J. McIntyre Machinery, Ltd. v. Nicastro ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
J. MCINTYRE MACHINERY, LTD. v. NICASTRO,
INDIVIDUALLY AND AS ADMINISTRATOR OF
THE ESTATE OF NICASTRO
CERTIORARI TO THE SUPREME COURT OF NEW JERSEY
No. 09–1343. Argued January 11, 2011—Decided June 27, 2011
Respondent Nicastro injured his hand while using a metal-shearing
machine that petitioner J. McIntyre Machinery, Ltd. (J. McIntyre),
manufactured in England, where the company is incorporated and
operates. Nicastro filed this products-liability suit in a state court in
New Jersey, where the accident occurred, but J. McIntyre sought to
dismiss the suit for want of personal jurisdiction. Nicastro’s jurisdic
tional claim was based on three primary facts: A U. S. distributor
agreed to sell J. McIntyre’s machines in this country; J. McIntyre of
ficials attended trade shows in several States, albeit not in New Jer
sey; and no more than four J. McIntyre machines (the record suggests
only one), including the one at issue, ended up in New Jersey. The
State Supreme Court held that New Jersey’s courts can exercise ju
risdiction over a foreign manufacturer without contravening the
Fourteenth Amendment’s Due Process Clause so long as the manu
facturer knew or reasonably should have known that its products are
distributed through a nationwide distribution system that might lead
to sales in any of the States. Invoking this “stream-of-commerce”
doctrine of jurisdiction, the court relied in part on Asahi Metal Indus
try Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102. Apply
ing its test, the court concluded that J. McIntyre was subject to juris
diction in New Jersey, even though at no time had it advertised in,
sent goods to, or in any relevant sense targeted the State.
Held: The judgment is reversed.
201 N. J. 48, 987 A.2d 575, reversed.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE SCALIA,
and JUSTICE THOMAS, concluded that because J. McIntyre never en
2 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
Syllabus
gaged in any activities in New Jersey that revealed an intent to in
voke or benefit from the protection of the State’s laws, New Jersey is
without power to adjudge the company’s rights and liabilities, and its
exercise of jurisdiction would violate due process. Pp. 4–12.
(a) Due process protects the defendant’s right not to be coerced ex
cept by lawful judicial power. A court may subject a defendant to
judgment only when the defendant has sufficient contacts with the
sovereign “such that the maintenance of the suit does not offend ‘tra
ditional notions of fair play and substantial justice.’ ” International
Shoe Co. v. Washington, 326 U.S. 310, 316. Freeform fundamental
fairness notions divorced from traditional practice cannot transform a
judgment rendered without authority into law. As a general rule, the
sovereign’s exercise of power requires some act by which the defen
dant “purposefully avails itself of the privilege of conducting activi
ties within the forum State, thus invoking the benefits and protec
tions of its laws.” Hanson v. Denckla, 357 U.S. 235, 253. In cases
like this one, it is the defendant’s purposeful availment that makes
jurisdiction consistent with “fair play and substantial justice” no
tions. No “stream-of-commerce” doctrine can displace that general
rule for products-liability cases.
The rules and standards for determining state jurisdiction over an
absent party have been unclear because of decades-old questions left
open in Asahi. The imprecision arising from Asahi, for the most part,
results from its statement of the relation between jurisdiction and
the “stream of commerce.” That concept, like other metaphors, has
its deficiencies as well as its utilities. It refers to the movement of
goods from manufacturers through distributors to consumers, yet be
yond that descriptive purpose its meaning is far from exact. A defen
dant’s placement of goods into commerce “with the expectation that
they will be purchased by consumers within the forum State” may
indicate purposeful availment. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 298. But that does not amend the general
rule of personal jurisdiction. The principal inquiry in cases of this
sort is whether the defendant’s activities manifest an intention to
submit to the power of a sovereign. See, e.g., Hanson, supra, at 253.
In Asahi, Justice Brennan’s concurrence (joined by three other Jus
tices) discarded the central concept of sovereign authority in favor of
fairness and foreseeability considerations on the theory that the de
fendant’s ability to anticipate suit is the touchstone of jurisdiction.
480 U.S., at 117. However, Justice O’Connor’s lead opinion (also for
four Justices) stated that “[t]he ‘substantial connection’ between the
defendant and the forum State necessary for a finding of minimum
contacts must come about by an action of the defendant purposefully
directed toward the forum State.” Id., at 112. Since Asahi, the courts
Cite as: 564 U. S. ____ (2011) 3
Syllabus
have sought to reconcile the competing opinions. But Justice Bren
nan’s rule based on general notions of fairness and foreseeability is
inconsistent with the premises of lawful judicial power under this
Court’s precedents. Today’s conclusion that the authority to subject a
defendant to judgment depends on purposeful availment is consistent
with Justice O’Connor’s Asahi opinion. Pp. 4–10.
(b) Nicastro has not established that J. McIntyre engaged in con
duct purposefully directed at New Jersey. The company had no office
in New Jersey; it neither paid taxes nor owned property there; and it
neither advertised in, nor sent any employees to, the State. Indeed,
the trial court found that petitioner did not have a single contact with
the State apart from the fact that the machine in question ended up
there. Neither these facts, nor the three on which Nicastro centered
his jurisdictional claim, show that J. McIntyre purposefully availed
itself of the New Jersey market. Pp. 10–12.
JUSTICE BREYER, joined by JUSTICE ALITO, agreed that the New Jer
sey Supreme Court’s judgment must be reversed, but concluded that
because this case does not present issues arising from recent changes
in commerce and communication, it is unwise to announce a rule of
broad applicability without fully considering modern-day conse
quences. Rather, the outcome of the case is determined by the
Court’s precedents. Pp. 2–7.
(a) Based on the record, respondent Nicastro failed to meet his
burden to demonstrate that it was constitutionally proper to exercise
jurisdiction over petitioner J. McIntyre Machinery, Ltd. (British
Manufacturer). The three primary facts the state high court relied
on do not satisfy due process. None of the Court’s precedents finds
that a single isolated sale, even if accompanied by the kind of sales
effort indicated here, is sufficient. See World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286; Asahi Metal Industry Co. v. Superior
Court of Cal., Solano Cty., 480 U.S. 102. Here, the relevant facts
show no “regular . . . flow” or “regular course” of sales in New Jersey,
id., at 117 (Brennan, J., concurring in part and concurring in judg
ment); id., at 122 (Stevens, J., concurring in part and concurring in
judgment); and there is no “something more,” such as special state
related design, advertising, advice, or marketing, id., at 111, 112
(opinion of O’Connor, J.), that would warrant the assertion of juris
diction. Nicastro has shown no specific effort by the British Manu
facturer to sell in New Jersey. And he has not otherwise shown that
the British Manufacturer “ ‘purposefully avail[ed] itself of the privi
lege of conducting activities’ ” within New Jersey, or that it delivered
its goods in the stream of commerce “with the expectation that they
will be purchased” by New Jersey users. World-Wide Volkswagen,
supra, at 297–298. Pp. 2–4.
4 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
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(b) JUSTICE BREYER would not go further. Because the incident at
issue does not implicate modern concerns, and because the factual re
cord leaves many open questions, this is an unsuitable vehicle for
making broad pronouncements that refashion basic jurisdictional
rules. At a minimum, he would not work such a change to the law in
the way either the plurality or the New Jersey Supreme Court sug
gests without a better understanding of the relevant contemporary
commercial circumstances. Insofar as such considerations are rele
vant to any change in present law, they might be presented in a case
(unlike the present one) in which the Solicitor General participates.
Pp. 4–7.
KENNEDY, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and SCALIA and THOMAS, JJ., joined.
BREYER, J., filed an opinion concurring in the judgment, in which ALITO,
J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR
and KAGAN, JJ., joined.
Cite as: 564 U. S. ____ (2011) 1
Opinion of KENNEDY, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1343
_________________
J. MCINTYRE MACHINERY, LTD., PETITIONER v.
ROBERT NICASTRO, INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF
ROSEANNE NICASTRO
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW
JERSEY
[June 27, 2011]
JUSTICE KENNEDY announced the judgment of the Court
and delivered an opinion, in which THE CHIEF JUSTICE,
JUSTICE SCALIA, and JUSTICE THOMAS join.
Whether a person or entity is subject to the jurisdiction
of a state court despite not having been present in the
State either at the time of suit or at the time of the alleged
injury, and despite not having consented to the exercise of
jurisdiction, is a question that arises with great frequency
in the routine course of litigation. The rules and stan
dards for determining when a State does or does not have
jurisdiction over an absent party have been unclear be
cause of decades-old questions left open in Asahi Metal
Industry Co. v. Superior Court of Cal., Solano Cty., 480
U.S. 102 (1987).
Here, the Supreme Court of New Jersey, relying in part
on Asahi, held that New Jersey’s courts can exercise juris
diction over a foreign manufacturer of a product so long as
the manufacturer “knows or reasonably should know that
its products are distributed through a nationwide distribu
2 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
Opinion of KENNEDY, J.
tion system that might lead to those products being sold in
any of the fifty states.” Nicastro v. McIntyre Machinery
America, Ltd., 201 N. J. 48, 76, 77, 987 A.2d 575, 591, 592
(2010). Applying that test, the court concluded that a
British manufacturer of scrap metal machines was subject
to jurisdiction in New Jersey, even though at no time had
it advertised in, sent goods to, or in any relevant sense
targeted the State.
That decision cannot be sustained. Although the New
Jersey Supreme Court issued an extensive opinion with care
ful attention to this Court’s cases and to its own pre
cedent, the “stream of commerce” metaphor carried the
decision far afield. Due process protects the defendant’s
right not to be coerced except by lawful judicial power. As
a general rule, the exercise of judicial power is not lawful
unless the defendant “purposefully avails itself of the
privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its laws.”
Hanson v. Denckla, 357 U.S. 235, 253 (1958). There may
be exceptions, say, for instance, in cases involving an
intentional tort. But the general rule is applicable in this
products-liability case, and the so-called “stream-of
commerce” doctrine cannot displace it.
