New York Federal Court Reaffirms Continued Validity of “Transient” Jurisdiction

In a recent decision, a U.S. District Court in New York rejected a constitutional due process-based challenge to what is known as “transient” or “tag” in personam jurisdiction.

The case, Asid Mohamad v. Jibril Rajoub, involved claims under, among others, the Torture Victims Protection Act, brought by the estate of a U.S. citizen alleged to have been tortured and killed in the West Bank in 1995.  The case was filed in 2005, but the defendant, the head of the Palestinian Preventive Security Force, was not served with process until 2017 when he landed at New York’s JFK airport.

The defendant moved to dismiss the complaint on several grounds, including lack of personal jurisdiction over him. His argument was that assertion of general jurisdiction over him by a New York court violated due process under the U.S. constitution.

The long-standing rule in New York is that a defendant who is served with summons and complaint within the state is subject to the jurisdiction of the courts in that state, including federal courts.  This “transient” jurisdiction rule applies even if the defendant has no other connections to the state.

Recently, however, there has been an expectation that the rule may be successfully challenged. In 2014, the U.S. Supreme Court issued a decision in Daimler v. Bauman, in which the court established a so-called “at home” rule for corporations. Applying this rule, the Daimler court held that subjecting Daimler to the general jurisdiction of California courts, a state in which neither the company nor any of its subsidiaries were “at home,” would be contrary to the fair play and substantial justice that due process demanded.

The defendant in Rajoub argued that the “at home” principles of Daimler should extend beyond corporate entities to individuals as well, and that, inasmuch as he was not “at home” in New York and had never had any “suit related contacts” with New York, assertion of general jurisdiction over him was, as in Daimler, in violation of due process.

The court, however, refused to extend Daimler’s “at home” rule to individuals, holding that “among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a state have jurisdiction over non-residents who are physically present in the state and that once having acquired jurisdiction over such persons by properly serving him with process, the state should retain jurisdiction to enter judgement against him, no matter how fleeting the visit.”

Thus, for now at least, transient jurisdiction over foreign individuals is alive and well in New York, even while jurisdiction over foreign corporations has been somewhat circumscribed by the Daimler.  It remains to be seen whether the Supreme Court will extend the “at home” rule to individuals as well.