in Hanson v. Denckla, 375
U.S. 235, 78 S.Ct. 1228, 2 L. Ed. 2d 1283 (1958) , that the
minimum contacts required to sustain personal jurisdiction
over a non-resident defendant must include "some act
by which the defendant purposefully and avails itself of the
privilege of conducting activities within the foreign state
thus invoking the benefits and protections of its laws."
In Hanson, the Court held that the mere fact that the defendant
engaged in a national advertising campaign did not establish
that it purposely availed itself of the privilege of conducting
activities in every state where the advertisement might be
published or read.
In World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62, L.Ed.
2d 490 (1980), the Supreme Court had occasion to consider
personal jurisdiction over a product liability defendant.
In that case, the Court held that the consumer’s unilateral
act of bringing the non-resident defendant’s product
into the forum state was not a sufficient basis for establishing
personal jurisdiction. The Court did state that the forum
may have jurisdiction where the defendant delivers its products
"into the stream of commerce with the expectation that
they will be purchased by consumers in the forum State."
The Court continued, stating ". . . if the sale of a
product of a manufacturer or distributor . . . is not simply
an isolated occurrence, but arises from the efforts of the
manufacturer or distributor to serve, directly or indirectly,
the market for its products in other States, it is not unreasonable
to subject it to suit in one of those States if its allegedly
defective merchandise has there been the source of injury
to its owner or to others."
In Weight v. Kawasaki
Motors Corp., U.S.A., 604 F.Supp. 968 (E.D. 1985) the
Court had occasion to consider the "stream of commerce"
analysis set forth in World-Wide Volkswagen. Weight was a
products liability case against a Japanese manufacturer of
a defective motorcycle. The Court held that it had personal
jurisdiction over the manufacturer where the Japanese company
knew and intended that its motorcycles would be purchased
by consumers in Virginia, had an extensive network of dealers
in the Commonwealth owned by a subsidiary, and derived significant
revenues from that subsidiary.
The Fourth Circuit also
apply the stream of commerce analysis in Hardy v. Pioneer
Parachute Co., 531 F.2d 193, (4th Cir. 1976). In that
case, a South Carolina resident brought suit against a foreign
manufacturer and seller of a parachute which caused her injury.
The case involved the South Carolina long-arm statute similar
to the Virginia statute. In finding that the Court had jurisdiction
over the defendants, the Court stated "modern transportation,
communication and the national flow of commerce have contributed
to the recognition that States have a legitimate interest
in providing means for their citizens to seek redress against
foreign corporations that ship allegedly defective products
into the State."
The U.S. Supreme Court
had occasion to consider the jurisdiction over a foreign manufacturer
of a component part in Asahi Metal Indus. Co. v. Superior
Court of Cal., Solana County, 480 U.S. 102, 107 S.Ct.
1026, 94 L.Ed. 2d 92 (1987) which involved an indemnification
action by a Taiwanese tire manufacturer against a Japanese
valve assembly manufacturer. In an unanimous opinion, the
Court held that personal jurisdiction over the Japanese component
manufacturer would violate due process for three reasons.
First, the burden on the Japanese company in defending the
action would be severe. Second, the interest of the Taiwanese
manufacturer and the foreign State in the exercise of jurisdiction
over the Japanese company were slight. Third, in the international
context, the procedural and substantive interest of other
nations outweighed California’s interest in exercising
jurisdiction.
Importantly, the Supreme
Court in Asahi Metal was unable to achieve any consensus
as to the proper interpretation and scope of the "stream-of-commerce"
analysis applied by the Court in World-Wide Volkswagen.
A plurality of the Court, consisting of Justices O’Connor,
Renquist, Powell and Scalia concluded that "the placement
of a product into the stream of commerce, without more, is
not an act of the defendant purposefully directed toward the
forum State." That plurality held that the defendant’s
mere awareness that the stream of commerce will sweep the
product into the forum State was insufficient. Justices Brennan,
White, Marshall and Blackmun took the contrary view stating
that additional conduct need not be shown where the defendant
was aware that the product it placed into commerce was being
marketed in the forum State. In another opinion, Justice Stevens,
joined by Justices White and Blackmun stated that any attempt
to define the "stream of commerce" test was unnecessary
under the facts of the case. Justice Stevens did state that
he would ordinarily view the facts (deliveries of over 100,000
units over several years and a regular course of dealing)
as establishing the requisite "purposeful availment of
the forum’s markets," even though the item delivered
to the forum State was a standard product marketed throughout
the world.