I
This case arises from a products-liability suit filed in
New Jersey state court. Robert Nicastro seriously injured
his hand while using a metal-shearing machine manufac
tured by J. McIntyre Machinery, Ltd. (J. McIntyre). The
accident occurred in New Jersey, but the machine was
manufactured in England, where J. McIntyre is incorpo
rated and operates. The question here is whether the New
Jersey courts have jurisdiction over J. McIntyre, notwith
standing the fact that the company at no time either
marketed goods in the State or shipped them there. Ni
castro was a plaintiff in the New Jersey trial court and is
Cite as: 564 U. S. ____ (2011) 3
Opinion of KENNEDY, J.
the respondent here; J. McIntyre was a defendant and is
now the petitioner.
At oral argument in this Court, Nicastro’s counsel
stressed three primary facts in defense of New Jersey’s as
sertion of jurisdiction over J. McIntyre. See Tr. of Oral
Arg. 29–30.
First, an independent company agreed to sell J. McIn
tyre’s machines in the United States. J. McIntyre itself
did not sell its machines to buyers in this country beyond
the U. S. distributor, and there is no allegation that the
distributor was under J. McIntyre’s control.
Second, J. McIntyre officials attended annual conven
tions for the scrap recycling industry to advertise J. Mc-
Intyre’s machines alongside the distributor. The conven
tions took place in various States, but never in New
Jersey.
Third, no more than four machines (the record suggests
only one, see App. to Pet. for Cert. 130a), including the
machine that caused the injuries that are the basis for this
suit, ended up in New Jersey.
In addition to these facts emphasized by petitioner, the
New Jersey Supreme Court noted that J. McIntyre held
both United States and European patents on its recycling
technology. 201 N. J., at 55, 987 A.2d, at 579. It also
noted that the U. S. distributor “structured [its] adver
tising and sales efforts in accordance with” J. McIntyre’s
“direction and guidance whenever possible,” and that “at
least some of the machines were sold on consignment to”
the distributor. Id., at 55, 56, 987 A.2d, at 579 (internal
quotation marks omitted).
In light of these facts, the New Jersey Supreme Court
concluded that New Jersey courts could exercise jurisdic
tion over petitioner without contravention of the Due
Process Clause. Jurisdiction was proper, in that court’s
view, because the injury occurred in New Jersey; because
petitioner knew or reasonably should have known “that its
4 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
Opinion of KENNEDY, J.
products are distributed through a nationwide distribution
system that might lead to those products being sold in any
of the fifty states”; and because petitioner failed to “take
some reasonable step to prevent the distribution of its prod
ucts in this State.” Id., at 77, 987 A. 2d, at 592.
Both the New Jersey Supreme Court’s holding and its
account of what it called “[t]he stream-of-commerce doc
trine of jurisdiction,” id., at 80, 987 A. 2d, at 594, were
incorrect, however. This Court’s Asahi decision may be
responsible in part for that court’s error regarding the
stream of commerce, and this case presents an opportunity
to provide greater clarity.
II
The Due Process Clause protects an individual’s right to
be deprived of life, liberty, or property only by the exercise
of lawful power. Cf. Giaccio v. Pennsylvania, 382 U.S.
399, 403 (1966) (The Clause “protect[s] a person against
having the Government impose burdens upon him except
in accordance with the valid laws of the land”). This is no
less true with respect to the power of a sovereign to re
solve disputes through judicial process than with respect
to the power of a sovereign to prescribe rules of conduct for
those within its sphere. See Steel Co. v. Citizens for Bet
ter Environment, 523 U.S. 83, 94 (1998) (“Jurisdiction is
power to declare the law”). As a general rule, neither
statute nor judicial decree may bind strangers to the
State. Cf. Burnham v. Superior Court of Cal., County of
Marin, 495 U.S. 604, 608–609 (1990) (opinion of SCALIA,
J.) (invoking “the phrase coram non judice, ‘before a per
son not a judge’—meaning, in effect, that the proceeding
in question was not a judicial proceeding because lawful
judicial authority was not present, and could therefore not
yield a judgment”)
A court may subject a defendant to judgment only when
the defendant has sufficient contacts with the sovereign
Cite as: 564 U. S. ____ (2011) 5
Opinion of KENNEDY, J.
“such that the maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.’ ”
International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)). Freeform notions of fundamental fairness di
vorced from traditional practice cannot transform a judg
ment rendered in the absence of authority into law. As a
general rule, the sovereign’s exercise of power requires
some act by which the defendant “purposefully avails itself
of the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its
laws,” Hanson, 357 U.S., at 253, though in some cases, as
with an intentional tort, the defendant might well fall
within the State’s authority by reason of his attempt to
obstruct its laws. In products-liability cases like this one,
it is the defendant’s purposeful availment that makes
jurisdiction consistent with “traditional notions of fair play
and substantial justice.”
A person may submit to a State’s authority in a number
of ways. There is, of course, explicit consent. E.g., In
surance Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 703 (1982). Presence within a State
at the time suit commences through service of process is
another example. See Burnham, supra. Citizenship or
domicile—or, by analogy, incorporation or principal place
of business for corporations—also indicates general sub
mission to a State’s powers. Goodyear Dunlop Tires Op
erations, S. A. v. Brown, post, p. __. Each of these exam
ples reveals circumstances, or a course of conduct, from
which it is proper to infer an intention to benefit from and
thus an intention to submit to the laws of the forum State.
Cf. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476
(1985). These examples support exercise of the general
jurisdiction of the State’s courts and allow the State to
resolve both matters that originate within the State and
those based on activities and events elsewhere. Helicop
6 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
Opinion of KENNEDY, J.
teros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408,
414, and n. 9 (1984). By contrast, those who live or oper
ate primarily outside a State have a due process right not
to be subjected to judgment in its courts as a general
matter.
There is also a more limited form of submission to a
State’s authority for disputes that “arise out of or are con
nected with the activities within the state.” International
Shoe Co., supra, at 319. Where a defendant “purposefully
avails itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and
protections of its laws,” Hanson, supra, at 253, it submits
to the judicial power of an otherwise foreign sovereign to
the extent that power is exercised in connection with the
defendant’s activities touching on the State. In other
words, submission through contact with and activity
directed at a sovereign may justify specific jurisdiction “in
a suit arising out of or related to the defendant’s contacts
with the forum.” Helicopteros, supra, at 414, n. 8; see also
Goodyear, post, at 2.
The imprecision arising from Asahi, for the most part,
results from its statement of the relation between jurisdic
tion and the “stream of commerce.” The stream of com
merce, like other metaphors, has its deficiencies as well as
its utility. It refers to the movement of goods from manu
facturers through distributors to consumers, yet beyond
that descriptive purpose its meaning is far from exact.
This Court has stated that a defendant’s placing goods
into the stream of commerce “with the expectation that
they will be purchased by consumers within the forum
State” may indicate purposeful availment. World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980)
(finding that expectation lacking). But that statement
does not amend the general rule of personal jurisdiction.
It merely observes that a defendant may in an appropriate
case be subject to jurisdiction without entering the
Cite as: 564 U. S. ____ (2011) 7
Opinion of KENNEDY, J.
forum—itself an unexceptional proposition—as where man
ufacturers or distributors “seek to serve” a given State’s
market. Id., at 295. The principal inquiry in cases of
this sort is whether the defendant’s activities manifest
an intention to submit to the power of a sovereign. In
other words, the defendant must “purposefully avai[l] it
self of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of
its laws.” Hanson, supra, at 253; Insurance Corp., supra,
at 704–705 (“[A]ctions of the defendant may amount to a
legal submission to the jurisdiction of the court”). Some
times a defendant does so by sending its goods rather than
its agents. The defendant’s transmission of goods permits
the exercise of jurisdiction only where the defendant can
be said to have targeted the forum; as a general rule, it is
not enough that the defendant might have predicted that
its goods will reach the forum State.
In Asahi, an opinion by Justice Brennan for four Jus
tices outlined a different approach. It discarded the cen
tral concept of sovereign authority in favor of considera
tions of fairness and foreseeability. As that concurrence
contended, “jurisdiction premised on the placement of a
product into the stream of commerce [without more] is
consistent with the Due Process Clause,” for “[a]s long as a
participant in this process is aware that the final product
is being marketed in the forum State, the possibility of a
lawsuit there cannot come as a surprise.” 480 U.S., at
117 (opinion concurring in part and concurring in judg
ment). It was the premise of the concurring opinion that
the defendant’s ability to anticipate suit renders the asser
tion of jurisdiction fair. In this way, the opinion made
foreseeability the touchstone of jurisdiction.
The standard set forth in Justice Brennan’s concurrence
was rejected in an opinion written by Justice O’Connor;
but the relevant part of that opinion, too, commanded the
assent of only four Justices, not a majority of the Court.
8 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
Opinion of KENNEDY, J.
That opinion stated: “The ‘substantial connection’ between
the defendant and the forum State necessary for a finding
of minimum contacts must come about by an action of the
defendant purposefully directed toward the forum State.
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.” Id., at 112 (emphasis
deleted; citations omitted).
Since Asahi was decided, the courts have sought to rec
oncile the competing opinions. But Justice Brennan’s con
currence, advocating a rule based on general notions of
fairness and foreseeability, is inconsistent with the prem
ises of lawful judicial power. This Court’s precedents
make clear that it is the defendant’s actions, not his expec
tations, that empower a State’s courts to subject him to
judgment.
The conclusion that jurisdiction is in the first instance
a question of authority rather than fairness explains, for
example, why the principal opinion in Burnham “con
ducted no independent inquiry into the desirability or
fairness” of the rule that service of process within a State
suffices to establish jurisdiction over an otherwise foreign
defendant. 495 U.S., at 621. As that opinion explained,
“[t]he view developed early that each State had the power
to hale before its courts any individual who could be found
within its borders.” Id., at 610. Furthermore, were gen
eral fairness considerations the touchstone of jurisdiction,
a lack of purposeful availment might be excused where
carefully crafted judicial procedures could otherwise pro
tect the defendant’s interests, or where the plaintiff would
suffer substantial hardship if forced to litigate in a foreign
forum. That such considerations have not been deemed
controlling is instructive. See, e.g., World-Wide Volks
wagen, supra, at 294.
