ESAB Group Inc v. Centricut Inc

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ESAB GROUP, INCORPORATED,
Plaintiff-Appellee,
v.
CENTRICUT, INCORPORATED; THOMAS
ALEY,
Defendants-Appellants,
No. 96-2504
and
JOHN BERGEN; THOMAS FITZPATRICK;
GORDON THOMAS ALEY; LINDA ALEY,
d/b/a/ Corbin Consulting; MARK
LINDBERG,
Defendants.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Chief District Judge.
(CA-96-168-4-2)
Argued: July 9, 1997
Decided: October 17, 1997
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Niemeyer wrote the opinion, in which Judge Michael and
Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: John Phillips Linton, SINKLER & BOYD, P.A., Charles-
ton, South Carolina, for Appellants. C. Craig Young, WILLCOX,
MCLEOD, BUYCK & WILLIAMS, Florence, South Carolina, for
Appellee. ON BRIEF: Manton M. Grier, SINKLER & BOYD, P.A.,
Columbia, South Carolina, for Appellants. Wm. Reynolds Williams,
WILLCOX, MCLEOD, BUYCK & WILLIAMS, Florence, South
Carolina, for Appellee.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
In this case we must determine whether the district court in South
Carolina obtained personal jurisdiction over New Hampshire defen-
dants pursuant to a complaint alleging a civil RICO claim and related
state law claims. The district court, relying on South Carolina's long-
arm statute, found that the defendants' intentional tortious conduct
directed at the South Carolina plaintiff supplied sufficient minimum
contacts to satisfy the requirements of the South Carolina statute and
the Fourteenth Amendment.
For reasons that follow, we disagree with the district court's ratio-
nale. But we nonetheless affirm the district court's finding of personal
jurisdiction over the defendants because of the nationwide service of
process authorized by the RICO statute and the doctrine of pendent
personal jurisdiction.
I
The ESAB Group, Inc. is a Delaware corporation located in Flor-
ence, South Carolina, which engages in the business of developing
and manufacturing welding and cutting systems. In its amended com-
plaint against Centricut, Inc., Thomas Aley, and others, the ESAB
Group alleged that Centricut and Aley participated in a conspiracy to
appropriate the ESAB Group's trade secrets and customer lists. The
complaint alleged that they accomplished this with the assistance of
2
John Bergen, a Florida resident who served as an ESAB Group sales
representative in Florida from 1980 to 1984 and as the ESAB Group's
regional sales manager in Florida from 1987 to 1995. The ESAB
Group charged in its amended complaint that the misappropriation
was effected "pursuant to an intentional plan . .. to appropriate Plain-
tiff's business" and by means of a "scheme or artifice to defraud." The
complaint contains six counts based on state law, alleging conspiracy,
intentional interference with economic relations, breach of contract
accompanied by a fraudulent act, South Carolina Unfair Trade Prac-
tices Act violations, misappropriation of trade secrets, intentional
interference with prospective contractual relations, and entitlement to
equitable relief. It also contains a count for civil RICO based on 18
U.S.C. § 1962.
Centricut is a New Hampshire limited liability company that manu-
factures and sells replacement parts for cutting machines, and argu-
ably competes to some degree with the ESAB Group. Centricut
conducts its business entirely through mail order. It has no offices or
sales representatives in South Carolina; it has no property in South
Carolina; it has no phone listings there; and it has never paid South
Carolina taxes. Moreover, it claims that no employee has ever trav-
eled to South Carolina "for any purpose." As of 1995, Centricut did
have 26 customers who resided in South Carolina, constituting 1% of
all of its customers and representing .079% of its gross annual sales.
It also purchased on one occasion between $10,000 and $20,000
worth of parts from a South Carolina supplier. Centricut stated that
it had never targeted formal advertising at South Carolina, having
only once published formal advertising in a trade journal of national
circulation.
Aley, Centricut's CEO at the time, stated in an affidavit that he was
a New Hampshire resident until November 1995 and a Florida resi-
dent thereafter. He stated that for the past 25 to 30 years he has never
been in South Carolina and that he has conducted no business and
owns no property there.
