O'Connor v. Sandy Lane Hotel Co ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-26-2007
O'Connor v. Sandy Lane Hotel Co
Precedential or Non-Precedential: Precedential
Docket No. 05-3288
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-3288
____________
PATRICK J. O’CONNOR; MARIE M. O’CONNOR;
Appellants,
v.
SANDY LANE HOTEL CO., LTD.
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 04-cv-02436)
District Judge: Honorable J. Curtis Joyner
Argued June 16, 2006
Before: FISHER, CHAGARES, and REAVLEY,* Circuit
Judges.
____________
(Filed: July 26, 2007)
James Mundy (Argued)
Raynes, McCarty, Binder, Ross & Mundy
1845 Walnut Street, Suite 2000
Philadelphia, PA 19103
Counsel for Appellant
*
The Honorable Thomas M. Reavley, United States Circuit
Judge for the Fifth Circuit, sitting by designation.
1
Paul A. Lisovicz (Argued)
Coughlin Duffy
350 Mount Kemble Ave.
P.O. Box 1917
Morristown, NJ 07962
Counsel for Appellee
OPINION OF THE COURT
CHAGARES, Circuit Judge.
While receiving a massage treatment at a Barbados hotel,
appellant Patrick J. O’Connor slipped, fell, and injured his
shoulder. He and the hotel had arranged for that massage by
telephone after the hotel mailed a spa brochure to his Pennsylvania
home. Mr. O’Connor and his wife Marie brought negligence
claims against the hotel, and the District Court dismissed for want
of personal jurisdiction. In this appeal, we conclude that the
District Court had specific jurisdiction to adjudicate the
O’Connors’ claims. As a result, we will reverse and remand.
I.
Appellee Sandy Lane Hotel Company is a Barbados
corporation. Its sole business is the operation of the Sandy Lane
Hotel in St. James, Barbados. The hotel considers itself “the
premier address in the Caribbean,” and its features include 45 holes
of championship golf, a state-of-the-art spa, and a setting
“overlooking a gorgeous crescent of beach on Barbados’ western
coast.” Appendix (“App.”) 259, 276.
Patrick and Marie O’Connor reside in Pennsylvania. They
first heard about Sandy Lane while planning a vacation.1 Friends
1
We recount only those facts relied on by the O’Connors to
support their claim of specific jurisdiction. In their brief, the
O’Connors also argued that Sandy Lane is subject to general
jurisdiction in Pennsylvania, and in the alternative they sought to
2
and travel agents said good things about the resort, so the couple
booked a week’s stay through the American Express travel agency.
The O’Connors left for Barbados in late February 2002 and
returned to Pennsylvania in early March. Upon their return, Sandy
Lane started mailing seasonal newsletters to the O’Connors’ home.
These newsletters kept the O’Connors up to date on new amenities
and other changes at Sandy Lane. See, e.g., App. 304 (“[O]ur wine
waiters have been in France this summer participating in the harvest
and improving their wine knowledge to better serve you.”).
In early 2003, the O’Connors decided to make a return trip.
They booked a five-night stay at Sandy Lane through a travel
agency. Sandy Lane then mailed the O’Connors a brochure
highlighting the many treatments available at the on-site spa. The
brochure advised the couple to schedule spa treatments in advance
of their trip. The O’Connors perused the brochure and liked what
they saw. They decided to purchase various treatments, and the
scheduling process involved a series of phone calls both to and
from Sandy Lane. In the end, Sandy Lane agreed to provide spa
treatments at specific dates and times, and the O’Connors agreed to
pay a set price.
The O’Connors arrived in Barbados shortly thereafter, and,
on February 26, Mr. O’Connor was due for one of his massages.
He went to the spa at the appointed time, and the staff began to
“rejuvenate” his “mind, body, and spirit.” App. 281, 325. As part
of that process, a Sandy Lane employee instructed Mr. O’Connor
to step into the shower and wash up. Unfortunately, Mr.
O’Connor’s feet were still slick with massage oils, and there were
no mats on the shower’s wet floor. As he stepped into the shower,
transfer the case to the Southern District of New York. See Pl.
Brief 1-2. To that end, they discussed, inter alia, five business
trips to Philadelphia by Sandy Lane employees, the mailing of
newsletters to approximately 800 Pennsylvania addresses, and
Sandy Lane’s relationships with public relations and marketing
firms in New York City. See Pl. Brief 6-8, 21-23. At oral
argument, however, the O’Connors’ attorney stated they were
abandoning their other arguments and relying exclusively on their
claim of specific jurisdiction.
3
Mr. O’Connor slipped, fell, and tore his rotator cuff.
Mr. and Mrs. O’Connor brought negligence claims against
the hotel in the Court of Common Pleas for Philadelphia County.
