Concept

Contesting Tag Service

Tag jurisdiction

Contesting Tag Service

A defendant served by tag can still dispute the court's power, and the way the defendant chooses to dispute it decides what remains open afterward. Burnham v. Superior Court holds that a state court may exercise jurisdiction over a nonresident who is personally served while physically present in the forum, even when the visit is brief and the claim is unrelated to it.¹ That holding closes the minimum-contacts argument, but it leaves the defendant two paths: appear and contest the service, or default and attack the judgment later.

Dennis Burnham took the first path. He appeared specially and moved to quash service. The Superior Court denied the motion, and the California Court of Appeal denied mandamus relief, rejecting his contention that the Due Process Clause barred California courts from asserting jurisdiction over him because he lacked minimum contacts with the State.² The Supreme Court then took the case and upheld the jurisdiction.³

The special appearance matters in tag cases because of a trap built into the rule. Presence in the forum supplies the basis for jurisdiction, so a defendant who travels there to object would be standing where the plaintiff could hand over the papers at the courthouse door, and the objection would create the jurisdiction it disputed. To avoid this catch-22, courts have long allowed a special appearance, an appearance made for the exclusive purpose of challenging personal jurisdiction. As long as the defendant appears specially, the plaintiff cannot serve the defendant at the courthouse and establish jurisdiction that way.⁴ Nor does the defendant consent by objecting: all state trial courts of general jurisdiction permit a special appearance, as do the Federal Rules of Civil Procedure.⁵ The name of the device varies. California requires a motion to quash, which is the form Burnham used, and in federal court the challenge is a pre-answer motion under Fed. R. Civ. P. 12(b)(2).⁶

The protection lasts only as long as the defendant uses it promptly. Whatever the local procedure, defendants must raise the personal jurisdiction issue early in the case or risk waiving the defense.⁷ Personal jurisdiction is easily waived, unlike subject matter jurisdiction, which a party can typically raise long after the case has begun, even on direct appeal.⁸ A defendant loses the objection by failing to raise it in a timely manner, by deciding not to raise it, or by accepting a contract with a forum selection clause.⁹

What follows a special appearance depends on the court's ruling. If the challenge succeeds, the case is dismissed. If it fails, the defendant's options narrow. In federal court, a defendant who unsuccessfully challenges jurisdiction ordinarily cannot appeal at once; the defendant must litigate the merits and leave appeal of the jurisdictional ruling until after final judgment, or else default.¹⁰ Burnham's own route in California ran through a petition for mandamus.¹¹ Defaulting after a loss is hardly an option, because the first court has actually decided the question of its jurisdiction, the decision is res judicata (a matter already decided, which binds the parties in later proceedings), and no other defense could be raised in a collateral attack on the judgment.¹²

That binding effect reaches factual and legal disputes alike. A factual dispute asks, for example, where the papers were delivered. To see its effect, change one fact of Burnham's case. Suppose a defendant in his position claimed that he was served in Nevada, not California, and the California court found as a matter of fact that service was made in California and that the defendant was therefore subject to its jurisdiction. That finding would have issue-preclusive effect in any later proceeding, including, through full faith and credit, an enforcement action in another state.¹³ A legal dispute is the one Burnham actually litigated: whether due process permits jurisdiction based on in-state service without minimum contacts. Had he defaulted after losing in California, he could not have relitigated that point in an enforcement action, because a defendant who makes a special appearance and loses on personal jurisdiction in the first case may not collaterally attack the first court's jurisdiction.¹⁴

The preclusive rule follows from the exception it limits. Full faith and credit to judgments is a firm command, with one important exception: it does not require recognition of a judgment rendered by a court that lacked jurisdiction over the defendant.¹⁵ A defendant who made no appearance may raise that lack of jurisdiction at enforcement, because the question was never actually litigated and determined in the first case.¹⁶ A defendant who made a special appearance has already had the question litigated and determined, and has no second chance.

The defendant who decides the summons is not worth answering has taken the second path. When the plaintiff seeks to enforce the default judgment, the defendant may appear and attack it for lack of personal jurisdiction.¹⁷ The attack is costly. A defaulting defendant may challenge the judgment collaterally only for lack of jurisdiction, and by failing to appear gives up any chance to contest the merits, which is why most defendants prefer to raise jurisdiction in the first case.¹⁸ In a tag case the odds are worse, because Burnham has closed the legal argument that in-state service is invalid without minimum contacts.¹⁹ What remains is a factual attack on the service itself, such as whether it occurred in the forum or whether the defendant was there voluntarily.

Hypothetical Illustration

A Michigan homeowner is handed a summons while on a voluntary ski trip in Colorado, in a contract suit that has nothing to do with the trip. The homeowner never responds, the plaintiff takes a default judgment, and the plaintiff sues to enforce it in Michigan. The homeowner argues that Colorado lacked jurisdiction because the homeowner had no minimum contacts with Colorado. The homeowner may raise the point, because the issue was never litigated, but the point fails: personal service during a voluntary visit supports jurisdiction without contacts. The judgment is enforced, and the homeowner has lost both the merits and the jurisdictional argument. Had the same summons been delivered at the homeowner's Michigan door, the tag rule would not apply, and Colorado's jurisdiction would need some other basis.

Because the effect of a jurisdictional challenge depends on whether the defendant appeared and whether the court actually decided the question, a problem about contested tag service is best worked in a fixed order.

Exam Analysis Steps

Work a contested tag service problem in this order:

Ask whether the defendant appeared in the first action solely to contest jurisdiction, as Burnham did by moving to quash, or made no appearance at all.
If the defendant appeared specially and lost, treat the court's ruling on jurisdiction as binding in any later enforcement action, whether it decided a factual question such as where service occurred or a legal question such as whether tag is valid.
If the defendant never appeared, allow the defendant to raise lack of personal jurisdiction when the plaintiff seeks enforcement, because the issue was never actually litigated.
Test that later challenge against the tag rule: ask whether the defendant is a natural person who was served inside the forum while voluntarily present, and whether the plaintiff procured the presence by fraud or force.
Conclude that the challenge fails if the service satisfies the rule, and note that the defaulting defendant has also given up every defense on the merits.

Contesting Tag Service

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