Centricut and Aley filed several motions, one of which sought to
dismiss the complaint under Federal Rule of Civil Procedure 12(b)(2),
alleging that their contacts with South Carolina were insufficient to
subject them to personal jurisdiction there. The ESAB Group
3
responded that the defendants "purposefully directed their activities
toward the State of South Carolina and its corporate citizens, and this
litigation arises from those activities." The ESAB Group claimed
alternatively that the court had personal jurisdiction over the defen-
dants by reason of the nationwide service of process in RICO actions
permitted by 18 U.S.C. § 1965(b).
The district court denied the motion to dismiss, holding that it had
personal jurisdiction over Centricut and Aley, based on "the effects
test" drawn from Calder v. Jones, 465 U.S. 784 (1984). The district
court said that because Centricut's actions "were designed to damage
the [South Carolina] plaintiff . . . and did damage the plaintiff," it was
fair to hale Centricut into a South Carolina court. The district court
granted leave to the defendants to file an interlocutory appeal under
28 U.S.C. § 1292(b), and we did likewise.
II
Federal district courts may exercise in personam jurisdiction only
to the degree authorized by Congress acting under its constitutional
power to "ordain and establish" the lower federal courts. U.S. Const.
art. III, § 1; see also id. art. I, § 8, cl. 9. The exercise of personal juris-
diction is also constrained by the Due Process Clause of the Fifth
Amendment. See Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S.
97, 103-04 (1987). As prerequisites to exercising personal jurisdiction
over a defendant, a federal court must have jurisdiction over the sub-
ject matter of the suit, venue, "a constitutionally sufficient relation-
ship between the defendant and the forum," and"authorization for
service of a summons on the person." Id. at 104. Thus, a federal
court's exercise of jurisdiction over a person is closely linked to
effective service of process.
Federal Rule of Civil Procedure 4(k)(1) provides that "[s]ervice of
a summons or filing a waiver of service is effective to establish [a
federal court's] jurisdiction over the person of a defendant" if such
service is accomplished on a defendant whom the law has made ame-
nable to the court's process. See also Omni Capital, 484 U.S. at 104.
Rule 4(k) enumerates five sources authorizing service to effect in
personam jurisdiction: (1) state law; (2) Federal Rules of Civil Proce-
dure 14 and 19 (relating to third party practice and joinder), provided
4
service is effected "not more than 100 miles from the place from
which the summons issues"; (3) the federal interpleader statute, 28
U.S.C. § 1335; (4) federal statute; and (5) Federal Rule of Civil Pro-
cedure 4(k)(2) itself, to enforce claims "arising under federal law" on
defendants who are not subject to the jurisdiction of any state.
In the district court, the ESAB Group argued that it had served the
defendants in the manner specified by South Carolina's long-arm stat-
ute, S.C. Code Ann. §§ 36-2-803(1)(c) & (d), and by RICO, 18
U.S.C. § 1965. Because the district court held that the ESAB Group
had effectively served the defendants under South Carolina's long-
arm statute, the court did not address whether service was effective
under the RICO statute.
When authorized by Federal Rule of Civil Procedure 4(k)(1)(A),
service of process sufficient to exercise jurisdiction over a defendant
is limited by state law, so that any challenge to the personal jurisdic-
tion requires us to assess the jurisdiction of the courts in the state
where the district court is located. Centricut and Aley contend that
service on them under South Carolina's long-arm statute crossed the
boundaries of that statute as constrained by the Fourteenth Amend-
ment and that the district court erred in finding such service effective.
Since in personam jurisdiction of a state court is limited by that
state's laws and by the Fourteenth Amendment, we first inquire
whether the state long-arm statute authorizes the exercise of jurisdic-
tion over the defendant. See Wolf v. Richmond County Hosp. Auth.,
745 F.2d 904, 909 (4th Cir. 1984). If it does, we must then determine
whether the state court's exercise of such jurisdiction is consistent
with the Due Process Clause of the Fourteenth Amendment. See id.Because Rule 4(k)(1)(A) delimits the scope of effective federal ser-
vice in terms of the limits on state court jurisdiction, our inquiry into
the federal court's jurisdiction pursuant to Rule 4(k)(1)(A) incorpo-
rates the Fourteenth Amendment due process standard, even though
that Amendment applies of its own force only to states. See U.S.