The Virginia
Long Arm Statute
The statutory basis for
obtaining personal jurisdiction in Virginia over a foreign
defendant is the Virginia Long arm statute. That Statute is
codified at Virginia Code § 8.01-828.1 (1950, as amended)
and provides as follows:
Section 8.01-328.1.
When personal jurisdiction over person may be exercised.
A. A court may exercise personal jurisdiction over a person,
who acts directly or by an agent, as to a cause of action
arising from the person’s:
- Transacting
any business in this Commonwealth;
- Contracting
to supply services or things in this Commonwealth;
- Causing tortious
injury by an act or omission in this Commonwealth;
- Causing tortious
injury in this Commonwealth by an act or omission outside
this Commonwealth 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 Commonwealth;
- Causing injury
in this Commonwealth to any person for breach of warranty
expressly or impliedly made in the sale of goods outside
this Commonwealth when he might reasonably have expected
such person to use, consume, or be affected by the goods
in this Commonwealth, provided that he also 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 Commonwealth;
- Having an interest
in, using, or possessing real property in this Commonwealth;
- Contracting
to insure any person, property, or risk located within this
Commonwealth at the time of contracting;
- Having (i)
executed an agreement in this Commonwealth which obligates
the person to pay spousal support or child support to a
domiciliary of this Commonwealth, or to a person who has
satisfied the residency requirements in suits for annulments
or divorce for members of the armed forces pursuant to Section
20-97 provided proof of service of process on a nonresident
party is made by a law-enforcement officer or other person
authorized to serve process in the jurisdiction where the
nonresident party is located, (ii) been ordered to pay spousal
support or child support pursuant to an order entered by
any court of competent jurisdiction in this Commonwealth
having in personam jurisdiction over such person, or (iii)
shown by personal conduct in this Commonwealth, as alleged
by affidavit, that the person conceived or fathered a child
in this Commonwealth; or
- Having maintained
within this Commonwealth a matrimonial domicile at the time
of separation of the parties upon which grounds for divorce
or separate maintenance is based, or at the time, a cause
of action arose for divorce or separate maintenance or at
the time of commencement of such suit, if the other party
to the matrimonial relationship resides herein.
Jurisdiction is
subdivision 9 of this subsection is valid only upon proof
of service of process pursuant to § 8.01-296 on the nonresident
party by a person authorized under the provisions of §
8.01-320. Jurisdiction under subdivision 8(iii) of this subsection
is valid only upon proof of personal service on a nonresident
pursuant to § 8.01-320.
B. Using a computer
or computer network located in the Commonwealth shall constitute
an act in the Commonwealth. For purposes of this subsection,
“use” and “computer network” shall
have the same meanings as those contained in § 18.2-152.2.
C. When jurisdiction
over a person is based solely upon this section, only a cause
of action arising from acts enumerated in this section may
be asserted against him; however, nothing contained in this
chapter shall limit, restrict or otherwise affect the jurisdiction
of any court of this Commonwealth over foreign corporations
which are subject to service of process pursuant to the provisions
of any other statute. (Code 1950, Section 8-81.2; 1964, c.
331; 1977, c. 617; 1978, c. 132; 1981, c. 6; 1982, c. 313;
1983, c. 428; 1984, c. 609; 1986, c. 275; 1987, c. 594; 1988,
cc. 866, 878; 1992, c. 571; 1999, cc. 886, 904, 905.).
Importantly, the Virginia long arm statute is the basis by
which a Federal Court in Virginia obtains personal jurisdiction
over a foreign defendant. See Federal Rules of Civil Procedure
4(e) which provides in pertinent part as follows: "Unless
otherwise provided by federal law, service upon an individual
from whom a waiver has not been obtained and filed . . . may
be effected in any judicial district of the United States:
(1) Pursuant to the law of the state in which the district
court is located or in which service is effected, for the
service of a summons upon the defendant in an action brought
in the courts of general jurisdiction of the State; . . ."
See also Allied Towing
Corp. v. Great Petroleum Corp., 642 F.Supp. 1339, (E.D.
Va. 1988) wherein it is stated that absent a federal statute
authorizing nationwide service of process, the validity of
service of process is controlled by the law of the forum state.
The Virginia long arm statute
was enacted by the Virginia Legislature in 1964. The Virginia
Supreme Court has stated that "It is manifest that the
purpose of Virginia’s long arm statute is to assert
jurisdiction over nonresidents who engage in some purposeful
activity in this State to the extent permissible under the
due process clause." Kolbe Inc. v. Chromodern,
211 Va. 736, 740, 180 S.E.2d 664 (1971). See also Affinity
Memory & Micro, Inc. v. K & Q Enterprises, Inc.,
20 F. Supp. 2d 948, 951 (E.D. Va. 1998).
The constitutionality of
the Virginia long arm statute has been upheld twice by a federal
district court in Virginia. See Jackson v. National Linen
Serv. Corp., 249 F. Supp. 962 (W.D. Va. 1965); Etzler
v. Dille & McGuire Mfg. Co., 249 F. Supp. 1 (W.D.