Sandy Lane removed the case to the United States District Court for
the Eastern District of Pennsylvania, and the District Court
dismissed for lack of personal jurisdiction. The O’Connors appeal.
II.
The District Court had subject-matter jurisdiction because
the O’Connors are citizens of Pennsylvania, Sandy Lane is a
Barbados corporation, and the amount in controversy exceeds
$75,000. See 28 U.S.C. §§ 1332, 1441; Nat’l S.S. Co. v. Tugman,
106 U.S. 118, 121 (1882). We have jurisdiction under 28 U.S.C. §
1291, and we exercise plenary review over the District Court’s
dismissal for lack of personal jurisdiction. Pinker v. Roche
Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002).
Once challenged, the plaintiff bears the burden of
establishing personal jurisdiction. General Elec. Co. v. Deutz AG,
270 F.3d 144, 150 (3d Cir. 2001). Nonetheless, since the District
Court did “not hold an evidentiary hearing . . ., the plaintiff[s] need
only establish a prima facie case of personal jurisdiction and the
plaintiff[s] [are] entitled to have [their] allegations taken as true and
all factual disputes drawn in [their] favor.” Miller Yacht Sales, Inc.
v. Smith, 384 F.3d 93, 97 (3d Cir. 2004).
Under Federal Rule of Civil Procedure 4(k), a District Court
typically exercises personal jurisdiction according to the law of the
state where it sits. See Fed. R. Civ. P. 4(k)(1)(A). Because this
case comes to us from the United States District Court for the
Eastern District of Pennsylvania, we apply the Pennsylvania long-
arm statute. It provides for jurisdiction “based on the most
minimum contact with th[e] Commonwealth allowed under the
Constitution of the United States.” 42 Pa. Cons. Stat. Ann. §
5322(b); see Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960
F.2d 1217, 1221 (3d Cir. 1992). Accordingly, in determining
whether personal jurisdiction exists, we ask whether, under the Due
Process Clause, the defendant has “certain minimum contacts with
. . . [Pennsylvania] such that the maintenance of the suit does not
4
offend traditional notions of fair play and substantial justice.” See
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal
quotation omitted).
III.
The two types of personal jurisdiction are general
jurisdiction and specific jurisdiction. See Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 & n.9 (1984). The
O’Connors conceded at oral argument that Sandy Lane lacks the
“continuous and systematic” Pennsylvania contacts needed to
support general jurisdiction, so we consider only the specific
variety here.
The inquiry as to whether specific jurisdiction exists has
three parts. First, the defendant must have “purposefully directed
[its] activities” at the forum. Burger King Corp. v. Rudzewicz, 471
U.S. 462, 472 (1985) (quotation marks omitted). Second, the
litigation must “arise out of or relate to” at least one of those
activities. Helicopteros, 466 U.S. at 414; Grimes v. Vitalink
Commc’ns Corp., 17 F.3d 1553, 1559 (3d Cir. 1994). And third, if
the prior two requirements are met, a court may consider whether
the exercise of jurisdiction otherwise “comport[s] with ‘fair play
and substantial justice.’” Burger King, 471 U.S. at 476 (quoting
Int’l Shoe, 326 U.S. at 320).2
A.
At the threshold, the defendant must have “purposefully
avail[ed] itself of the privilege of conducting activities within the
forum.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). Physical
entrance is not required. See Burger King, 471 U.S. at 476; Grand
Entm’t Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 482 (3d
Cir. 1993) (“Mail and telephone communications sent by the
2
A slightly refined version of this test applies to intentional
tort claims. See Calder v. Jones, 465 U.S. 783 (1984); IMO Indus.,
Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998). Because the
O’Connors’ claims sound only in negligence, we use the standard
formulation of the test here.
5
defendant into the forum may count toward the minimum contacts
that support jurisdiction.”). But what is necessary is a deliberate
targeting of the forum. Thus, the “unilateral activity of those who
claim some relationship with a nonresident defendant” is
insufficient. See Hanson, 357 U.S. at 253. And contacts with a
state’s citizens that take place outside the state are not purposeful
contacts with the state itself. See Gehling v. St. George’s Sch. of
Med., Ltd., 773 F.2d 539, 542-43 (3d Cir. 1985).
Some of the contacts alleged by the O’Connors do not meet
this standard.3 First, the O’Connors claim they heard about the
hotel from friends and travel agents in Pennsylvania. Sandy Lane,
however, was not a party to these conversations, and they have no
bearing on our jurisdictional inquiry. See Hanson, 357 U.S. at 253.
Second, the O’Connors rely on their 2002 trip to Sandy Lane. This
too lacks jurisdictional significance. Contact with vacationing
Pennsylvanians is no substitute for contact with Pennsylvania. See
Gehling, 773 F.2d at 542-43. A Philadelphia vendor may sell a lot
of cheesesteaks to German tourists, but that does not mean he has
purposefully availed himself of the privilege of conducting
activities within Germany.
