Burnham v. Superior Court of California, County of Marin

PETITIONER: Dennis Burnham
RESPONDENT: Superior Court of California, Marin County
LOCATION: California Superior Court, Marin County

DOCKET NO.: 89-44
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: State appellate court

CITATION: 495 US 604 (1990)
ARGUED: Feb 28, 1990
DECIDED: May 29, 1990

James O. Devereaux - on behalf of the Respondents
Richard Sherman - on behalf of the Petitioner

Facts of the case

Dennis and Francie Burnham were married in 1976 and moved to New Jersey in 1977. In July of 1987, they decided to separate and agreed that Mrs. Burnham would take custody of the children, move to California, and file for divorce citing irreconcilable differences. In October of 1987, Mr. Burnham filed for divorce in New Jersey citing desertion. Mrs. Burnham successfully demanded that Mr. Burnham respect their previous agreement and filed for divorce in California in January 1988. Later that month, Mr. Burnham was in California on business and visited his children. While there, he was served with a California court summons and a copy of the divorce petition. Later that year, Mr. Burnham appeared before the California Superior Court and moved to quash the petition because the court lacked jurisdiction over him, as his only contacts with California were short business trips. The Superior Court denied the motion and the California Court of Appeal affirmed.


Does the Due Process Clause of the Fourteenth Amendment prohibit state courts from exercising jurisdiction over a nonresident who was temporarily in the state and was personally served with process in a suit unrelated to his presence in the state?


Media for Burnham v. Superior Court of California, County of Marin

Audio Transcription for Oral Argument - February 28, 1990 in Burnham v. Superior Court of California, County of Marin

William H. Rehnquist:

We'll hear argument next in No. 89-44, Dennis Burnham v. The Superior Court of California.

Mr. Sherman.

Richard Sherman:

Mr. Chief Justice, and may it please the Court:

The issue presented here is whether a state can exercise personal jurisdiction over a nonresident defendant who was personally served while present in the state if that defendant does not otherwise have sufficient contacts with the state to satisfy the minimum contacts test announced in International Shoe.

The issue arises in the following context.

The parties lived virtually all their married lives in New Jersey.

The split up in 1987.

They had two children about ages 2 and 8 at the time, and they entered into a marital settlement agreement resolving everything in New Jersey.

The wife then moved to California with the children, as planned, and husband filed for dissolution in New Jersey and asked the court to incorporate their marital settlement agreement.

Before he served Mrs. Burnham with his petition, she filed an action in California for legal separation and filed him after he brought the children back from visiting with them to her home in Mill Valley, California.

Mr. Burnham moved to quash service arguing that he did not have sufficient minimum contacts under Kulko, International Shoe and similar cases and that under this Court's decision in Shaffer v. Heitner the fact that he was served in California was no longer relevant at all.

The trial court initially agreed with Mr. Burnham and granted his motion, in part holding that there were not sufficient minimum contacts and there was no personal jurisdiction.

It reconsidered that order when Mrs. Burnham's attorney convinced it that the fact that he was served in the forum was sufficient and that notwithstanding what this Court held in Shaffer and the language in Shaffer, personal service is still sufficient.

The court of appeal denied the petition for a writ in a decision which, again, said that Shaffer, the language in Shaffer, had not changed the traditional rule... it goes by the nickname of transient jurisdiction.

It relied on cases such as the Supreme Court's case in Nevada, Cariaga which had said this Court has never directly held that transient jurisdiction is no good so we will apply it until we are instructed otherwise.

We're here today to ask you to instruct the courts of this land otherwise, to give effect to what the Court said in Shaffer, that personal jurisdiction in all cases must be tested by the minimum contacts test.

Now, it's important to keep in mind that although the doctrine is often called transient jurisdiction or sometimes, more colorfully, gotcha jurisdiction, what's really at issue is not whether the defendant is passing through momentarily.

What's at issue is whether the fact of service on a defendant while he is in the forum is alone sufficient.

The traditional view that it was founded on the notion that... what jurisdiction is all about, what personal jurisdiction is all about is whether the state has power over the defendant, physical power over the defendant.

And it does, according to the traditional view, when a defendant is within its boundaries.

That view was long criticized by the commentators and was rejected by this Court in International Shoe and then again in Shaffer.

That power, physical power over the defendant is not fundamentally the basis for the exercise of state court jurisdiction.

Sandra Day O'Connor:

Mr. Sherman, even if you are correct that some minimum contact is necessary for personal jurisdiction, wouldn't the transitory presence within the state of someone meet that test--

Richard Sherman:


Sandra Day O'Connor:

--in a good many instances?

Richard Sherman:

--I think not, Your Honor.

And it's important to distinguish--

Sandra Day O'Connor:

I would have thought so and that perhaps someone who voluntarily enters a state to transact some business or to visit there might well meet whatever minimum contacts are--

Richard Sherman:

--That... that--

Sandra Day O'Connor: