Civil Procedure I, Pages 143–149

Burnham v. Superior Court

Supreme Court of the United States, 1990


Petitioner Dennis Burnham married Francie Burnham in 1976 in West Virginia. In 1977 they moved to New Jersey, where they had two children. In July 1987, they decided to separate and file for divorce because of "irreconcilable differences," with Mrs. Burnham moving to California with the kids. In October 1987, petitioner filed for divorce in New Jersey on grounds of "desertion." He did not attempt to serve her with summons however. Mrs. Burnham after unsuccessfully demanding that they adhere to their prior agreement of divorce for "irreconcilable differences," brought suit for divorce in California in January 1988. Later that month, petitioner visited southern California on business, after which he went north to the San Francisco Bay area visit his children. After taking the older child to San Francisco for the weekend, he returned him to Mrs. Burnham, whom then served him with a California court summons and a copy of her divorce petition. He then returned to New Jersey.

Procedural History:

California courts refused to dismiss for want of personal jurisdiction.


Does the Due Process Clause of the Fourteenth Amendment deny 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?


Physical presence alone constitutes due process.


  • Fraud, unless they voluntarily stay after

  • Judicial process


  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 145–146

    Physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of "traditional notions of fair play and substantial justice."

  • Minimum contacts was set up as a test if the defendant was not in-state, assuming that if they were, there would be jurisdiction.


No, jurisdiction over nonresidents served in state is permissible for due process.

Concurring Opinions:

  • Justice Brennan: Being served in state is generally enough for jurisdiction, but it being the historical law of the land is not enough to satisfy due process. It's rather about how a defendant would then be able to enjoy a state's benefits without liability to them.

  • Justice Stevens: Don't want to explain, but majority and Brennan show that it was a very easy case.


Was a 9-0 decision.