In Burnham v. Superior Court, 495 U.S. 604 (1990), the U.S. Supreme Court unanimously held that being personally served with a lawsuit while physically present in a state is enough to give that state’s courts jurisdiction over you, even if you live elsewhere and the case has nothing to do with your activities in the state. The rule, often called tag jurisdiction or transient jurisdiction, means a business trip, a family visit, or any brief stop can expose you to being sued in the state where the papers reach your hand.
What Happened to Dennis Burnham
Dennis Burnham lived in New Jersey. After he and his wife separated, she moved with their children to California. When Burnham traveled to California to conduct business and visit his children, he was personally served with a court summons and his wife’s divorce petition.1Justia U.S. Supreme Court Center. Burnham v. Superior Court He had no permanent ties to California beyond the fact that his children lived there.
Burnham argued California courts had no authority over him because he lacked “minimum contacts” with the state. He filed a motion to quash the service, asking the court to void the notification and stop the proceedings. The California Superior Court denied his motion, and the state Court of Appeal agreed that his physical presence at the moment of service was a valid basis for jurisdiction.1Justia U.S. Supreme Court Center. Burnham v. Superior Court Burnham took the question to the U.S. Supreme Court.
What the Supreme Court Decided
All nine justices agreed that California had jurisdiction over Burnham. They could not agree on why. The decision produced four separate opinions with no single rationale commanding a majority, which matters because lower courts and lawyers have to decide which line of reasoning to follow when a case pushes the boundaries of the rule.
Justice Scalia wrote the plurality opinion, joined by Chief Justice Rehnquist and Justice Kennedy, with Justice White joining most of it. Justice Brennan wrote a concurrence joined by Justices Marshall, Blackmun, and O’Connor. Justice White and Justice Stevens each filed short separate concurrences.1Justia U.S. Supreme Court Center. Burnham v. Superior Court The Scalia and Brennan opinions represent the two competing ways of reading the Constitution on this question, and both remain live in later disputes.
Scalia’s History Test
The plurality held that tag jurisdiction is constitutional because it was an established practice at common law and remained so when the Fourteenth Amendment was ratified in 1868. Scalia pointed to “a formidable body of precedent, stretching from common-law antecedents through decisions at or near the crucial time of the Fourteenth Amendment’s adoption,” reflecting a “near-unanimous view that service of process confers state-court jurisdiction over a physically present nonresident, regardless of whether he was only briefly in the State or whether the cause of action is related to his activities there.”1Justia U.S. Supreme Court Center. Burnham v. Superior Court
Under this view, the analysis is simple. Centuries of acceptance settle the constitutional question, and no modern fairness test is required. The virtue is a bright line: if you are physically in a state and personally served, that state has jurisdiction over you.
Brennan’s Fairness Test
Justice Brennan, joined by three colleagues, reached the same result on different grounds. He argued that every assertion of personal jurisdiction, including tag jurisdiction, must be tested under the “minimum contacts” framework from International Shoe Co. v. Washington, 326 U.S. 310 (1945), which asks whether jurisdiction would offend “traditional notions of fair play and substantial justice.”2Justia U.S. Supreme Court Center. International Shoe Co. v. Washington
Brennan concluded that tag jurisdiction passes that test. Someone who voluntarily enters a state uses its roads, relies on its emergency services, and enjoys the protection of its police. That receipt of benefits creates a reciprocal obligation to answer to the state’s courts. Because Burnham chose to travel to California, subjecting him to its courts was not unfair.
The practical difference shows up at the edges. Under Scalia’s approach, physical presence plus service equals jurisdiction, full stop. Under Brennan’s approach, a court could theoretically find tag jurisdiction unfair in some extreme circumstance because the fairness inquiry stays open. The lack of a majority opinion keeps the theory somewhat unsettled even though the practical rule is firm.
When Tag Jurisdiction Does Not Apply
The rule has long-standing exceptions that the plurality acknowledged. Courts historically refused to enforce service on a person who was brought into the state by force or by fraud, and on people who were present only because they were parties or witnesses in unrelated court proceedings.1Justia U.S. Supreme Court Center. Burnham v. Superior Court
If someone tricks you into visiting a state specifically so they can serve you, you may have grounds to challenge the service. The same is true if you were physically compelled to enter the state, or if you were only there to appear in another case. Proving fraud or coercion adds a significant factual burden to what would otherwise be a straightforward jurisdictional fight, but the exceptions are real.
Corporations Are Treated Differently
Tag jurisdiction applies to individuals, not corporations. Catching a corporate officer during a layover and handing them papers does not automatically give that state jurisdiction over the company. For corporations, general jurisdiction is governed by Daimler AG v. Bauman, 571 U.S. 117 (2014), which held that a corporation is subject to general jurisdiction only where it is “essentially at home,” typically its state of incorporation or principal place of business.3Justia U.S. Supreme Court Center. Daimler AG v. Bauman That is a much higher bar than the Burnham rule, and anyone suing or defending a company should not assume serving an officer on the street substitutes for establishing jurisdiction over the entity.
If You Get Served While Traveling
The procedural trap catches people who don’t know it exists. Showing up in court and arguing the merits of the case waives your right to challenge jurisdiction, because the court treats your participation as consent to its authority.
The correct move is to challenge jurisdiction first, before engaging with the substance of the lawsuit. In federal court, this is done under Rule 12(b)(2) of the Federal Rules of Civil Procedure. Many states offer a similar mechanism, sometimes called a “special appearance,” which lets a defendant contest the court’s power without submitting to it.4Legal Information Institute. Rule 4 – Summons The jurisdictional objection must come before any response to the merits. File an answer, take discovery, or argue substance, and most courts treat the jurisdiction question as abandoned.
Ignoring the lawsuit is worse. If you don’t respond, the court can enter a default judgment against you, and a default judgment can be enforced across state lines. Avoiding the case does not make it go away.
Why the Case Still Matters
The decision has real consequences for anyone who crosses state lines. A business trip, a family visit, or a connecting flight that puts you on the ground can expose you to that state’s courts if someone hands you papers while you are there. The lawsuit does not need any connection to the state. Burnham’s divorce had nothing to do with California, and California’s courts still had full authority to hear it.
The Fourteenth Amendment’s Due Process Clause limits when a state can pull a nonresident into its courts, and Burnham confirms that physical presence at the moment of service sits comfortably within those limits.5Constitution Annotated. Amdt14.S1.7.1.1 Overview of Personal Jurisdiction and Due Process For anyone who travels, the practical takeaway is straightforward. If you set foot in a state and someone puts legal papers in your hand, that state’s courts likely have jurisdiction over you, and the burden shifts to you to challenge it properly and on time.