3
We note that our usual practice is to assess specific
jurisdiction on a claim-by-claim basis. See, e.g., Remick v.
Manfredy, 238 F.3d 248, 255-56 (3d Cir. 2001). However, “it may
not be necessary to do so” for certain factually overlapping claims.
Id. In this case, Mr. O’Connor brings a negligence claim, while
Mrs. O’Connor alleges loss of consortium. Mrs. O’Connor’s loss-
of-consortium claim is “purely derivative” of her husband’s
negligence claim. Nigra v. Walsh, 797 A.2d 353, 355 n.1 (Pa.
Super. Ct. 2002); see also Scattaregia v. Wu, 495 A.2d 552, 554
(Pa. Super. Ct. 1985) (“The consortium plaintiff has suffered no
direct injury. His right to recover is derived, both in a literal and
legal sense, from the injury suffered by his spouse.”) (quotations
and alterations omitted). Because the two claims “together . . .
represent the total, compensable damages—direct and
indirect—suffered as a result of the principal plaintiff’s injury,”
Scattaregia, 495 A.2d at 553, we need not analyze them separately.
6
Nonetheless, Sandy Lane’s other claim-specific contacts do
amount to purposeful availment. After the O’Connors’ initial stay,
Sandy Lane continued to cultivate the relationship by mailing
seasonal newsletters to their Pennsylvania home. And after the
O’Connors booked their 2003 trip, Sandy Lane mailed them a
brochure and traded phone calls with them for the purpose of
forming an agreement to render spa services. Through these acts,
Sandy Lane deliberately reached into Pennsylvania to target two of
its citizens. See Hanson, 357 U.S. at 253; Grand Entm’t, 988 F.2d
at 482. Thus, if the O’Connors’ allegations are true, then they
establish purposeful contact with Pennsylvania. See Miller Yacht,
384 F.3d at 97.
B.
1.
Identifying some purposeful contact with the forum is but
the first step in the specific-jurisdiction analysis. The plaintiffs’
claims must also “arise out of or relate to” at least one of those
contacts. Helicopteros, 466 U.S. at 414; Grimes, 17 F.3d at 1559.
Unfortunately, the Supreme Court has not yet explained the scope
of this requirement.4 See Helicopteros, 466 U.S. at 415 n.10.5 State
4
The Court granted certiorari on the question in Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), but ultimately
decided the case on other grounds. Id. at 589.
5
Some courts have opined that the test’s disjunctive
phrasing—“arise out of or relate to”—itself implies a “flexib[le]”
and “relax[ed]” standard. See, e.g., Akro Corp. v. Luker, 45 F.3d
1541, 1547 (Fed. Cir. 1995) (quotation marks omitted). But the
Supreme Court has cautioned against attaching any significance to
its use of the disjunctive. See Helicopteros, 466 U.S. at 415 n.10
(“We do not address . . . whether the terms ‘arising out of’ and
‘related to’ describe different connections . . . . Nor do we reach
the question whether, if the two types of relationship differ, a
forum’s exercise of personal jurisdiction in a situation where the
cause of action ‘relates to,’ but does not ‘arise out of,’ the
defendant’s contacts with the forum should be analyzed as an
7
and lower federal courts have stepped in to fill the void, but their
decisions lack any consensus. See generally Miller Yacht, 384 F.3d
at 102-05 (Scirica, C.J., dissenting in part) (“The courts of appeals
have adopted divergent interpretations of ‘arise out of or relate to’
as that phrase relates to specific jurisdiction analysis.”).
Three approaches predominate. The most restrictive
standard is the “proximate cause” or “substantive relevance” test.
Courts have articulated this test in a variety of ways. Some hold the
defendant’s contacts must be the “legal cause” of the plaintiff’s
injury “(i.e., the defendant’s in-state conduct [must] g[i]ve birth to
the cause of action).” See, e.g., Mass. Sch. of Law at Andover, Inc.
v. Am. Bar Ass’n, 142 F.3d 26, 35 (1st Cir. 1998) (quotation marks
omitted). Justice Brennan, dissenting in Helicopteros, similarly
described it as a requirement that “the cause of action . . . formally
‘arise out of’ the [defendant’s] contacts.” See Helicopteros, 466
U.S. at 426-27 (Brennan, J., dissenting). But stated most simply,
this test examines whether any of the defendant’s contacts with the
forum are relevant to the merits of the plaintiff’s claim. See Lea
Brilmayer, How Contacts Count: Due Process Limitations on State
Court Jurisdiction, 1980 Sup. Ct. Rev. 77, 82-83.6 The Court of
Appeals for the First Circuit employs this standard in most cases,
but it “allow[s] a slight loosening . . . when circumstances dictate.”
See Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 716 (1st Cir.