Const. amend. XIV, § 1 ("No State shall . .. ."); see generally 4
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1067.1 (Supp. 1997) (implicit in Rule 4(k)(2) "is the
concept that a federal district court must employ a state long-arm stat-
ute and use a Fourteenth Amendment due process analysis to assess
5
the exercise of personal jurisdiction over a non-resident of the forum
state").
South Carolina's long-arm statute provides in relevant part:
A court may exercise personal jurisdiction over a person
who acts directly or by an agent as to a cause of action aris-
ing from the person's . . . (c) commission of a tortious act
in whole or in part in the State; [or] (d) causing tortious
injury or death in this State by an act or omission outside
this State if he regularly does or solicits business, or engages
in any other persistent course of conduct, or derives substan-
tial revenue from goods used or consumed or services ren-
dered, in this State.
S.C. Code Ann. §§ 36-2-803(1)(c) & (d). South Carolina's long-arm
statute has been interpreted to reach the outer bounds permitted by the
Due Process Clause. See Southern Plastics Co. v. Southern Commerce
Bank, 423 S.E.2d 128, 130 (S.C. 1992); Hammond v. Cummins
Engine Co., 336 S.E.2d 867, 868 (S.C. 1985); Triplett v. R. M. Wade
& Co., 200 S.E.2d 375, 379 (S.C. 1973); see also Federal Ins. Co. v.
Lake Shore, Inc., 886 F.2d 654, 657 n.2 (4th Cir. 1989). Conse-
quently, "the statutory inquiry necessarily merges with the constitu-
tional inquiry, and the two inquiries essentially become one." Stover
v. O'Connell Assocs., Inc., 84 F.3d 132, 135-36 (4th Cir. 1996). We
thus turn to the constitutional question of whether Centricut and Aley
have established "minimum contacts with [South Carolina] such that
the maintenance of the suit does not offend `traditional notions of fair
play and substantial justice.'" International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (quoting Milliken v. Myer, 311 U.S. 457,
463 (1940)).
As we explained more fully in Lesnick v. Hollingsworth & Vose
Co., 35 F.3d 939, 941-46 (4th Cir. 1994), and reiterated in Stover, 84
F.3d at 136, the jurisprudence of minimum contacts has developed as
a surrogate for presence in the state because "[a] state's sovereignty
remains territorial, and its judicial power extends over only those per-
sons, property, and activities within its borders." Id. A state's laws
"have no operation in other states except as allowed by those states
or by comity." Id. The question, then, is whether a defendant's con-
6
tacts with the forum state are so substantial that they amount to a sur-
rogate for presence and thus render the exercise of sovereignty just,
notwithstanding the lack of physical presence in the state. "[I]t is
essential in each case that there be some act by which the defendant
purposefully avails itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of
its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958). Such activi-
ties need not involve physical presence in the state, but must still be
"purposefully directed toward the forum state." Lesnick, 35 F.3d at
945; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76
(1985).
It is now generally accepted that when the plaintiff's cause of
action does not arise from the defendant's contacts with the forum
state so as to provide "specific jurisdiction" for the claim based on the
"`relationship among the defendant, the forum, and the litigation,'"
Helicopteros Nacionales de Columba v. Hall, 466 U.S. 408, 414
(1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)), "gen-
eral jurisdiction" may nevertheless be asserted over a defendant
whose activities in the forum state have been "continuous and system-
atic." Id. at 414-15 (citations omitted). But the threshold level of
minimum contacts to confer general jurisdiction is significantly
higher than for specific jurisdiction. See generally 4 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1067,
at 295-98 (1987)("threshold contacts required for general jurisdiction
are very substantial, indeed"). In the case before us, the ESAB Group
argues that standards for both general and specific jurisdiction have
been met. We will address each in order.
