Case of the Day: Chen v. Shi

The case of the day is Chen v. Shi (S.D.N.Y. 2013). Hua Chen and Yu Yun Zou were followers of the Falun Gong movement. They sued Honghui Shi, a Committee Secretary of the Chinese Communist Party and Director of the Bureau of Reeducation Through Labor of Guangdong Province. They alleged that they were persecuted and tortured on account of their adherence to Falun Gong, and they sued under the Alien Tort Statute and the Torture Victim Protection Act. They effected service of process on Shi while he was visiting New York for official meetings, which was lucky for them, since the likelihood of being able to effect service if Shi had been in China was essentially zero.

Shi did not appear or defend, and Chen and Zou sought entry of a default judgment.

The judge held that he lacked personal jurisdiction over Shi because he had “no connection” with New York other than his presence there as a “temporary visitor” when he was served with process. Thus the New York long-arm statute did not permit the exercise of jurisdiction, and in any event the judge held that the minimum contacts requirements of the Fourteenth Amendment were not satisfied.

I pause for a moment to note that the judge’s focus on New York may not have been correct. In a federal question case such as this, under FRCP 4(k)(2), if the defendant is not subject to personal jurisdiction in the courts of any of the states, the federal courts can exercise personal jurisdiction if permissible under the Fifth Amendment’s Due Process Clause. Now, it may be that Shi was amenable to jurisdiction in another US state, but I am guessing that he wasn’t. So the judge should have considered whether his contacts with the United States were sufficient, not just whether his contacts with New York were sufficient.

Anyway, the main point I want to raise is this: since when is personal service of a summons and complaint within the court’s territorial jurisdiction insufficient to give the court personal jurisdiction? I think this was settled in Burnham v. Superior Court, 495 U.S. 604 (1990):

Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State. The view developed early that each State had the power to hale before its courts any individual who could be found within its borders, and that, once having acquired jurisdiction over such a person by properly serving him with process, the State could retain jurisdiction to enter judgment against him, no matter how fleeting his visit. See, e.g., Potter v. Allin, 2 Root 63, 67 (Conn. 1793); Barrell v. Benjamin, 15 Mass. 354 (1819).

I think this was a clear mistake on the part of the judge, who should have reached the issues of immunity that really should underlie judicial reluctance to get involved in a case like this.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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