1996). Other courts apply a purer, more rigid version. See, e.g.,
State ex rel. La Manuf. Francaise Des Pneumatiques Michelin v.
Wells, 657 P.2d 207, 211 (Or. 1982) (requiring the defendant’s
contacts to have “relevance to the substance of th[e] claim for
assertion of specific jurisdiction.”).
6
See Mark M. Maloney, Note, Specific Jurisdiction and the
“Arise from or Relate to” Requirement . . . What Does It Mean?,
50 Wash. & Lee L. Rev. 1265, 1283 (1993) (“[T]he substantive
relevance test and the proximate cause test are essentially the
same.”); see also Davis v. Baylor Univ., 976 S.W.2d 5, 8 (Mo. Ct.
App. 1998) (same); Shell Compania Argentina de Petroleo, S.A. v.
Reef Exploration, Inc., 84 S.W.3d 830, 837 n.5 (Tex. Ct. App.
2002) (same).
8
relief”).7
A second, more relaxed test requires only “but-for”
causation. As the name indicates, this standard is satisfied when
the plaintiff’s claim would not have arisen in the absence of the
defendant’s contacts. See, e.g., Shute v. Carnival Cruise Lines, 897
F.2d 377, 385-86 (9th Cir. 1990), rev’d on other grounds 499 U.S.
585 (1991).8 In Shute, for example, two Washingtonians booked
a Carnival cruise through a travel agent, and during the cruise one
of them “slipped on a deck mat.” See id. at 379. Carnival provided
brochures to travel agencies in Washington, and it also held
seminars for Washington travel agents. Id. These contacts satisfied
the but-for test because, “[i]n the absence of Carnival’s activity, the
Shutes would not have taken the cruise, and Mrs. Shute’s injury
7
See also Wims v. Beach Terrace Motor Inn, Inc., 759
F. Supp. 264, 268 (E.D. Pa. 1991) (endorsing a test that looks to
whether “the acts of the defendant within the forum state represent
the factual predicates upon which the cause of action are to be
based”) (quotation marks omitted); Simpson v. Quality Oil Co.,
Inc., 723 F. Supp. 382, 388-89 (S.D. Ind. 1989) (“[T]he defendant’s
contacts with the forum must be substantively related to the cause
of action in order to confer specific jurisdiction over the
defendant.”); Kingsley & Keith (Canada) Ltd. v. Mercer Int’l
Corp., 456 A.2d 1333, 1338 (Pa. 1983) (Nix, J., in support of
reversal, judgment affirmed by an equally divided court) (“[T]he
acts of the nonresident defendant within the forum state [must]
represent the factual predicates upon which a cause of action are to
be based.”).
8
See also Lanier v. Am. Bd. of Endontics, 843 F.2d 901, 909
(6th Cir. 1988) (applying a “made possible by” standard); Deluxe
Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209, 1216 (7th Cir.
1984) (applying a “lies in the wake of” test); Prejean v. Sonatrach,
Inc., 652 F.2d 1260, 1270 n.21 (5th Cir. 1981) (“In a case like this,
the contractual contact is a ‘but for’ causative factor for the tort
since it brought the parties within tortious ‘striking distance’ of
each other.”); Tatro v. Manor Care, Inc., 625 N.E.2d 549, 552-55
(Mass. 1994) (interpreting the Massachusetts long-arm statute to
adopt a but-for test and holding that the statute is constitutional).
9
would not have occurred.” Id. at 386.
A third standard looks for a “substantial connection” or
“discernible relationship.” Unlike the but-for test, causation is of
no special importance. The critical question is whether the tie
between the defendant’s contacts and the plaintiff’s claim is close
enough to make jurisdiction fair and reasonable. See Shoppers
Food Warehouse v. Moreno, 746 A.2d 320, 335-36 (D.C. 2000);
see also Chew v. Dietrich, 143 F.3d 24, 29 (2d Cir. 1998); Vons
Cos. v. Seabest Foods, Inc., 926 P.2d 1085, 1096-97 (Cal. 1996);
Thomason v. Chem. Bank, 661 A.2d 595, 603-04 (Conn. 1995).
Because courts that follow this approach consider the totality of the
circumstances, there appears to be no rigid distinction between
general and specific jurisdiction. See Chew, 143 F.3d at 29; see
also Shoppers, 746 A.2d at 336 (holding that the court’s
“discernible relationship” requirement relaxes in light of “extensive
and repeated advertising . . . in the Washington Post”). Instead, the
two categories sit at “opposite ends of [a] sliding scale.” See
William M. Richman, Review Essay: Part I—Casad’s Jurisdiction
in Civil Actions, Part II—A Sliding Scale to Supplement the
Distinction between General and Specific Jurisdiction, 72 Cal. L.
Rev. 1328, 1340-1346 (1984). The degree of relatedness required
in a given case is inversely proportional to the overall “intensity of
[the defendant’s] forum contacts.” See Vons, 926 P.2d at 1096-97.