Two principles are implicit in the foregoing. First, per
sonal jurisdiction requires a forum-by-forum, or sovereign
Cite as: 564 U. S. ____ (2011) 9
Opinion of KENNEDY, J.
by-sovereign, analysis. The question is whether a de
fendant has followed a course of conduct directed at the
society or economy existing within the jurisdiction of a
given sovereign, so that the sovereign has the power to
subject the defendant to judgment concerning that con
duct. Personal jurisdiction, of course, restricts “judicial
power not as a matter of sovereignty, but as a matter of
individual liberty,” for due process protects the individ
ual’s right to be subject only to lawful power. Insurance
Corp., 456 U.S., at 702. But whether a judicial judgment
is lawful depends on whether the sovereign has authority
to render it.
The second principle is a corollary of the first. Because
the United States is a distinct sovereign, a defendant may
in principle be subject to the jurisdiction of the courts of
the United States but not of any particular State. This is
consistent with the premises and unique genius of our
Constitution. Ours is “a legal system unprecedented in
form and design, establishing two orders of government,
each with its own direct relationship, its own privity, its
own set of mutual rights and obligations to the people who
sustain it and are governed by it.” U. S. Term Limits,
Inc. v. Thornton, 514 U.S. 779, 838 (1995) (KENNEDY, J.,
concurring). For jurisdiction, a litigant may have the
requisite relationship with the United States Government
but not with the government of any individual State. That
would be an exceptional case, however. If the defendant is
a domestic domiciliary, the courts of its home State are
available and can exercise general jurisdiction. And if
another State were to assert jurisdiction in an inappropri
ate case, it would upset the federal balance, which posits
that each State has a sovereignty that is not subject to
unlawful intrusion by other States. Furthermore, foreign
corporations will often target or concentrate on particular
States, subjecting them to specific jurisdiction in those
forums.
10 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
Opinion of KENNEDY, J.
It must be remembered, however, that although this
case and Asahi both involve foreign manufacturers, the
undesirable consequences of Justice Brennan’s approach
are no less significant for domestic producers. The owner
of a small Florida farm might sell crops to a large nearby
distributor, for example, who might then distribute them
to grocers across the country. If foreseeability were the
controlling criterion, the farmer could be sued in Alaska or
any number of other States’ courts without ever leaving
town. And the issue of foreseeability may itself be con
tested so that significant expenses are incurred just on the
preliminary issue of jurisdiction. Jurisdictional rules
should avoid these costs whenever possible.
The conclusion that the authority to subject a defendant
to judgment depends on purposeful availment, consistent
with Justice O’Connor’s opinion in Asahi, does not by itself
resolve many difficult questions of jurisdiction that will
arise in particular cases. The defendant’s conduct and
the economic realities of the market the defendant seeks
to serve will differ across cases, and judicial exposition
will, in common-law fashion, clarify the contours of that
principle.
III
In this case, petitioner directed marketing and sales
efforts at the United States. It may be that, assuming it
were otherwise empowered to legislate on the subject, the
Congress could authorize the exercise of jurisdiction in
appropriate courts. That circumstance is not presented in
this case, however, and it is neither necessary nor appro
priate to address here any constitutional concerns that
might be attendant to that exercise of power. See Asahi,
480 U.S., at 113, n. Nor is it necessary to determine what
substantive law might apply were Congress to authorize
jurisdiction in a federal court in New Jersey. See Hanson,
357 U.S., at 254 (“The issue is personal jurisdiction, not
Cite as: 564 U. S. ____ (2011) 11
Opinion of KENNEDY, J.
choice of law”). A sovereign’s legislative authority to
regulate conduct may present considerations different
from those presented by its authority to subject a defen
dant to judgment in its courts. Here the question concerns
the authority of a New Jersey state court to exercise ju
risdiction, so it is petitioner’s purposeful contacts with
New Jersey, not with the United States, that alone are
relevant.
Respondent has not established that J. McIntyre en
gaged in conduct purposefully directed at New Jersey.
Recall that respondent’s claim of jurisdiction centers on
three facts: The distributor agreed to sell J. McIntyre’s
machines in the United States; J. McIntyre officials at
tended trade shows in several States but not in New Jer
sey; and up to four machines ended up in New Jersey. The
British manufacturer had no office in New Jersey; it nei
ther paid taxes nor owned property there; and it neither
advertised in, nor sent any employees to, the State. In
deed, after discovery the trial court found that the “defen
dant does not have a single contact with New Jersey short
of the machine in question ending up in this state.” App.
to Pet. for Cert. 130a. These facts may reveal an intent to
serve the U. S. market, but they do not show that J. McIn
tyre purposefully availed itself of the New Jersey market.
It is notable that the New Jersey Supreme Court ap
pears to agree, for it could “not find that J. McIntyre had a
presence or minimum contacts in this State—in any juris
prudential sense—that would justify a New Jersey court
to exercise jurisdiction in this case.” 201 N. J., at 61, 987
A.2d, at 582. The court nonetheless held that petitioner
could be sued in New Jersey based on a “stream-of
commerce theory of jurisdiction.” Ibid. As discussed,
however, the stream-of-commerce metaphor cannot super
sede either the mandate of the Due Process Clause or the
limits on judicial authority that Clause ensures. The New
Jersey Supreme Court also cited “significant policy rea
12 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
Opinion of KENNEDY, J.
sons” to justify its holding, including the State’s “strong
interest in protecting its citizens from defective products.”
Id., at 75, 987 A. 2d, at 590. That interest is doubtless
strong, but the Constitution commands restraint before
discarding liberty in the name of expediency.
* * *
Due process protects petitioner’s right to be subject only
to lawful authority. At no time did petitioner engage in
any activities in New Jersey that reveal an intent to in
voke or benefit from the protection of its laws. New Jersey
is without power to adjudge the rights and liabilities of J.
McIntyre, and its exercise of jurisdiction would violate due
process. The contrary judgment of the New Jersey Su
preme Court is
Reversed.
Cite as: 564 U. S. ____ (2011) 1
BREYER, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1343
_________________
J. MCINTYRE MACHINERY, LTD., PETITIONER v.
ROBERT NICASTRO, INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF
ROSEANNE NICASTRO
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW
JERSEY
[June 27, 2011]
JUSTICE BREYER, with whom JUSTICE ALITO joins, con
curring in the judgment.
The Supreme Court of New Jersey adopted a broad
understanding of the scope of personal jurisdiction based
on its view that “[t]he increasingly fast-paced globalization
of the world economy has removed national borders as
barriers to trade.” Nicastro v. McIntyre Machinery Amer
ica, Ltd., 201 N. J. 48, 52, 987 A.2d 575, 577 (2010). I do
not doubt that there have been many recent changes in
commerce and communication, many of which are not
anticipated by our precedents. But this case does not
present any of those issues. So I think it unwise to an
nounce a rule of broad applicability without full considera
tion of the modern-day consequences.
In my view, the outcome of this case is determined by
our precedents. Based on the facts found by the New
Jersey courts, respondent Robert Nicastro failed to meet
his burden to demonstrate that it was constitutionally
proper to exercise jurisdiction over petitioner J. McIntyre
Machinery, Ltd. (British Manufacturer), a British firm
that manufactures scrap-metal machines in Great Britain
and sells them through an independent distributor in the
United States (American Distributor). On that basis, I
2 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
BREYER, J., concurring in judgment
agree with the plurality that the contrary judgment of the
Supreme Court of New Jersey should be reversed.
I
In asserting jurisdiction over the British Manufacturer,
the Supreme Court of New Jersey relied most heavily on
three primary facts as providing constitutionally sufficient
“contacts” with New Jersey, thereby making it funda-
mentally fair to hale the British Manufacturer before its
courts: (1) The American Distributor on one occasion sold
and shipped one machine to a New Jersey customer,
namely, Mr. Nicastro’s employer, Mr. Curcio; (2) the Brit
ish Manufacturer permitted, indeed wanted, its independ
ent American Distributor to sell its machines to anyone in
America willing to buy them; and (3) representatives of
the British Manufacturer attended trade shows in “such
cities as Chicago, Las Vegas, New Orleans, Orlando, San
Diego, and San Francisco.” Id., at 54–55, 987 A. 2d, at
578–579. In my view, these facts do not provide contacts
between the British firm and the State of New Jersey
constitutionally sufficient to support New Jersey’s asser
tion of jurisdiction in this case.
None of our precedents finds that a single isolated sale,
even if accompanied by the kind of sales effort indicated
here, is sufficient. Rather, this Court’s previous holdings
suggest the contrary. The Court has held that a single
sale to a customer who takes an accident-causing product
to a different State (where the accident takes place) is not
a sufficient basis for asserting jurisdiction. See World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).
And the Court, in separate opinions, has strongly sug
gested that a single sale of a product in a State does not
constitute an adequate basis for asserting jurisdiction over
an out-of-state defendant, even if that defendant places
his goods in the stream of commerce, fully aware (and
hoping) that such a sale will take place. See Asahi Metal
Cite as: 564 U. S. ____ (2011) 3
BREYER, J., concurring in judgment
Industry Co. v. Superior Court of Cal., Solano Cty., 480
U.S. 102, 111, 112 (1987) (opinion of O’Connor, J.) (requir
ing “something more” than simply placing “a product
into the stream of commerce,” even if defendant is “awar[e]”
that the stream “may or will sweep the product into the
forum State”); id., at 117 (Brennan, J., concurring in part
and concurring in judgment) (jurisdiction should lie where
a sale in a State is part of “the regular and anticipated
flow” of commerce into the State, but not where that sale
is only an “edd[y],” i.e., an isolated occurrence); id., at 122
(Stevens, J., concurring in part and concurring in judg
ment) (indicating that “the volume, the value, and the
hazardous character” of a good may affect the jurisdic
tional inquiry and emphasizing Asahi’s “regular course of
dealing”).