Va. 1965).
Traditionally, a two-step
analysis is required when evaluating the propriety of jurisdiction
pursuant to the long arm statute. First, the Court must determine
whether the defendant’s conduct brings it within long
arm statute If so, then second, the Court must determine whether
the statutory assertion of jurisdiction is consistent with
the due process requirements of the Constitution. See Affinity
Memory & Micro Inc. v. K & Q Enterprises, Inc.,
20 F. Supp. 2d 948, 951 (E.D. Va. 1998) citing English
& Smith v. Metzger, 901 F.2d 36, 38 (4th Cir. 1990).
The burden is on the plaintiff to establish that the Court
has personal jurisdiction over the defendant. See Combs
v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). Note that
the burden is only to make a prima facie showing of sufficient
jurisdictional basis in order to survive a threshhold challenge;
if jurisdiction remains contested, plaintiff bears the burden
of proof at trial. Id. 886 F.2d at 676.
Elements of Personal
Jurisdiction
There are two components
to a Court’s exercise of personal jurisdiction over
a defendant. First, as discussed above, the Court’s
exercise of personal jurisdiction over a foreign defendant
must accord with the due process clause of the Fourteenth
Amendment. That is, whether the maintenance of the action
in the forum state offends "traditional notions of fair
play and substantial justice." Danville Plywood Corp.
v. Plain & Fancy Kitchens, Inc., 218 Va. 533, 238
S.E.2d 800 (1977). Second, the plaintiff must obtain service
of process upon the defendant. A valid, binding judgment must
be based upon the service of process upon a defendant or his
appearance in the suit when not personally served with process.
Where a state has provided convenient and certain methods
for giving notice to nonresidents and those methods have been
used, the judgments of its courts are as much binding upon
nonresidents as upon residents. 11B M.J., Jurisdiction §
15.
Minimum Contacts
Test
The Virginia long arm
statute was an attempt by the legislature to extend jurisdiction
over non-resident defendants in accordance with the Court’s
holding in International Shoe. As such, the cases addressing
the statute consistently consider whether the foreign defendant
has "certain minimum contacts" with the forum such
that the exercise of jurisdiction would not offend traditional
notions of fair play and substantial justice. The perimeters
of the due process inquiry are well-settled: where the person
over whom jurisdiction is asserted has established "certain
minimum contacts" with the forum such that requiring
him to defend his interest in the forum would not offend traditional
notions of fair play and substantial justice, and where he
has purposely availed himself of the privilege of conducting
activities within the forum State, thus invoking the benefits
and protections of its laws, jurisdiction will be upheld.
Each assertion of jurisdiction is to be tested on a case-by-case
basis. Peanut Corp. of Am. v. Hollywood Brands, Inc., 696
F.2d 311, 314 (4th Cir. 1982).
Discussion of
Subsections of the Virginia Long Arm Statute
Transacting any business in the Commonwealth.
The long arm statute provides
that "A Court may exercise personal jurisdiction over
a person, who acts directly or by an agent, as to a cause
of action arising from the person’s: (1) Transacting
any business in this Commonwealth." Importantly, the
Virginia Supreme Court and the Fourth Circuit have both interpreted
this subsection as a "single act" statute requiring
only one act to confer jurisdiction over a defendant. Kolbe,
Inc. v. Chromodern Chair Co., 211 Va. 736, 740, 180 S.E.2d
664 (1971); City of Virginia Beach, Virginia v. Roanoke
River Basin Assn., 776 F.2d 484, 487 (4th Cir. 1985).
Note that the single transaction out of which the cause of
action arose will be a sufficient basis for a jurisdiction
only if the defendant’s contacts with the State in connection
with the transaction demonstrate that the defendant purposefully
availed itself of the privileges of conducting business in
the State and could reasonably have anticipated being haled
into Court as to any dispute about the transaction. See
City of Virginia Beach, Virginia v. Roanoke River Basin Assn.,
776 F.2d 484, 487, 488 (4th Cir. 1985).
Contracting to supply
services or things in the Commonwealth.