2.
This Court has never adopted a definitive approach to the
relatedness requirement.9 Over the years, we have applied the
9
Sandy Lane argues that our decision in Scheidt v. Young,
389 F.2d 58 (3d Cir. 1968) (per curiam), controls the analysis here.
To the contrary, Scheidt did not discuss relatedness. In Scheidt, a
Pennsylvania hotel placed an advertisement in the New York Daily
News. A New Jerseyan read the advertisement, called the hotel to
book a room, and then telegraphed a deposit. During the New
Jerseyan’s stay, she suffered an injury. We held that placing an
10
requirement many times, but our cases have avoided “categorical
determinations.” See, e.g., Mellon Bank, 960 F.2d at 1224-25.
Nonetheless, in contract cases we have effectively required
substantive relevance. See Gen. Elec. Co., 270 F.3d at 150 (“In
contract cases, courts should inquire whether the defendant’s
contacts with the forum were instrumental in either the formation
of the contract or its breach.”). As for tort claims, in Miller Yacht
Sales, Inc. v. Smith, 384 F.3d 93 (3d Cir. 2004), a divided panel
stated that “a defendant’s contacts with a forum need not have been
the proximate cause of the plaintiff’s injuries in a tort case.” Id. at
99. The majority noted that this conclusion “beg[ged] the question
of what level of relationship is necessary under the ‘arise out of or
relate to’ requirement,” but it declined to adopt a specific test. Id.
at 99-100. It stated that courts should “approach[] each case
individually and take[] a realistic approach.” Id. (quotation marks
omitted).
We agree, of course, that courts must decide each case
individually, and Miller Yacht’s rejection of the proximate cause
test binds this panel. See Blair v. Scott Specialty Gases, 283 F.3d
595, 610-11 (3d Cir. 2002). Moreover, the Supreme Court’s
personal jurisdiction cases have repeatedly warned against the use
of “mechanical or quantitative” tests. See Int’l Shoe, 326 U.S. at
319; see also Kulko v. Superior Court, 436 U.S. 84, 92 (1978)
(“[F]ew answers will be written in black and white. The greys are
dominant and even among them the shades are innumerable.”)
(quotation marks omitted). In light of this instruction, we think it
appropriate to continue this Court’s established practice and refrain
from adopting a bright-line test. See Miller Yacht, 384 F.3d at 99-
100.
That is not to say, however, that our relatedness inquiry
should be completely devoid of standards. The Due Process Clause
is supposed to bring “a degree of predictability to the legal system.”
advertisement in an out-of-state newspaper that happens to
circulate in New Jersey is not “purposeful[] avail[ment] of the
privilege of conducting activities within” the state. Id. at 60. As
a result, we had no occasion to address the scope of the relatedness
requirement.
11
See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
297 (1980). It should allow out-of-state residents to “structure their
primary conduct with some minimum assurance as to where that
conduct will and will not render them liable to suit.” Id. The more
flexible our approach, the less certain its application; and when the
only rule is that each case is different, then in no case can the result
safely be predicted. Cf. Antonin Scalia, The Rule of Law as a Law
of Rules, 56 U. Chi. L. Rev. 1175 (1989). Thus, while our
precedents foreclose the application of a single, mechanical test, it
is altogether appropriate for us to provide further guidance on this
Court’s approach to the relatedness requirement.
At the outset, then, we must state that the “sliding scale,”
“substantial connection,” and “discernible relationship” tests are
not the law in this circuit. By any name, these “hybrid” approaches
allow courts to vary the scope of the relatedness requirement
according to the “quantity and quality” of the defendant’s contacts.
See Richman, supra, 72 Cal. L. Rev. at 1345; see also Chew, 143
F.3d at 29; Vons, 926 P.2d at 1096-97; Shoppers, 746 A.2d at 335-
36. General and specific jurisdiction merge, and the result is a
freewheeling totality-of-the-circumstances test. See Chew, 143
F.3d at 29. Our cases, however, have always treated general and
specific jurisdiction as analytically distinct categories, not two
points on a sliding scale. See Helicopteros, 466 U.S. at 414-16;
Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001).10 If the
defendant “maintain[s] continuous and substantial forum
10
Indeed, even a leading academic proponent of the sliding-
scale test perceives some tension between that approach and
Supreme Court precedent. See William M. Richman,
Understanding Personal Jurisdiction, 25 Ariz. St. L.J. 599, 615
(1993) (“Jurisdiction should exist in cases like Helicopteros; the
general/specific distinction should not eliminate the possibility of
amenability in cases that fall between the two paradigms. To
encompass all the proper cases, the dichotomy should be
supplemented with a sliding scale.”); see also Eugene F. Scoles, et
al., Conflict of Laws 306 (4th ed. 2004) (“Whatever the merits of
[a sliding scale], it is clear that a fairly sharp dichotomy between
[general and specific jurisdiction] still expresses the view of the
Supreme Court.”).