Here, the relevant facts found by the New Jersey Su
preme Court show no “regular . . . flow” or “regular course”
of sales in New Jersey; and there is no “something more,”
such as special state-related design, advertising, advice,
marketing, or anything else. Mr. Nicastro, who here bears
the burden of proving jurisdiction, has shown no specific
effort by the British Manufacturer to sell in New Jersey.
He has introduced no list of potential New Jersey custom
ers who might, for example, have regularly attended trade
shows. And he has not otherwise shown that the British
Manufacturer “purposefully avail[ed] itself of the privilege
of conducting activities” within New Jersey, or that it de
livered its goods in the stream of commerce “with the
expectation that they will be purchased” by New Jersey
users. World-Wide Volkswagen, supra, at 297–298 (inter
nal quotation marks omitted).
There may well have been other facts that Mr. Nicastro
could have demonstrated in support of jurisdiction. And
the dissent considers some of those facts. See post, at 3
(opinion of GINSBURG, J.) (describing the size and scope
of New Jersey’s scrap-metal business). But the plaintiff
4 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
BREYER, J., concurring in judgment
bears the burden of establishing jurisdiction, and here I
would take the facts precisely as the New Jersey Supreme
Court stated them. Insurance Corp. of Ireland v. Com
pagnie des Bauxites de Guinee, 456 U.S. 694, 709 (1982);
Blakey v. Continental Airlines, Inc., 164 N. J. 38, 71, 751
A.2d 538, 557 (2000); see 201 N. J., at 54–56, 987 A.2d, at
578–579; App. to Pet. for Cert. 128a–137a (trial court’s
“reasoning and finding(s)”).
Accordingly, on the record present here, resolving this
case requires no more than adhering to our precedents.
II
I would not go further. Because the incident at issue in
this case does not implicate modern concerns, and because
the factual record leaves many open questions, this is an
unsuitable vehicle for making broad pronouncements that
refashion basic jurisdictional rules.
A
The plurality seems to state strict rules that limit juris
diction where a defendant does not “inten[d] to submit to
the power of a sovereign” and cannot “be said to have
targeted the forum.” Ante, at 7. But what do those stan
dards mean when a company targets the world by selling
products from its Web site? And does it matter if, instead
of shipping the products directly, a company consigns the
products through an intermediary (say, Amazon.com) who
then receives and fulfills the orders? And what if the
company markets its products through popup advertise
ments that it knows will be viewed in a forum? Those
issues have serious commercial consequences but are
totally absent in this case.
B
But though I do not agree with the plurality’s seemingly
strict no-jurisdiction rule, I am not persuaded by the
absolute approach adopted by the New Jersey Supreme
Cite as: 564 U. S. ____ (2011) 5
BREYER, J., concurring in judgment
Court and urged by respondent and his amici. Under that
view, a producer is subject to jurisdiction for a products
liability action so long as it “knows or reasonably should
know that its products are distributed through a nation
wide distribution system that might lead to those products
being sold in any of the fifty states.” 201 N. J., at 76–77,
987 A.2d, at 592 (emphasis added). In the context of this
case, I cannot agree.
For one thing, to adopt this view would abandon the
heretofore accepted inquiry of whether, focusing upon the
relationship between “the defendant, the forum, and the
litigation,” it is fair, in light of the defendant’s contacts
with that forum, to subject the defendant to suit there.
Shaffer v. Heitner, 433 U.S. 186, 204 (1977) (emphasis
added). It would ordinarily rest jurisdiction instead upon
no more than the occurrence of a product-based accident in
the forum State. But this Court has rejected the notion
that a defendant’s amenability to suit “travel[s] with the
chattel.” World-Wide Volkswagen, 444 U.S., at 296.
For another, I cannot reconcile so automatic a rule
with the constitutional demand for “minimum contacts”
and “purposefu[l] avail[ment],” each of which rest upon a
particular notion of defendant-focused fairness. Id., at
291, 297 (internal quotation marks omitted). A rule like
the New Jersey Supreme Court’s would permit every State
to assert jurisdiction in a products-liability suit against
any domestic manufacturer who sells its products (made
anywhere in the United States) to a national distributor,
no matter how large or small the manufacturer, no matter
how distant the forum, and no matter how few the number
of items that end up in the particular forum at issue.
What might appear fair in the case of a large manufac
turer which specifically seeks, or expects, an equal-sized
distributor to sell its product in a distant State might
seem unfair in the case of a small manufacturer (say, an
Appalachian potter) who sells his product (cups and sau
6 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
BREYER, J., concurring in judgment
cers) exclusively to a large distributor, who resells a single
item (a coffee mug) to a buyer from a distant State (Ha
waii). I know too little about the range of these or in
between possibilities to abandon in favor of the more
absolute rule what has previously been this Court’s less
absolute approach.
Further, the fact that the defendant is a foreign, rather
than a domestic, manufacturer makes the basic fairness
of an absolute rule yet more uncertain. I am again less
certain than is the New Jersey Supreme Court that the
nature of international commerce has changed so sig-
nificantly as to require a new approach to personal
jurisdiction.
It may be that a larger firm can readily “alleviate the
risk of burdensome litigation by procuring insurance,
passing the expected costs on to customers, or, if the risks
are too great, severing its connection with the State.”
World-Wide Volkswagen, supra, at 297. But manufactur
ers come in many shapes and sizes. It may be fundamen
tally unfair to require a small Egyptian shirt maker, a
Brazilian manufacturing cooperative, or a Kenyan coffee
farmer, selling its products through international distribu
tors, to respond to products-liability tort suits in virtually
every State in the United States, even those in respect to
which the foreign firm has no connection at all but the sale
of a single (allegedly defective) good. And a rule like the
New Jersey Supreme Court suggests would require every
product manufacturer, large or small, selling to American
distributors to understand not only the tort law of every
State, but also the wide variance in the way courts within
different States apply that law. See, e.g., Dept. of Justice,
Bureau of Justice Statistics Bulletin, Tort Trials and
Verdicts in Large Counties, 2001, p. 11 (reporting percent
age of plaintiff winners in tort trials among 46 populous
counties, ranging from 17.9% (Worcester, Mass.) to 69.1%
(Milwaukee, Wis.)).
Cite as: 564 U. S. ____ (2011) 7
BREYER, J., concurring in judgment
C
At a minimum, I would not work such a change to the
law in the way either the plurality or the New Jersey
Supreme Court suggests without a better understanding
of the relevant contemporary commercial circumstances.
Insofar as such considerations are relevant to any change
in present law, they might be presented in a case (unlike
the present one) in which the Solicitor General partici
pates. Cf. Tr. of Oral Arg. in Goodyear Dunlop Tires Op
erations, S. A. v. Brown, O. T. 2010, No. 10–76, pp. 20–22
(Government declining invitation at oral argument to give
its views with respect to issues in this case).
This case presents no such occasion, and so I again re
iterate that I would adhere strictly to our precedents
and the limited facts found by the New Jersey Supreme
Court. And on those grounds, I do not think we can find
jurisdiction in this case. Accordingly, though I agree with
the plurality as to the outcome of this case, I concur only
in the judgment of that opinion and not its reasoning.
Cite as: 564 U. S. ____ (2011) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1343
_________________
J. MCINTYRE MACHINERY, LTD., PETITIONER v.
ROBERT NICASTRO, INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF
ROSEANNE NICASTRO
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW
JERSEY
[June 27, 2011]
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR
and JUSTICE KAGAN join, dissenting.
A foreign industrialist seeks to develop a market in the
United States for machines it manufactures. It hopes to
derive substantial revenue from sales it makes to United
States purchasers. Where in the United States buyers
reside does not matter to this manufacturer. Its goal is
simply to sell as much as it can, wherever it can. It ex
cludes no region or State from the market it wishes to
reach. But, all things considered, it prefers to avoid prod
ucts liability litigation in the United States. To that end,
it engages a U. S. distributor to ship its machines state
side. Has it succeeded in escaping personal jurisdiction in
a State where one of its products is sold and causes injury
or even death to a local user?
Under this Court’s pathmarking precedent in Interna
tional Shoe Co. v. Washington, 326 U.S. 310 (1945), and
subsequent decisions, one would expect the answer to be
unequivocally, “No.” But instead, six Justices of this
Court, in divergent opinions, tell us that the manufacturer
has avoided the jurisdiction of our state courts, except
perhaps in States where its products are sold in sizeable
quantities. Inconceivable as it may have seemed yester
2 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
GINSBURG, J., dissenting
day, the splintered majority today “turn[s] the clock back
to the days before modern long-arm statutes when a
manufacturer, to avoid being haled into court where a user
is injured, need only Pilate-like wash its hands of a prod
uct by having independent distributors market it.” Wein
traub, A Map Out of the Personal Jurisdiction Labyrinth,
28 U. C. Davis L. Rev. 531, 555 (1995).
I
On October 11, 2001, a three-ton metal shearing ma
chine severed four fingers on Robert Nicastro’s right hand.
Nicastro v. McIntyre Machinery America, Ltd., 201 N. J.
48, 53, 987 A.2d 575, 577 (2010); see App. 6a–8a (Com
plaint). Alleging that the machine was a dangerous prod
uct defectively made, Nicastro sought compensation from
the machine’s manufacturer, J. McIntyre Machinery Ltd.
(McIntyre UK). Established in 1872 as a United Kingdom
corporation, and headquartered in Nottingham, England,
McIntyre UK “designs, develops and manufactures a com
plete range of equipment for metal recycling.” Id., at
22a, 33a. The company’s product line, as advertised on
McIntyre UK’s Web site, includes “metal shears, balers,
cable and can recycling equipment, furnaces, casting equip
ment and . . . the world’s best aluminium dross process-
ing and cooling system.” Id., at 31a. McIntyre UK
holds both United States and European patents on its
technology. 201 N. J., at 55, 987 A.2d, at 579; App. 36a.
