LAW 521-002 – Civil Procedure I

purposefully avail


Some intentional act by a party directed toward the forum state by which the party takes advantage of the benefits and privileges of the laws of the state, which justifies the exercise of personal jurisdiction by the forum state's courts over that party.

Alternatives ways of getting purposeful availment exist:

  1. Purposeful availment can be satisfied by purposefully availing of the stream of commerce:

    Stream of Commerce

    Stream of commerce theory permits jurisdiction when the defendant delivers his product into the stream of commerce through a distributor with the expectation that it will be purchased by consumers in the forum state such that he should reasonably anticipate being haled into court there.

    There are two rules on the sufficiency of stream of commerce:

    1. McIntyre Rule

      In J. McIntyre, Ltd. v. Nicastro, the Supreme Court had a 4/2/3 split on stream of commerce.

      The plurality view was that stream of commerce alone is not enough to constitute purposeful availment.

      Differs from the Asahi Rule, but since McIntyre had no majority, Asahi was not overruled.

    2. Asahi Rule

      In Asahi Metal Industry Co. v. Superior Court, the Supreme Court had a 4/4 split on stream of commerce.

      The plurality view was that stream of commerce alone is enough to constitute purposeful availment as long as the defendant was aware that the final product was being marketed in the forum state.

      McIntyre disagreed with this, but there was also no majority, so Asahi was not overruled.

    Courts will likely begin to lean toward McIntyre rule.

    One must check which rule his jurisdiction is following.

    Fourth Circuit follows McIntyre. However, it accepts that sufficient contacts exist if a defendant "targeted the forum" with it goods.

  2. Websites can also meet the purposeful availment requirement. Music Makers.

    There are three types of Internet activity:

    1. Passive site

      • Only provides information
      • Rarely gives jurisdiction unless the site is specifically directed at another state, i.e. defame person in another state (pretty much the only time it will)
    2. Semi-interactive site

      • Can communicate but not buy or sell
      • Look at the totality of the circumstances to see if there's personal jurisdiction, but if this is the only contact with the forum, it's unlikely to meet due process
    3. Interactive Site

      • Allows two-way communication and order
      • It is a contact that may meet minimum contacts. Repeated sales while knowing location will most likely meet due process

    Music Makers held the standard that it must:

    1. Direct electronic activity into state
    2. Have manifest intent of engaging in business
    3. Be that activity that creates a cause of action
  3. Another alternative to purposeful availment is the effects test:

    Effects Test

    The effects test is an alternative to purposeful availment in some jurisdictions.

    The 4th Circuit (and this class) has three elements to the effects test:

    1. Intentional tort
      • i.e. slander
    2. Plaintiff felt brunt of harm in forum, such that it is the focal point of harm
    3. Defendant expressly aim tortuous conduct at forum such that it is the focal point of tort activity