12
affiliations,” then general jurisdiction exists. See Dollar Sav. Bank
v. First Sec. Bank of Utah, 746 F.2d 208, 212 (3d Cir. 1984). If the
defendant’s contacts fall short of that standard, then at least one
contact must give rise or relate to the plaintiff’s claim. See Grimes,
17 F.3d at 1559. These categories constitute “two distinct
theories,” and our cases recognize the importance of separate
analysis. See Remick, 238 F.3d at 255; Grimes, 17 F.3d at 1559.
We are not inclined to alter this approach, nor will we
supplement it with a sliding scale. When courts confine general
and specific jurisdiction to their separate spheres, potential
defendants can anticipate and control their jurisdictional exposure.
See World-Wide, 444 U.S. at 297. As long as out-of-state residents
refrain from continuous and substantial forum contacts, they can
conduct their affairs “confident that transactions in one context will
not come back to haunt them unexpectedly in another.” See RAR,
Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1277-78 (7th Cir. 1997).
Under a “hybrid” approach, by contrast, all factors come together
in “a sort of jurisdictional stew.” See Mary Twitchell, Burnham
and Constitutionally Permissible Levels of Harm, 22 Rutgers L.J.
659, 666 (1991).11 Unbounded judicial intuition replaces structured
analysis, and its application from case to case necessarily defies
prediction. Cf. EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 975
(D.C. Cir. 1999) (Silberman, J., dissenting) (“Every case, after all,
has its circumstances, and every chancellor’s foot a different
length.”). A standard so formless has no place in our relatedness
inquiry.
Unlike the hybrid approaches, the but-for test at least makes
an attempt to preserve the distinction between general and specific
jurisdiction. See Shute, 897 F.2d at 385. But-for causation does
not shift with the strength of the defendant’s contacts, nor does it
slide along a continuum. Rather, it draws a bright line separating
the related from the unrelated. See William L. Prosser, The Law of
11
As Professor Twitchell puts it, simply combine “a little
purposefulness, a little relatedness, a little convenience and some
state interest,” and—voilá!—“fair jurisdiction, even if the case falls
outside the contours of specific and general jurisdiction as they
have been defined by courts and commentators.” Id.
13
Torts 237 (4th ed. 1971) (“Causation is a fact. It is a matter of what
has in fact occurred.”). More importantly, by ensuring the
existence of some minimal link between contacts and claims, but-
for causation provides a useful starting point for the relatedness
inquiry.
But although the analysis may begin with but-for causation,
it cannot end there. The animating principle behind the relatedness
requirement is the notion of a tacit quid pro quo that makes
litigation in the forum reasonably foreseeable. See Burger King,
471 U.S. at 475-76. Out-of-state residents who “exercise[] the
privilege of conducting activities within a state . . . enjoy[] the
benefits and protection of” the state’s laws; in exchange, they must
submit to jurisdiction over claims that arise from or relate to those
activities. See Int’l Shoe, 326 U.S. at 319; Burger King, 471 U.S.
at 475-76. But-for causation cannot be the sole measure of
relatedness because it is vastly overinclusive in its calculation of a
defendant’s reciprocal obligations. The problem is that it “has . . .
no limiting principle; it literally embraces every event that
hindsight can logically identify in the causative chain.” See Nowak
v. Tak How Invs., Ltd., 94 F.3d 708, 715 (1st Cir. 1996).12 If but-
for causation sufficed, then defendants’ jurisdictional obligations
would bear no meaningful relationship to the scope of the “benefits
and protection” received from the forum. See Int’l Shoe, 326 U.S.
at 319. As a result, the relatedness inquiry cannot stop at but-for
causation.
Indeed, even courts that embrace the but-for test recognize
its overinclusiveness. See, e.g., Shute, 897 F.2d at 385. These
courts fall back on the third step of the analysis—whether
jurisdiction is otherwise fair and reasonable—to protect against the
but-for test’s causative excesses. See id. But-for causation,
however, may have more holes than the third step can plug. Once
the plaintiff proves minimum contacts, the court may consider
whether the defendant has “present[ed] a compelling case that the
12
See also Prosser, The Law of Torts, supra, at 236 (“[T]he
consequences of an act go forward to eternity, and the causes of an
event go back to the discovery of America and beyond. ‘The fatal
trespass done by Eve was cause of all our woe.’”).
14
presence of some other considerations would render jurisdiction
unreasonable.” See Burger King, 471 U.S. at 477 (emphasis
added); see also Richman, supra, 25 Ariz. St. L.J. at 634 (“[T]he
contacts step is by far the more important; the fairness inquiry plays
a subsidiary role.”). Moreover, even if the third step is up to the
task, courts cannot elide relatedness simply because the
jurisdictional inquiry has a third component. See Burger King, 471
U.S. at 476-77; Miller Yacht, 384 F.3d at 96-97. Relatedness is an
independent constitutional mandate, and some but-for causes do not
relate to their effects in a jurisdictionally significant way.