The machine that injured Nicastro, a “McIntyre Model
640 Shear,” sold in the United States for $24,900 in 1995,
id., at 43a, and features a “massive cutting capacity,” id.,
at 44a. According to McIntyre UK’s product brochure, the
machine is “use[d] throughout the [w]orld.” Ibid. McIn
tyre UK represented in the brochure that, by “incorpo
rat[ing] off-the-shelf hydraulic parts from suppliers with
international sales outlets,” the 640 Shear’s design guar
antees serviceability “wherever [its customers] may be
Cite as: 564 U. S. ____ (2011) 3
GINSBURG, J., dissenting
based.” Ibid. The instruction manual advises “owner[s]
and operators of a 640 Shear [to] make themselves aware
of [applicable health and safety regulations],” including
“the American National Standards Institute Regulations
(USA) for the use of Scrap Metal Processing Equipment.”
Id., at 46a.
Nicastro operated the 640 Shear in the course of his
employment at Curcio Scrap Metal (CSM) in Saddle
Brook, New Jersey. Id., at 7a, 43a. “New Jersey has long
been a hotbed of scrap-metal businesses . . . .” See Drake,
The Scrap-Heap Rollup Hits New Jersey, Business News
New Jersey, June 1, 1998, p. 1. In 2008, New Jersey
recycling facilities processed 2,013,730 tons of scrap iron,
steel, aluminum, and other metals—more than any other
State—outpacing Kentucky, its nearest competitor, by
nearly 30 percent. Von Haaren, Themelis, & Goldstein,
The State of Garbage in America, BioCycle, Oct. 2010,
p. 19.
CSM’s owner, Frank Curcio, “first heard of [McIntyre
UK’s] machine while attending an Institute of Scrap Metal
Industries [(ISRI)] convention in Las Vegas in 1994 or
1995, where [McIntyre UK] was an exhibitor.” App. 78a.
ISRI “presents the world’s largest scrap recycling industry
trade show each year.” Id., at 47a. The event attracts
“owners [and] managers of scrap processing companies”
and others “interested in seeing—and purchasing—new
equipment.” Id., at 48a–49a. According to ISRI, more
than 3,000 potential buyers of scrap processing and recy
cling equipment attend its annual conventions, “primarily
because th[e] exposition provides them with the most
comprehensive industry-related shopping experience
concentrated in a single, convenient location.” Id., at 47a.
Exhibitors who are ISRI members pay $3,000 for 10’ x 10’
booth space. Id., at 48a–49a.1
——————
1 New Jersey is home to nearly 100 ISRI members. See Institute of
4 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
GINSBURG, J., dissenting
McIntyre UK representatives attended every ISRI
convention from 1990 through 2005. Id., at 114a–115a.
These annual expositions were held in diverse venues
across the United States; in addition to Las Vegas, con
ventions were held 1990–2005 in New Orleans, Orlando,
San Antonio, and San Francisco. Ibid. McIntyre UK’s
president, Michael Pownall, regularly attended ISRI con
ventions. Ibid. He attended ISRI’s Las Vegas conven
tion the year CSM’s owner first learned of, and saw, the
640 Shear. Id., at 78a–79a, 115a. McIntyre UK exhibited
its products at ISRI trade shows, the company acknowl
edged, hoping to reach “anyone interested in the machine
from anywhere in the United States.” Id., at 161a.
Although McIntyre UK’s U. S. sales figures are not in
the record, it appears that for several years in the 1990’s,
earnings from sales of McIntyre UK products in the
United States “ha[d] been good” in comparison to “the rest
of the world.” Id., at 136a (Letter from Sally Johnson,
McIntyre UK’s Managing Director, to Gary and Mary
Gaither, officers of McIntyre UK’s exclusive distributor in
the United States (Jan. 13, 1999)). In response to inter
rogatories, McIntyre UK stated that its commissioning
engineer had installed the company’s equipment in several
States—Illinois, Iowa, Kentucky, Virginia, and Washing
ton. Id., at 119a.
From at least 1995 until 2001, McIntyre UK retained an
Ohio-based company, McIntyre Machinery America, Ltd.
(McIntyre America), “as its exclusive distributor for the en
tire United States.” Nicastro v. McIntyre Machinery
America, Ltd., 399 N. J. Super. 539, 558, 945 A.2d 92, 104
(App. 2008).2 Though similarly named, the two companies
——————
Scrap Recycling Industries, Inc., Member Directory, http://www.isri.org/
imis15_prod/core/directory.aspx (as visited June 24, 2011, and available
in Clerk of Court’s case file).
2 McIntyre America filed for bankruptcy in 2001, is no longer operat
ing, and has not participated in this lawsuit. Brief for Petitioner 3.
Cite as: 564 U. S. ____ (2011) 5
GINSBURG, J., dissenting
were separate and independent entities with “no common
ality of ownership or management.” Id., at 545, 945 A. 2d,
at 95. In invoices and other written communications,
McIntyre America described itself as McIntyre UK’s na
tional distributor, “America’s Link” to “Quality Metal
Processing Equipment” from England. App. 43a, 78a.
In a November 23, 1999 letter to McIntyre America,
McIntyre UK’s president spoke plainly about the manufac
turer’s objective in authorizing the exclusive distributor
ship: “All we wish to do is sell our products in the [United]
States—and get paid!” Id., at 134a. Notably, McIntyre
America was concerned about U. S. litigation involving
McIntyre UK products, in which the distributor had been
named as a defendant. McIntyre UK counseled McIntyre
America to respond personally to the litigation, but reas
sured its distributor that “the product was built and de
signed by McIntyre Machinery in the UK and the buck
stops here—if there’s something wrong with the machine.”
Id., at 129a–130a. Answering jurisdictional interrogato
ries, McIntyre UK stated that it had been named as a
defendant in lawsuits in Illinois, Kentucky, Massachu
setts, and West Virginia. Id., at 98a, 108a. And in corre
spondence with McIntyre America, McIntyre UK noted
that the manufacturer had products liability insurance
coverage. Id., at 129a.
Over the years, McIntyre America distributed several
McIntyre UK products to U. S. customers, including, in
addition to the 640 Shear, McIntyre UK’s “Niagara” and
“Tardis” systems, wire strippers, and can machines. Id.,
at 123a–128a. In promoting McIntyre UK’s products at
conventions and demonstration sites and in trade journal
advertisements, McIntyre America looked to McIntyre UK
——————
After “the demise of . . . McIntyre America,” McIntyre UK authorized a
Texas-based company to serve as exclusive United States distributor of
McIntyre UK shears. App. 52a–53a.
6 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
GINSBURG, J., dissenting
for direction and guidance. Ibid. To achieve McIntyre
UK’s objective, i.e., “to sell [its] machines to customers
throughout the United States,” 399 N. J. Super., at 548,
945 A.2d, at 97, “the two companies [were acting] closely
in concert with each other,” ibid. McIntyre UK never
instructed its distributor to avoid certain States or regions
of the country; rather, as just noted, the manufacturer
engaged McIntyre America to attract customers “from
anywhere in the United States.” App. 161a.
In sum, McIntyre UK’s regular attendance and exhibi
tions at ISRI conventions was surely a purposeful step to
reach customers for its products “anywhere in the United
States.” At least as purposeful was McIntyre UK’s en
gagement of McIntyre America as the conduit for sales of
McIntyre UK’s machines to buyers “throughout the United
States.” Given McIntyre UK’s endeavors to reach and
profit from the United States market as a whole, Nicas
tro’s suit, I would hold, has been brought in a forum en
tirely appropriate for the adjudication of his claim. He
alleges that McIntyre UK’s shear machine was defectively
designed or manufactured and, as a result, caused injury
to him at his workplace. The machine arrived in Nicas
tro’s New Jersey workplace not randomly or fortuitously,
but as a result of the U. S. connections and distribution
system that McIntyre UK deliberately arranged.3 On
——————
3 McIntyre UK resisted Nicastro’s efforts to determine whether other
McIntyre machines had been sold to New Jersey customers. See id., at
100a–101a. McIntyre did allow that McIntyre America “may have
resold products it purchased from [McIntyre UK] to a buyer in New
Jersey,” id., at 117a, but said it kept no record of the ultimate destina
tion of machines it shipped to its distributor, ibid. A private investiga
tor engaged by Nicastro found at least one McIntyre UK machine, of
unspecified type, in use in New Jersey. Id., at 140a–144a. But McIn
tyre UK objected that the investigator’s report was “unsworn and based
upon hearsay.” Reply Brief 10. Moreover, McIntyre UK maintained, no
evidence showed that the machine the investigator found in New Jersey
had been “sold into [that State].” Ibid.
Cite as: 564 U. S. ____ (2011) 7
GINSBURG, J., dissenting
what sensible view of the allocation of adjudicatory au
thority could the place of Nicastro’s injury within the
United States be deemed off limits for his products liabil
ity claim against a foreign manufacturer who targeted the
United States (including all the States that constitute the
Nation) as the territory it sought to develop?
II
A few points on which there should be no genuine de
bate bear statement at the outset. First, all agree, Mc-
Intyre UK surely is not subject to general (all-purpose)
jurisdiction in New Jersey courts, for that foreign-country
corporation is hardly “at home” in New Jersey. See Good
year Dunlop Tires Operations, S. A. v. Brown, post, at 2–3,
9–13. The question, rather, is one of specific jurisdiction,
which turns on an “affiliatio[n] between the forum and the
underlying controversy.” Goodyear Dunlop, post, at 2
(quoting von Mehren & Trautman, Jurisdiction to Adjudi
cate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1136
(1966) (hereinafter von Mehren & Trautman); internal
quotation marks omitted); see also Goodyear Dunlop, post,
at 7–8.