Paragraph two provides
for personal jurisdiction as to causes of action arising out
of a defendant’s contract to supply services or things
in Virginia. Note that if the contract provided for the product
to be supplied outside the Commonwealth, then paragraph two
does not apply even though the defendant may have known that
the plaintiff intended to bring the product to Virginia. Promotions,
Ltd. Brooklyn Bridge Centennial Comm., 763 F.2d 173, 175
(4th Cir. 1985). Importantly, paragraph two does not confer
jurisdiction over a component manufacturer that was not itself
a party to the contract to supply the product in Virginia.
See Virginia Law of Products Liability § 12-1, p. 213,
Causing tortious
injury by act or omission in Virginia.
This section applies to
an injury caused by the defendant’s conduct within the
state. Note that the constitutional limitations concerning
jurisdiction apply to this subsection, as well as to all subsections
of the long arm statute. Therefore, the unilateral act of
a plaintiff of bringing a product into the state where the
injury occurs cannot form the basis of jurisdiction. Virginia
Law of Products Liability § 12-1, p. 213.
Causing tortious
injury in Virginia by act or omission outside Virginia
Paragraph four provides
for personal jurisdiction where the defendant has caused tortious
injury in Virginia by act or omission outside Virginia. ".
. . 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 Commonwealth." Note the requirement of paragraph
four that the defendant engaged in a persistent course of
conduct or derive substantial revenue is not equivalent to
the old "doing business" test that required a showing
of extensive intrastate activities in the forum. Virginia
of Law Products Liability § 12-1, p. 214. In Etzler
v. Dille & McGuire Mfg. Co., 249 F. Supp. 1, 4 (W.D.
Va. 1965), it was held that shipping a number of products
directly to customers in the state was a persistent course
of conduct. See also Ajax Realty Corp. v. J. F. Zook, Inc.,
493 F.2d 818, 821 (4th Cir. 1972) where the Court upheld personal
jurisdiction in a product liability action alleging property
damage due to leaking window frames where the manufacturer
derived $37,000.00 in revenue from frames sold in Virginia;
See also Jackson v. National Linen Serv. Corp., 248
F. Supp. 962, 965 (W. D. Va. 1965), where personal jurisdiction
was upheld in a product liability action alleging personal
injuries due to exploding solvent where the defendants direct
sales to Virginia customers provided $25,000.00 in revenues.
But See Gordonsville Indus. Inc. v. American Artos Corp.,
549 F. Supp. 200, 203 (W.D. Va. 1982) in which revenues of
$14,000.00 were held to not be substantial.
Causing injury in
Virginia by breach of warranty made in sale of goods outside
the state.
Subsection five provides
for personal jurisdiction over a defendant who causes injury
in Virginia to any person by breach of warranty made in the
sale of goods outside the Commonwealth ". . . when he
might reasonably have expected such person to use, consume,
or be effected by the goods in this Commonwealth . . . ."
provided the defendant also regularly does or solicits business,
or engages in other persistent course of conduct or derives
substantial revenues from goods used or consumed or services
rendered in Virginia. Note analysis under this subsection
involves a consideration of the defendant’s activities
and knowledge regarding the likelihood of its product being
used in the foreign state.
Website Activities
Several cases addressing
whether a foreign defendant’s internet activities give
rise to personal jurisdiction in the forum state have been
addressed by Virginia federal district courts. In Telco
Communications, Inc. v. An Apple A Day, Inc., 977 F. Supp.
404, 407 (E.D. Va. 1997), the Court found jurisdiction under
the Virginia long arm statute "because defendants conducted
their advertising and soliciting over the internet, which
could be accessed by a Virginia resident 24 hours a day."
As such, the Court concluded that the defendants conducted
their business regularly under the terms of the long-arm statutes
sufficient to satisfy 8.01-328.1 (A)(4). In Black &
Decker, Inc. v. Pro-Tech Power, Inc., 26 F. Supp. 2d 834
(E.D. Va. 1998) the Court concluded that the defendants conduct
satisfied the requirements of the Virginia long arm statute
by regularly soliciting business in Virginia by advertising
their products on their websites which were accessible to
any Virginia resident over the internet and they provided
interested customers with the company’s e-mail addresses.
However, the Court concluded that those activities did not
satisfy the constitutional prong required in determining personal
jurisdiction. Specifically, the Court concluded that the mere
fact that the defendant advertised on the internet and manufactured
tools with the knowledge that some would be sold in Virginia
was insufficient to satisfy the constitutional requirements
because such conduct amounts to nothing more than "the
placement of a product into the stream of commerce,"
and as such, is not an act purposefully directed towards the
forum state. Black & Decker, 26 F.2d at 843.
In Bochan v. La Fontaine,
68 F. Supp. 2d, 692 (E.D. Va. 1999), the Court considered
whether the defendant committed a tort in Virginia by posting
certain messages to an internet news group via AOL and Earthlink.net.