We thus hold that specific jurisdiction requires a closer and
more direct causal connection than that provided by the but-for test.
As we stated in Miller Yacht, there is no “specific rule” susceptible
to mechanical application in every case. See 384 F.3d at 100. But
in the course of this necessarily fact-sensitive inquiry, the analysis
should hew closely to the reciprocity principle upon which specific
jurisdiction rests. See Burger King, 471 U.S. at 475-76. With each
purposeful contact by an out-of-state resident, the forum state’s
laws will extend certain benefits and impose certain obligations.
See Int’l Shoe, 326 U.S. at 319. Specific jurisdiction is the cost of
enjoying the benefits. See Schwarzenegger v. Fred Martin Motor
Co., 374 F.3d 797, 802 (9th Cir. 2004) (“In return for the[] benefits
and protections [of a state’s laws,] a defendant must—as a quid pro
quo—submit to the burdens of litigation in that forum.”)
(quotations marks omitted); Coté v. Wadel, 796 F.2d 981, 984 (7th
Cir. 1986) (“Personal jurisdiction over nonresidents of a state is a
quid for a quo that consists of the state’s extending protection or
other services to the nonresident.”). The relatedness requirement’s
function is to maintain balance in this reciprocal exchange. In order
to do so, it must keep the jurisdictional exposure that results from
a contact closely tailored to that contact’s accompanying
substantive obligations. The causal connection can be somewhat
looser than the tort concept of proximate causation, see Miller
Yacht, 384 F.3d at 99-100, but it must nonetheless be intimate
enough to keep the quid pro quo proportional and personal
jurisdiction reasonably foreseeable.
3.
Applying these principles to this case, we first note that
15
Sandy Lane’s Pennsylvania contacts are a but-for cause of Mr.
O’Connor’s injury. Mr. O’Connor’s affidavit claims that he
decided to purchase spa treatments “as a result” of Sandy Lane’s
solicitation. App. 281. We accept that statement as true because
the District Court held no evidentiary hearing. See Miller Yacht,
384 F.3d at 97. Thus, but for the mailing of the brochure, Mr.
O’Connor never would have purchased a massage, and he would
not have suffered a massage-related injury.
The link is also much closer than mere but-for causation.
Pennsylvania law allows individuals and businesses to make and
enforce binding agreements. Sandy Lane availed itself of that
opportunity, and, through its mailings and phone calls to
Pennsylvania, it formed a contract for spa services. The hotel
acquired certain rights under that contract, and with those rights
came accompanying obligations. Like all services contracts, the
spa agreement contained an implied promise that Sandy Lane
would “exercise due care in performing the services required.” See
Richard A. Lord, 23 Williston on Contracts § 63.25, at 525-26 (4th
ed. 2002). In the case before us, the O’Connors contend that Sandy
Lane failed to do exactly that. As such, their claims directly and
closely relate to a continuing contractual obligation that arose in
Pennsylvania.
True enough, the O’Connors’ claims sound in tort, not
contract. They claim that Sandy Lane breached a social duty that
existed independent of and in addition to the hotel’s contractual
obligations. See St. Clair v. B&L Paving Co., 411 A.2d 525, 526
(Pa. Super. Ct. 1979) (“Those who undertake an activity pursuant
to a contract have both a self-imposed contractual duty and a social
duty imposed by the law to act without negligence.”).13 Our
relatedness analysis, however, requires neither proximate causation
nor substantive relevance. See Miller Yacht, 384 F.3d at 99-100.
13
We cite Pennsylvania authorities only to illustrate the link
between the contractual obligation that arose in Pennsylvania and
the tort duty that arose in Barbados. We express no opinion on
choice of law. See Burger King, 471 U.S. at 481-82 (“[C]hoice-of-
law analysis . . . is distinct from minimum-contacts jurisdictional
analysis.”) (emphasis removed).
16
It is enough that a meaningful link exists between a legal obligation
that arose in the forum and the substance of the plaintiffs’ claims.
The O’Connors claim Sandy Lane breached a duty that is identical
to a contractual duty assumed by the hotel in Pennsylvania. So
intimate a link justifies the exercise of specific jurisdiction as a quid
pro quo for Sandy Lane’s enjoyment of the right to form binding
contracts in Pennsylvania. We therefore hold that the O’Connors’
claims “arise out of or relate to” Sandy Lane’s Pennsylvania
contacts.
C.