Second, no issue of the fair and reasonable allocation of
adjudicatory authority among States of the United States
is present in this case. New Jersey’s exercise of personal
jurisdiction over a foreign manufacturer whose dangerous
product caused a workplace injury in New Jersey does not
tread on the domain, or diminish the sovereignty, of any
sister State. Indeed, among States of the United States,
the State in which the injury occurred would seem most
suitable for litigation of a products liability tort claim. See
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
297 (1980) (if a manufacturer or distributor endeavors to
develop a market for a product in several States, it is
reasonable “to subject it to suit in one of those States if its
allegedly defective [product] has there been the source of
8 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
GINSBURG, J., dissenting
injury”); 28 U.S. C. §1391(a)–(b) (in federal-court suits,
whether resting on diversity or federal-question jurisdic
tion, venue is proper in the judicial district “in which a
substantial part of the events or omissions giving rise to
the claim occurred”).
Third, the constitutional limits on a state court’s adjudi
catory authority derive from considerations of due process,
not state sovereignty. As the Court clarified in Insurance
Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456
U.S. 694 (1982):
“The restriction on state sovereign power described in
World-Wide Volkswagen Corp. . . . must be seen as ul
timately a function of the individual liberty interest
preserved by the Due Process Clause. That Clause is
the only source of the personal jurisdiction require
ment and the Clause itself makes no mention of fed
eralism concerns. Furthermore, if the federalism con
cept operated as an independent restriction on the
sovereign power of the court, it would not be possible
to waive the personal jurisdiction requirement: Indi
vidual actions cannot change the powers of sover
eignty, although the individual can subject himself to
powers from which he may otherwise be protected.”
Id., at 703, n. 10.
See also Shaffer v. Heitner, 433 U.S. 186, 204, and n. 20
(1977) (recognizing that “the mutually exclusive sover
eignty of the States [is not] the central concern of the
inquiry into personal jurisdiction”). But see ante, at 7
(plurality opinion) (asserting that “sovereign authority,”
not “fairness,” is the “central concept” in determining
personal jurisdiction).
Finally, in International Shoe itself, and decisions there
after, the Court has made plain that legal fictions, notably
“presence” and “implied consent,” should be discarded, for
they conceal the actual bases on which jurisdiction rests.
Cite as: 564 U. S. ____ (2011) 9
GINSBURG, J., dissenting
See 326 U.S., at 316, 318; Hutchinson v. Chase & Gilbert,
45 F.2d 139, 141 (CA2 1930) (L. Hand, J.) (“nothing is
gained by [resort to words that] concea[l] what we do”).
“[T]he relationship among the defendant, the forum, and
the litigation” determines whether due process permits the
exercise of personal jurisdiction over a defendant, Shaf-
fer, 433 U.S., at 204, and “fictions of implied consent”
or “corporate presence” do not advance the proper inquiry,
id., at 202. See also Burnham v. Superior Court of Cal.,
County of Marin, 495 U.S. 604, 618 (1990) (plurality
opinion) (International Shoe “cast . . . aside” fictions of
“consent” and “presence”).
Whatever the state of academic debate over the role of
consent in modern jurisdictional doctrines,4 the plurality’s
notion that consent is the animating concept draws no
support from controlling decisions of this Court. Quite the
contrary, the Court has explained, a forum can exercise
jurisdiction when its contacts with the controversy are
sufficient; invocation of a fictitious consent, the Court has
repeatedly said, is unnecessary and unhelpful. See, e.g.,
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)
(Due Process Clause permits “forum . . . to assert specific
jurisdiction over an out-of-state defendant who has not
consented to suit there”); McGee v. International Life Ins.
——————
4 Compare Brilmayer, Rights, Fairness, and Choice of Law, 98 Yale
L. J. 1277, 1304–1306 (1989) (hereinafter Brilmayer) (criticizing as
circular jurisdictional theories founded on “consent” or “[s]ubmission to
state authority”), Perdue, Personal Jurisdiction and the Beetle in
the Box, 32 Boston College L. Rev. 529, 536–544 (1991) (same), with
Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 Geo.
Wash. L. Rev. 849, 884–885 (1989) (endorsing a consent-based doctrine
of personal jurisdiction), Epstein, Consent, Not Power, as the Basis of
Jurisdiction, 2001 U. Chi. Legal Forum 1, 2, 30–32 (urging that “the
consent principle neatly explains the dynamics of many of our jurisdic
tional doctrines,” but recognizing that in tort cases, the victim ordinar
ily should be able to sue in the place where the harm occurred).
10 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
GINSBURG, J., dissenting
Co., 355 U.S. 220, 222 (1957) (“[T]his Court [has] aban
doned ‘consent,’ ‘doing business,’ and ‘presence’ as the
standard for measuring the extent of state judicial power
over [out-of-state] corporations.”).5
III
This case is illustrative of marketing arrangements for
sales in the United States common in today’s commercial
world.6 A foreign-country manufacturer engages a U. S.
company to promote and distribute the manufacturer’s
products, not in any particular State, but anywhere and
everywhere in the United States the distributor can at
tract purchasers. The product proves defective and in
jures a user in the State where the user lives or works.
Often, as here, the manufacturer will have liability insur
ance covering personal injuries caused by its products.
See Cupp, Redesigning Successor Liability, 1999 U. Ill.
L. Rev. 845, 870–871 (noting the ready availability of
products liability insurance for manufacturers and citing a
study showing, “between 1986 and 1996, [such] insurance
——————
5 But see ante, at 4–8 (plurality opinion) (maintaining that a forum
may be fair and reasonable, based on its links to the episode in suit, yet
off limits because the defendant has not submitted to the State’s
authority). The plurality’s notion that jurisdiction over foreign corpora
tions depends upon the defendant’s “submission,” ante, at 6, seems
scarcely different from the long-discredited fiction of implied consent.
It bears emphasis that a majority of this Court’s members do not share
the plurality’s view.
6 Last year, the United States imported nearly 2 trillion dollars in
foreign goods. Census Bureau, U. S. International Trade in Goods and
Services (Apr. 2011), p. 1, http://www.census.gov/foreign-trade/Press-
Release/current_press_release/ft900.pdf (as visited June 24, 2011, and
in Clerk of Court’s case file). Capital goods, such as the metal shear
machine that injured Nicastro, accounted for almost 450 billion dollars
in imports for 2010. Id., at 6. New Jersey is the fourth-largest destina
tion for manufactured commodities imported into the United States,
after California, Texas, and New York. Id., FT–900 Supplement, p. 3.
Cite as: 564 U. S. ____ (2011) 11
GINSBURG, J., dissenting
cost manufacturers, on average, only sixteen cents for
each $100 of product sales”); App. 129–130.
When industrial accidents happen, a long-arm statute in
the State where the injury occurs generally permits asser
tion of jurisdiction, upon giving proper notice, over the
foreign manufacturer. For example, the State’s statute
might provide, as does New York’s long-arm statute, for
the “exercise [of] personal jurisdiction over any non
domiciliary . . . who . . .
“commits a tortious act without the state causing in
jury to person or property within the state, . . . if he
. . . expects or should reasonably expect the act to
have consequences in the state and derives substan
tial revenue from interstate or international com
merce.” N. Y. Civ. Prac. Law Ann. §302(a)(3)(ii) (West
2008).7
Or, the State might simply provide, as New Jersey does,
for the exercise of jurisdiction “consistent with due process
of law.” N. J. Ct. Rule 4:4–4(b)(1) (2011).8
The modern approach to jurisdiction over corporations
and other legal entities, ushered in by International Shoe,
gave prime place to reason and fairness. Is it not fair and
reasonable, given the mode of trading of which this case is
——————
7 This provision was modeled in part on the Uniform Interstate and
International Procedure Act. See N. Y. Legislative Doc. 90, Judicial
Conference of the State of New York, 11th Annual Report 132–147
(1966). Connecticut’s long-arm statute also uses the “derives substan
tial revenue from interstate or international commerce” formulation.
See Conn. Gen. Stat. §52–59b(a) (2011).
8 State long-arm provisions allow the exercise of jurisdiction subject
only to a due process limitation in Alabama, Arkansas, California,
Colorado, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisi
ana, Maryland, Michigan, Minnesota, Missouri, Nevada, North Dakota,
Oregon, Pennsylvania, Puerto Rico, South Carolina, South Dakota,
Tennessee, Texas, Utah, Washington, and West Virginia. 4 C. Wright
& A. Miller, Federal Practice & Procedure §1068, pp. 577–578, n. 12 (3d
ed. 2002).
12 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
GINSBURG, J., dissenting
an example, to require the international seller to defend at
the place its products cause injury?9 Do not litigational
convenience10 and choice-of-law considerations 11 point in
that direction? On what measure of reason and fairness
can it be considered undue to require McIntyre UK to
defend in New Jersey as an incident of its efforts to de
velop a market for its industrial machines anywhere and
everywhere in the United States? 12 Is not the burden on
McIntyre UK to defend in New Jersey fair, i.e., a reason
able cost of transacting business internationally, in com
parison to the burden on Nicastro to go to Nottingham,
England to gain recompense for an injury he sustained
using McIntyre’s product at his workplace in Saddle
Brook, New Jersey?
——————
9 The plurality objects to a jurisdictional approach “divorced from
traditional practice.” Ante, at 5. But “the fundamental transformation
of our national economy,” this Court has recognized, warrants enlarge
ment of “the permissible scope of state jurisdiction over foreign corpora
tions and other nonresidents.” McGee v. International Life Ins. Co., 355
U.S. 220, 222–223 (1957).
10 See von Mehren & Trautman 1167 (“[C]onsiderations of litigational
convenience, particularly with respect to the taking of evidence, tend
in accident cases to point insistently to the community in which the
accident occurred.”).
11 Historically, “tort cases were governed by the place where the last
act giving rise to a claim occurred—that is, the place of injury.” Bril
mayer 1291–1292. Even as many jurisdictions have modified the
traditional rule of lex loci delicti, the location of injury continues to hold
sway in choice-of-law analysis in tort cases. See generally Whytock,
Myth of Mess? International Choice of Law in Action, 84 N. Y. U.
L. Rev. 719 (2009).
12 The plurality suggests that the Due Process Clause might permit a
federal district court in New Jersey, sitting in diversity and applying
New Jersey law, to adjudicate McIntyre UK’s liability to Nicastro. See
ante, at 10–11. In other words, McIntyre UK might be compelled to
bear the burden of traveling to New Jersey and defending itself there
under New Jersey’s products liability law, but would be entitled to
federal adjudication of Nicastro’s state-law claim. I see no basis in the
Due Process Clause for such a curious limitation.