Citing to Krantz v. Airline Pilots Assn. Int’l.,
245 Va. 202, 427 S.E.2d 326 (1993), the Court concluded that
the defendant’s use of a bullentin board based in a
Virginia facility satisfied § 8.01-328.1 (A)(3). The
Court considered the conduct of co-defendant Harris, who posted
allegedly defamatory statements on internet service providers
not located in Virginia under 8.01-328.1 (A)(4). As such,
the Court considered whether defendant Harris regularly conducted
any persistent course of conduct or solicited business in
Virginia. Finding that the defendant Harris did use the internet
to solicit business in Virginia by promoting and advertising
his computer company through a website accessible to Virginia
users 24 hours a day, the Court found that 8.01-328.1(A)(4)
was satisfied. The Court next considered the constitutional
prong of the analysis, and concluding that the harm inflicted
by the defendants’ conduct took place in Virginia such
that they should reasonably have anticipated being haled into
Court there. Therefore, jurisdiction was found.
In Rannoch Inc. v. Rannoch
Corp., 52 F. Supp. 2d 681 (E.D. Va. 1999), the foreign
defendant did not contest that under existing case law, its
conduct would satisfy § 8.01-328.1(A)(4) of the long
arm statute as its website promoted and advertised its services
and was accessible to Virginians 24 hours a day. However,
the Court in applying the constitutional prong of the analysis,
concluded that the defendant’s activities were nothing
more than the placement of the website on the internet with
knowledge of the possibility that the site may be accessed
in Virginia. That alone did not satisfy the due process jurisdictional
standard. The Court emphasized that the plaintiff made no
showing of any purposeful availment by the defendant of Virginia
as distinct from any other state or even any purposeful activity
directed at or related to the plaintiff.
Most recently, the Court
in Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714
(E.D. Va. 2000), concluded that exercising personal jurisdiction
over the defendants would violate due process. In Roche,
an attorney in private practice in Virginia was the owner
of a domain website registered with the name "triallawyer.com."
While accessing that site, he was confronted with explicit
pornographic material which he claimed deeply offended and
disgusted him. He filed a five count complaint alleging fraud,
negligent misrepresentation, and intentional infliction of
emotional distress. The Court focused its analysis on the
due process prong of the personal jurisdiction analysis. In
doing so, it noted that the defendants did nothing more than
place information on a website on the internet with knowledge
of the possibility that someone in Virginia might access the
site. The Court noted that there was no evidence that the
defendant sold products in Virginia, had employees in Virginia,
held meetings in Virginia, or conducted activities or any
other promotional activities directed specifically to Virginia.
The Court concluded that there was no evidence whatsoever
that the defendant purposely availed itself of the benefits
of Virginia law or purposely directed its activities at the
plaintiff. Therefore, the Court concluded that it could not
exercise jurisdiction over the defendant consistent with the
Fourteenth Amendment.
Personal Jurisdiction
Obtained Independent of the Virginia Long Arm Statute
Do note that the Virginia
long arm statute provide methods of obtaining personal jurisdiction
over a foreign defendant, and not the exclusive method. See
Ragouzis v. Ragouzis, 10 Va. App. 312, 391 S.E.2d 607
(1990). See also Witt v. Reynolds Metals Co., 240 Va.
452, 397 S.E.2d 873 (1990) in which the Supreme Court reversed
a finding of no personal jurisdiction where injuries occurred
to a Virginia resident in Alabama and defendant had substantial
contacts and business in Virginia. The Court stated that the
long arm statute does not address the doctrine of general
jurisdiction arising out of a significant presence of a party
in the state.
Note, the Virginia long
arm statute only creates personal jurisdiction for a claim
which arises from the enumerated activities. See Subsection
C of 8.01-328.1 and City of Virginia Beach, Virginia v.
Roanoke River Basin Assn., 776 F.2d 484 (4th Cir. 1985).
Service of Process
To effectuate personal
jurisdiction upon a defendant, service of process must be
obtained. Resort must be made to the applicable service provisions
for foreign defendants. See for example, Virginia Code §
8.01-301, Subsection 3 which provides that service of process
on a foreign corporation may be effected by substituted service
on a foreign corporation in accordance with § 8.01-329
where jurisdiction is authorized under 8.01-328.1. See Federal
Rule of Civil Procedure Rule 4(f) which provides for service
in a foreign country pursuant to any internationally agreed
means reasonably calculated to give notice such as those authorized
by the Hague Convention on service abroad of judicial and
extra judicial documents.
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