So far in our discussions on personal jurisdiction we have talked about the two most popular ones, specific and general. Now, we turn to the other two means of establishing personal jurisdiction, Transient Presence and Waiver.

Transient Personal Jurisdiction

Burnham v. Superior Court

495 U.S. 604 (1990).

Mr. Burnham is the defendant. He moved to quash the jurisdiction over him. Failed, and appealed.


“Whether the Due Process Clause of the Fourteenth Amendment denies California courts jurisdiction over a nonresident, who was personally served with process while temporarily in that State, in a suit unrelated to his activities in the state.”


“Traditional notions of fair play and substantial justice.”


Service of one on another in a state where they are physically present is consistent with fair play and substantial justice. Judgment affirmed.


Mr. Burnham and Mrs. Burnham became separated and she moved to California while he remained in New Jersey. There was an understanding that she would file for divorce in a certain way. However, he filed in a different way. One day, he visited California for a business trip and to see his children. He was served with process according to the way they had previously agreed upon. He made a special appearance to quash the summons due to lack of personal jurisdiction.

His argument is that this is not consistent with Shaffer where it says that “all” forms of jurisdiction need to be established by a continuous contact with the forum state.


The court here is unanimous in deciding that he is subject to personal jurisdiction but is split on the reasoning.

Writing for the majority, Scalia says that Shaffer applies only to in rem, quasi in rem, and in personum personal jurisdiction but did not apply to transient personal jurisdiction. Because of traditional notions of fair play, all the states have recognized that this is a way that one could be served and it is not a violation of due process. He then addresses Brennen’s concurrence saying that to look at the “fairness” of several factors is too subjective to an already sufficient test. Doing so would invite unreasonable litigation for something that has already been decided.

Brennen’s concurrence says that it needs to follow the substantial contact with the forum state. He lists several benefits the defendant could have used to personally avail himself to that forum. As such, there is transient personal jurisdiction.


Although the courts were split concerning this matter, it is important to note that Transient personal jurisdiction (TAG) can easily be found if one was served while they are physically present in the forum state.

Additional Notes

States will still find this will give personal jurisdiction regardless of long-arm statutes. In other words, long-arm statutes apply to specific and general personal jurisdiction.

So far we have focused on other forms of personal jurisdiction

  1. Specific – Due Process through international Shoe in association with long-arm statutes
  2. General – Domicile.

Now, we’re going to start focusing on another version of personal jurisdiction:

  1. TAG = Transient Presence

Where you are physically present at then there is TAG jurisdiction. If a tort is committed in one state, you are domiciled in another, and currently visiting a third, you are subject to TAG jurisdiction in the third state.

Although this does not seem fair, it is, because the defendant chose to travel to that location.

If there is one thing to note: for TAG to occur, actual service (summons and complaint) must be given in that state at the time when they are in the forum state. This is true, “no matter how fleeting [the] visit.”

Why were the stakes high in this case? When it comes to family law 40 years ago, the basis for division of property was highly based on how the divorce was filed. She had filed for irreconcilable differences (50/50 division) and he had filed for desertion (more favorable for him). Burnham is the case that explores TAG and finds it valid. Why? Here there is another plurality.

  1. Scalia – This is the way we’ve always done it, so this is how we will do it. All have accepted it
  2. Brennen – Sure history is relevant, but we also need to make sure that it is fair.

When you sue a corporation, you sue the registered agent for service of process.

Consent and Waiver

Consent and waiver is the final way that someone can find personal jurisdiction.


Consent can happen in one of several ways

  1. Appearing in court and not raising an issue with jurisdiction
  2. Conduct (i.e. plaintiff filing a claim is subject to personal jurisdiction to defendants filing counterclaims in the same jurisdiction)
  3. Forum selection clauses
  4. Engaging in forum related conduct (i.e. business activity)

This trumps specific personal jurisdiction.However, this applies only to contracts.


Failure to raise an issue about jurisdiction waives the right to bring an issue with it later.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.