Cite as: 564 U. S. ____ (2011) 13
GINSBURG, J., dissenting
McIntyre UK dealt with the United States as a single
market. Like most foreign manufacturers, it was con
cerned not with the prospect of suit in State X as opposed
to State Y, but rather with its subjection to suit anywhere
in the United States. See Hay, Judicial Jurisdiction Over
Foreign-Country Corporate Defendants—Comments on
Recent Case Law, 63 Ore. L. Rev. 431, 433 (1984) (herein
after Hay). As a McIntyre UK officer wrote in an e-mail to
McIntyre America: “American law—who needs it?!” App.
129a–130a (e-mail dated April 26, 1999 from Sally John
son to Mary Gaither). If McIntyre UK is answerable in
the United States at all, is it not “perfectly appropriate to
permit the exercise of that jurisdiction . . . at the place of
injury”? See Hay 435; Degnan & Kane, The Exercise of
Jurisdiction Over and Enforcement of Judgments Against
Alien Defendants, 39 Hastings L. J. 799, 813–815 (1988)
(noting that “[i]n the international order,” the State that
counts is the United States, not its component States,13
and that the fair place of suit within the United States is
essentially a question of venue).
In sum, McIntyre UK, by engaging McIntyre America to
promote and sell its machines in the United States, “pur
posefully availed itself ” of the United States market na
tionwide, not a market in a single State or a discrete
collection of States. McIntyre UK thereby availed itself of
——————
13 “For purposes of international law and foreign relations, the sepa
rate identities of individual states of the Union are generally irrele
vant.” Born, Reflections on Judicial Jurisdiction in International
Cases, 17 Ga. J. Int’l & Comp. L. 1, 36 (1987). See also Hines v.
Davidowitz, 312 U.S. 52, 63 (1941) (“For local interests the several
States of the Union exist, but for national purposes, embracing our
relations with foreign nations, we are but one people, one nation, one
power.”) (internal quotation marks omitted); Restatement (Third) of
Foreign Relations Law of the United States §421, Comment f, p. 307
(1986) (“International law . . . does not concern itself with the allocation
of jurisdiction among domestic courts within a [nation,] for example,
between national and local courts in a federal system.”).
14 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
GINSBURG, J., dissenting
the market of all States in which its products were sold
by its exclusive distributor. “Th[e] ‘purposeful availment’
requirement,” this Court has explained, simply “ensures
that a defendant will not be haled into a jurisdiction solely
as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ con
tacts.” Burger King, 471 U.S., at 475. Adjudicatory au
thority is appropriately exercised where “actions by the
defendant himself” give rise to the affiliation with the
forum. Ibid. How could McIntyre UK not have intended,
by its actions targeting a national market, to sell products
in the fourth largest destination for imports among all
States of the United States and the largest scrap metal
market? See supra, at 3, 10, n. 6. But see ante, at 11
(plurality opinion) (manufacturer’s purposeful efforts to
sell its products nationwide are “not . . . relevant” to the
personal jurisdiction inquiry).
Courts, both state and federal, confronting facts similar
to those here, have rightly rejected the conclusion that a
manufacturer selling its products across the USA may
evade jurisdiction in any and all States, including the
State where its defective product is distributed and causes
injury. They have held, instead, that it would undermine
principles of fundamental fairness to insulate the foreign
manufacturer from accountability in court at the place
within the United States where the manufacturer’s prod
ucts caused injury. See, e.g., Tobin v. Astra Pharmaceuti
cal Prods., Inc., 993 F.2d 528, 544 (CA6 1993); A. Uberti
& C. v. Leonardo, 181 Ariz. 565, 573, 892 P.2d 1354, 1362
(1995).14
IV
A
While this Court has not considered in any prior case
the now-prevalent pattern presented here—a foreign
——————
14 For a more complete set of examples, see Appendix, infra, at 20–24.
Cite as: 564 U. S. ____ (2011) 15
GINSBURG, J., dissenting
country manufacturer enlisting a U. S. distributor to de
velop a market in the United States for the manufac
turer’s products—none of the Court’s decisions tug against
the judgment made by the New Jersey Supreme Court.
McIntyre contends otherwise, citing World-Wide Volks
wagen, and Asahi Metal Industry Co. v. Superior Court of
Cal., Solano Cty., 480 U.S. 102 (1987).
World-Wide Volkswagen concerned a New York car
dealership that sold solely in the New York market, and
a New York distributor who supplied retailers in three
States only: New York, Connecticut, and New Jersey. 444
U.S., at 289. New York residents had purchased an Audi
from the New York dealer and were driving the new vehi
cle through Oklahoma en route to Arizona. On the road in
Oklahoma, another car struck the Audi in the rear, caus
ing a fire which severely burned the Audi’s occupants. Id.,
at 288. Rejecting the Oklahoma courts’ assertion of juris
diction over the New York dealer and distributor, this
Court observed that the defendants had done nothing to
serve the market for cars in Oklahoma. Id., at 295–298.
Jurisdiction, the Court held, could not be based on the
customer’s unilateral act of driving the vehicle to Okla
homa. Id., at 298; see Asahi, 480 U.S., at 109 (opinion of
O’Connor, J.) (World-Wide Volkswagen “rejected the as-
sertion that a consumer’s unilateral act of bringing the
defendant’s product into the forum State was a sufficient
constitutional basis for personal jurisdiction over the
defendant”).
Notably, the foreign manufacturer of the Audi in World-
Wide Volkswagen did not object to the jurisdiction of the
Oklahoma courts and the U. S. importer abandoned its
initially stated objection. 444 U.S., at 288, and n. 3. And
most relevant here, the Court’s opinion indicates that an
objection to jurisdiction by the manufacturer or national
distributor would have been unavailing. To reiterate, the
Court said in World-Wide Volkswagen that, when a manu
16 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
GINSBURG, J., dissenting
facturer or distributor aims to sell its product to customers
in several States, it is reasonable “to subject it to suit in
[any] one of those States if its allegedly defective [product]
has there been the source of injury.” Id., at 297.
Asahi arose out of a motorcycle accident in California.
Plaintiff, a California resident injured in the accident,
sued the Taiwanese manufacturer of the motorcycle’s tire
tubes, claiming that defects in its product caused the
accident. The tube manufacturer cross-claimed against
Asahi, the Japanese maker of the valve assembly, and
Asahi contested the California courts’ jurisdiction. By the
time the case reached this Court, the injured plaintiff
had settled his case and only the indemnity claim by the
Taiwanese company against the Japanese valve-assembly
manufacturer remained.
The decision was not a close call. The Court had before
it a foreign plaintiff, the Taiwanese manufacturer, and
a foreign defendant, the Japanese valve-assembly maker,
and the indemnification dispute concerned a transaction
between those parties that occurred abroad. All agreed on
the bottom line: The Japanese valve-assembly manufac
turer was not reasonably brought into the California
courts to litigate a dispute with another foreign party over
a transaction that took place outside the United States.
Given the confines of the controversy, the dueling opin
ions of Justice Brennan and Justice O’Connor were hardly
necessary. How the Court would have “estimate[d] . . . the
inconveniences,” see International Shoe, 326 U.S., at 317
(internal quotation marks omitted), had the injured Cali
fornian originally sued Asahi is a debatable question.
Would this Court have given the same weight to the bur
dens on the foreign defendant had those been counterbal
anced by the burdens litigating in Japan imposed on the
local California plaintiff? Cf. Calder v. Jones, 465 U.S.
783, 788 (1984) (a plaintiff’s contacts with the forum “may
be so manifold as to permit jurisdiction when it would not
Cite as: 564 U. S. ____ (2011) 17
GINSBURG, J., dissenting
exist in their absence”).
In any event, Asahi, unlike McIntyre UK, did not itself
seek out customers in the United States, it engaged no
distributor to promote its wares here, it appeared at no
tradeshows in the United States, and, of course, it had no
Web site advertising its products to the world. Moreover,
Asahi was a component-part manufacturer with “little
control over the final destination of its products once they
were delivered into the stream of commerce.” A. Uberti,
181 Ariz., at 572, 892 P. 2d, at 1361. It was important to
the Court in Asahi that “those who use Asahi components
in their final products, and sell those products in Califor
nia, [would be] subject to the application of California tort
law.” 480 U.S., at 115 (majority opinion). To hold that
Asahi controls this case would, to put it bluntly, be dead
wrong.15
B
The Court’s judgment also puts United States plaintiffs
at a disadvantage in comparison to similarly situated
complainants elsewhere in the world. Of particular note,
within the European Union, in which the United Kingdom
is a participant, the jurisdiction New Jersey would have
exercised is not at all exceptional. The European Regula
tion on Jurisdiction and the Recognition and Enforcement
of Judgments provides for the exercise of specific jurisdic
tion “in matters relating to tort . . . in the courts for the
place where the harmful event occurred.” Council Reg.
——————
15 The plurality notes the low volume of sales in New Jersey, ante, at
3, 11. A $24,900 shearing machine, however, is unlikely to sell in bulk
worldwide, much less in any given State. By dollar value, the price of a
single machine represents a significant sale. Had a manufacturer sold
in New Jersey $24,900 worth of flannel shirts, see Nelson v. Park
Industries, Inc., 717 F.2d 1120 (CA7 1983), cigarette lighters, see
Oswalt v. Scripto, Inc., 616 F.2d 191 (CA5 1980), or wire-rope splices,
see Hedrick v. Daiko Shoji Co., 715 F.2d 1355 (CA9 1983), the Court
would presumably find the defendant amenable to suit in that State.