Having determined that minimum contacts exist, we next
consider whether the exercise of jurisdiction would otherwise
comport with “traditional notions of fair play and substantial
justice.” See Int’l Shoe, 326 U.S. at 316. The existence of
minimum contacts makes jurisdiction presumptively constitutional,
and the defendant “must present a compelling case that the presence
of some other considerations would render jurisdiction
unreasonable.” See Burger King, 471 U.S. at 477; see also
Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 207
(3d Cir. 1998) (noting that if minimum contacts are present, then
jurisdiction will be unreasonable only in “rare cases”); Grand
Entm’t Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 483 (3d
Cir. 1993) (“The burden on a defendant who wishes to show an
absence of fairness or lack of substantial justice is heavy.”).
The Supreme Court has identified several factors that courts
should consider when balancing jurisdictional reasonableness.
Among them are “the burden on the defendant, the forum State’s
interest in adjudicating the dispute, the plaintiff’s interest in
obtaining convenient and effective relief, the interstate [and
international] judicial system’s interest in obtaining the most
efficient resolution of controversies,” Burger King, 471 U.S. at 477
(quotation marks omitted), and “[t]he procedural and substantive
interests of other nations.” Asahi Metal Indus. Co. v. Superior
Court, 480 U.S. 102, 113, 115 (1987).
Several of these factors weigh in favor of litigating this
dispute in Barbados. First, the burden on the defendant is a
“primary concern” in any case, see World-Wide, 444 U.S. at 292,
17
and it is all the more significant here due to “[t]he unique burdens
placed upon one who must defend oneself in a foreign legal
system.” See Asahi, 480 U.S. at 114. Sandy Lane’s representatives
will have to travel 2,000 miles to litigate in Pennsylvania, and the
company must also familiarize itself with a foreign legal system.
Second, the efficiency factor also tips toward Sandy Lane. See
Burger King, 471 U.S. at 477. Most of the witnesses are in
Barbados, the evidence is there, and it is not at all clear that
Pennsylvania law will apply to the merits. See Griffith v. United
Air Lines, 203 A.2d 796, 805-06 (Pa. 1964) (holding that under
Pennsylvania choice-of-law rules courts should apply the law “of
the jurisdiction most intimately concerned with the outcome of the
particular litigation”). Third, Barbados has a considerable
“substantive interest” in determining the rights and liabilities of its
own domestic corporations. See Asahi, 480 U.S. at 115. All told,
these factors tend to show that litigating this dispute in Barbados
might well be a reasonable and efficient outcome.
Sandy Lane, though, has a much higher hill to climb.
Because it has minimum contacts with Pennsylvania under the first
two steps of our analysis, it must make a “compelling case” that
litigation in Pennsylvania would be unreasonable and unfair. See
Burger King, 471 U.S. at 477. As the Supreme Court has stated,
“[w]hen minimum contacts have been established, often the
interests of the plaintiff and the forum in the exercise of jurisdiction
will justify even the serious burdens placed on the alien defendant.”
See Asahi, 480 U.S. at 114. Indeed, Asahi is the only Supreme
Court case ever to present so compelling a situation, and it involved
a suit in California between parties from Japan and Taiwan. See id.
Unlike California’s “slight” interest in that case, id., Pennsylvania
has a “manifest interest in providing effective means of redress”
when a foreign corporation reaches into the state and solicits its
citizens. See McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223
(1957). Furthermore, requiring the O’Connors to litigate in
Barbados would saddle them with a burden at least equal to Sandy
Lane’s burden in Pennsylvania.
In light of these countervailing interests, we conclude that
this is not one of those “rare” and “compelling” cases where
jurisdiction would be unreasonable despite the presence of
minimum contacts. The burdens on Sandy Lane are substantial, but
18
they do not entirely dwarf the interests of the O’Connors and the
forum state. Pennsylvania may not be the best forum—it may not
even be a convenient one.14 But when minimum contacts exist, due
process demands no more than a reasonable forum. Sandy Lane
has failed to present a compelling case of unreasonableness, so we
hold that jurisdiction in Pennsylvania “comport[s] with fair play
and substantial justice.” See Burger King, 471 U.S. at 476.
IV.
In sum, the O’Connors have alleged facts that, if true,
establish personal jurisdiction over Sandy Lane in Pennsylvania.
Sandy Lane purposefully directed its activities at Pennsylvania, the
O’Connors’ claims arise from or relate to those activities, and no
other factors render jurisdiction in Pennsylvania unfair or
unreasonable. The District Court therefore had specific jurisdiction
to adjudicate the O’Connors’ claims. We will reverse its judgment
and remand the case for further proceedings.
14
Sandy Lane also moved to dismiss under the doctrine of
forum non conveniens. We express no opinion on that motion and
leave it for the District Court to consider in the first instance. Cf.
Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 150
(1st Cir. 1995) (”The doctrines of personal jurisdiction and forum
non conveniens share certain similarities, but they embody distinct
concepts and should not casually be conflated.”).
19