Rule 4(k)(2) and the Online Marketplace: An Efficient and Constitutional Route to Personal Jurisdiction over Foreign Merchants of Counterfeits

Authors

Taylor J. Pollier

Abstract

The online marketplace has exploded as an efficient way for U.S. consumers to get the goods they need and want delivered directly to their doors. At the same time, the prevalence of counterfeit goods offered for sale on those marketplaces has grown. Companies in the United States that own the intellectual property rights to products being counterfeited online often use various methods to stop the infringement before court intervention is necessary. Ultimately, however, those companies may need to sue the infringing party to enforce their rights. Without the 1993 addition of Federal Rule of Civil Procedure 4(k)(2), that would not be possible in many situations.

Rule 4(k)(2) serves as the federal long-arm statute, and it is often the best way for aggrieved intellectual property holders in the United States to argue for personal jurisdiction over foreign merchants violating their IP rights. Rule 4(k)(2) bridges the gap where a foreign defendant has sufficient contacts with the United States as a whole, but not sufficient contacts with any particular state to justify personal jurisdiction under any state's long-arm statute. The Rule requires that the defendant is not subject to jurisdiction in any state's courts of general jurisdiction, but that can be a tall order for a plaintiff who does not know the internal operations of the foreign company. To remedy this, courts employ a burden-shifting analysis that requires that the plaintiff make only a prima facie showing that the defendant is not subject to jurisdiction in any state's courts of general jurisdiction.

This Article calls for a more plaintiff-favorable approach wherein the courts presume that the defendant is not subject to jurisdiction in any state's courts of general jurisdiction. This interpretation of Rule 4(k)(2) favors economy and efficiency and accords with the purpose of the Rule. This Article further shows that Rule 4(k)(2) ought to be interpreted as liberally as possible, with constitutional due process providing a limit for its use.

First Page

163

Recommended Citation

Taylor J. Pollier, Rule 4(k)(2) and the Online Marketplace: An Efficient and Constitutional Route to Personal Jurisdiction over Foreign Merchants of Counterfeits, 61 Duq. L. Rev. 163 (2023).
Available at: https://dsc.duq.edu/dlr/vol61/iss1/11