18 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
GINSBURG, J., dissenting
44/2001, Art. 5, 2001 O. J. (L. 12) 4.16 The European
Court of Justice has interpreted this prescription to au
thorize jurisdiction either where the harmful act occurred
or at the place of injury. See Handelskwekerij G. J. Bier
B. V. v. Mines de Potasse d’Alsace S. A., 1976 E. C. R.
1735, 1748–1749.17
V
The commentators who gave names to what we now
call “general jurisdiction” and “specific jurisdiction” antici
pated that when the latter achieves its full growth, con
siderations of litigational convenience and the respective
situations of the parties would determine when it is ap
propriate to subject a defendant to trial in the plaintiff’s
community. See von Mehren & Trautman 1166–1179.
Litigational considerations include “the convenience of
witnesses and the ease of ascertaining the governing law.”
Id., at 1168–1169. As to the parties, courts would differ
ently appraise two situations: (1) cases involving a sub
stantially local plaintiff, like Nicastro, injured by the
activity of a defendant engaged in interstate or interna
tional trade; and (2) cases in which the defendant is a
natural or legal person whose economic activities and legal
involvements are largely home-based, i.e., entities without
designs to gain substantial revenue from sales in distant
markets. See id., at 1167–1169.18 As the attached appen
——————
16 The Regulation replaced the “European” or “Brussels” Convention
on Jurisdiction and Enforcement of Judgments in Civil and Commercial
Matters, entered into in 1968 by the original Common Market member
states. In the interim, the Lugano Convention “extended the Brussels
Convention scheme to [European Free Trade Association] countries.”
Clermont & Palmer, Exorbitant Jurisdiction, 58 Me. L. Rev. 474, 491,
n. 82 (2006).
17 For a concise comparison of the European regime and this Court’s
decisions, see Weintraub, A Map Out of the Personal Jurisdiction
Labyrinth, 28 U. C. Davis L. Rev. 531, 550–554 (1995).
18 Assigning weight to the local or international stage on which the
Cite as: 564 U. S. ____ (2011) 19
GINSBURG, J., dissenting
dix of illustrative cases indicates, courts presented with
von Mehren and Trautman’s first scenario—a local plain
tiff injured by the activity of a manufacturer seeking to
exploit a multistate or global market—have repeatedly
confirmed that jurisdiction is appropriately exercised by
courts of the place where the product was sold and caused
injury.
* * *
For the reasons stated, I would hold McIntyre UK an
swerable in New Jersey for the harm Nicastro suffered at
his workplace in that State using McIntyre UK’s shearing
machine. While I dissent from the Court’s judgment, I
take heart that the plurality opinion does not speak for
the Court, for that opinion would take a giant step away
from the “notions of fair play and substantial justice”
underlying International Shoe. 326 U.S., at 316 (internal
quotation marks omitted).
——————
parties operate would, to a considerable extent, answer the concerns
expressed by JUSTICE BREYER. See ante, at 5–7 (opinion concurring in
judgment).
20 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
Appendix to opiniondissenting , J.
GINSBURG, J., of GINSBURG
APPENDIX
Illustrative cases upholding exercise of personal juris
diction over an alien or out-of-state corporation that,
through a distributor, targeted a national market, includ
ing any and all States:19
Clune v. Alimak AB, 233 F.3d 538, 544 (CA8 2000)
(wrongful-death action against the Swedish manufacturer
of a construction hoist that allegedly caused a workplace
death in Missouri; holding the manufacturer amenable to
suit in Missouri, the Eighth Circuit stated: “Although we
can imagine a case where a foreign manufacturer selects
discrete regional distributors for the purpose of penetrat
ing the markets in some states to the exclusion of others,
that situation is not before us.” In this case, the for-
eign manufacturer had “successfully employ[ed] one or two
distributors to cover the [entire] United States[,] in
tend[ing] to reap the benefit of sales in every state where
those distributors market.” Were the court to conclude
that the manufacturer “did not intend its products to flow
into Missouri,” the court “would be bound to the conclusion
that the [manufacturer] did not intend its products to flow
into any of the United States.”).
Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 242–244
(CA2 1999) (products liability action against the Japanese
manufacturer of an allegedly defective stamping press
that caused a workplace injury in New York; holding the
manufacturer amenable to suit in New York, the Second
Circuit stated that an “exclusive sales rights agreement”
between the Japanese manufacturer and a Pennsylvania
distributor “contemplates that [the distributor] will sell
——————
19 The listed cases are by no means exhaustive of decisions fitting this
pattern. For additional citations, see Brief for Public Citizen, Inc., as
Amicus Curiae 16, n. 5.
Cite as: 564 U. S. ____ (2011) 21
Appendix to opiniondissenting , J.
GINSBURG, J., of GINSBURG
[the manufacturer’s] machines in North America and
throughout the world, serv[ing] as evidence of [the manu
facturer’s] attempt to serve the New York market, albeit
indirectly”).
Barone v. Rich Bros. Interstate Display Fireworks Co.,
25 F.3d 610, 613–615 (CA8 1994) (products liability suit
against a Japanese fireworks manufacturer for injuries
sustained in Nebraska; Eighth Circuit held the manufac
turer amenable to suit in Nebraska, although the manu
facturer had no distributor or sales agents in that State,
did not advertise in Nebraska, and claimed it was un
aware that its distributors sold products there; Court of
Appeals stated: “In this age of NAFTA and GATT, one can
expect further globalization of commerce, and it is only
reasonable for companies that distribute allegedly defec
tive products through regional distributors in this country
to anticipate being haled into court by plaintiffs in their
home states.”).
Tobin v. Astra Pharmaceutical Prods., Inc., 993 F.2d
528, 544 (CA6 1993) (products liability action against the
Dutch pharmaceutical manufacturer of a drug alleged to
have caused Kentucky resident’s heart disease; holding
the manufacturer amenable to suit in Kentucky, the Sixth
Circuit reasoned: “[Defendant] argues that it has done
nothing in particular to purposefully avail itself of the
Kentucky market as distinguished from any other state in
the union. If we were to accept defendant’s argument on
this point, a foreign manufacturer could insulate itself
from liability in each of the fifty states simply by using an
independent national distributor to market its products.”).
Hedrick v. Daiko Shoji Co., 715 F.2d 1355, 1358 (CA9
1983) (products liability suit arising from injuries plaintiff
sustained in Oregon caused by an allegedly defective wire
22 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
Appendix to opiniondissenting , J.
GINSBURG, J., of GINSBURG
rope splice manufactured in Japan; holding the Japanese
manufacturer amenable to suit in Oregon, the Ninth Cir
cuit noted that the manufacturer “performed a forum
related act when it produced a splice that it knew was
destined for ocean-going vessels serving United States
ports, including those of Oregon”).
Oswalt v. Scripto, Inc., 616 F.2d 191, 200 (CA5 1980)
(products liability action stemming from an injury plaintiff
sustained in Texas when using a cigarette lighter made
in Japan; holding the manufacturer amenable to suit in
Texas, the Fifth Circuit noted that the manufacturer “had
every reason to believe its product would be sold to a
nation-wide market, that is, in any or all states”).
Stokes v. L. Geismar, S.A., 815 F. Supp. 904, 907 (ED
Va. 1993), aff ’d on other grounds, 16 F.3d 411 (CA4 1994)
(action by worker injured in Virginia while using a rail
cutting saw manufactured by a French corporation; hold
ing the manufacturer amenable to suit in Virginia, the
District Court noted that there was “no evidence of any
attempt . . . to limit th[e] U. S. marketing strategy to avoid
Virginia or any other particular state”).
Felty v. Conaway Processing Equipment Co., 738 F.
Supp. 917, 919–920 (ED Pa. 1990) (personal injury suit
against the Dutch manufacturer of a poultry processing
machine that allegedly caused injury in Pennsylvania;
holding the manufacturer amenable to suit in Pennsyl
vania, the District Court observed that the manufacturer
“clearly and purposefully used [distributors] to deal in the
international market for poultry processing equipment”
and was “well aware that its equipment was being sold for
use in the United States, including Pennsylvania”).
Scanlan v. Norma Projektil Fabrik, 345 F. Supp. 292,
Cite as: 564 U. S. ____ (2011) 23
Appendix to opiniondissenting , J.
GINSBURG, J., of GINSBURG
293 (Mont. 1972) (products liability action occasioned by
defect in ammunition used while hunting in Montana;
plaintiff sued the Swedish ammunition manufacturer;
holding the manufacturer amenable to suit in Montana,
the District Court noted that the distributor intended “a
nationwide product distribution”).
Ex parte DBI, Inc., 23 So. 3d 635, 654–655 (Ala. 2009)
(wrongful-death action arising out of an automobile acci
dent in Alabama; plaintiff sued the Korean manufacturer
of an allegedly defective seatbelt; Supreme Court of Ala
bama held the manufacturer amenable to suit in Alabama,
although the manufacturer had supplied its seatbelts to
the car maker in Korea and “maintain[ed] there [was] no
evidence . . . showing that it knew its products were being
marketed in Alabama”).
A. Uberti & C. v. Leonardo, 181 Ariz. 565, 573, 892 P.2d
1354, 1362 (1995) (wrongful-death action against the
Italian manufacturer of an allegedly defective handgun
that caused child’s death in Arizona; Arizona Supreme
Court stated: “[F]or all this record shows, Defendant never
heard of Arizona. This raises the following question:
Having shown that the gun was knowingly designed for
and exported to exploit the market of the United States or
western United States, must Plaintiffs additionally show
that Defendant had the specific intent to market the gun
in Arizona, or is it enough to show that Defendant in
tended to market it in any state, group of states, or all
states? We conclude that only the latter is necessary.”).
Hill by Hill v. Showa Denko, K. K., 188 W. Va. 654, 661,
425 S.E.2d 609, 616 (1992) (products liability suit against
the Japanese manufacturer of a sleep aid alleged to have
caused West Virginia plaintiff’s blood disorder; holding the
manufacturer amenable to suit in West Virginia, that
24 J. MCINTYRE MACHINERY, LTD. v. NICASTRO
Appendix to opiniondissenting , J.
GINSBURG, J., of GINSBURG
State’s Supreme Court noted that the manufacturer had
profited from sales in the United States and considered it
unfair to “requir[e] the plaintiff to travel to Japan to liti
gate th[e] case”).