A
The ESAB Group contends that Centricut and Aley have suffi-
ciently "continuous and systematic" contacts with South Carolina to
justify its exercise of general in personam jurisdiction, presumably
under S.C. Code Ann. § 36-2-803(1)(d). We disagree.
Although 26 of Centricut's customers reside in South Carolina, all
are mail order customers and Centricut does not service them in South
Carolina. It maintains no sales representatives or other agents there,
and the business attributable to Centricut's South Carolina customers
7
constitutes less than one-tenth of one percent of its nationwide sales
volume. These contacts, we believe, fall far short of the more exten-
sive contacts that we have found sufficient in our general jurisdiction
cases.
In Ratliff v. Cooper Labs., Inc., 444 F.2d 745, 748 (4th Cir. 1971),
we held that where a defendant does no more than advertise and
employ salesmen in a forum state, such contacts are not sufficient to
justify general jurisdiction. We followed Ratliff with our decision in
Lee v. Walworth Valve Co., 482 F.2d 297 (4th Cir. 1973), in which
we upheld general jurisdiction over a company whose annual sales in
the forum were approximately $200,000 and where sales representa-
tives spent approximately 80 days per year in the forum state. But the
exercise of jurisdiction there was unusual because it was supported in
part by the fact that the cause of action arose on the high seas and thus
did not arise within the sovereign boundaries of any of the United
States. Our decisions since Lee make clear that even the contacts in
Lee were marginal.
In Wolf, for example, we found no general jurisdiction based on a
Georgia hospital's substantial, though largely unsolicited contacts
with South Carolina. We explained that Lee was informed by the con-
sideration of "whether there [was] `any other state whose courts might
provide a more likely forum.'" 745 F.2d at 912 (quoting Lee, 482
F.2d at 299). Finally, in Nichols v. G.D. Searle & Co., 991 F.2d 1195(4th Cir. 1993), we followed Ratliff and held that a court in Maryland
could not assert general jurisdiction over a company that employed 13
Maryland residents as sales representatives and one Maryland resident
as a district manager. Moreover, the defendant held district meetings
three times annually in Maryland, held regional and national meetings
twice annually, and had between $9 million and $13 million annual
sales in Maryland, constituting two percent of its total sales. In addi-
tion, the defendant contracted with the Maryland firm for pharmaceu-
tical research and made roughly one percent of its annual purchases
in Maryland. Although the fact that none of the plaintiffs in Nichols
were Maryland residents entered into our analysis, see id. at 1199 n.3,
residency alone was not dispositive of the issue of whether the defen-
dant had sufficient contacts to warrant jurisdiction. See Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 779-80 (1984) ("[p]laintiff's
residence in the forum State is not a separate requirement, and lack
8
of residence will not defeat jurisdiction established on the basis of
defendant's contacts"). Indeed, a forum state's interest in adjudicating
the claims is merely one factor to consider once the defendant's con-
tacts with the state have been established. See , e.g., id.When compared with the level of contacts that we found insuffi-
cient in both Ratliff and Nichols, Centricut's contacts with South Car-
olina are far less extensive. Moreover, we do not find Centricut's
contacts to be constitutionally sufficient even when we consider that,
unlike Nichols, South Carolina courts in this case would be seeking
to vindicate the interests of their own citizens. Centricut's South Car-
olina contacts are not even as extensive as those present in Lee, where
there was the additional consideration that no state had an obvious
connection with the cause of action. In sum, we conclude that South
Carolina may not exercise general jurisdiction over Centricut and
Aley consistent with the constitutional guarantee of due process.
Accordingly, a federal district court cannot do so pursuant to Federal
Rule Civil Procedure 4(k)(1)(A).
B
Even if Centricut's contacts with South Carolina are not suffi-
ciently continuous and systematic to justify general jurisdiction, the
ESAB Group contends that specific jurisdiction may nonetheless be
exercised as to the causes of action before the court. With respect to
specific jurisdiction, "[t]he touchstone . . . remains that an out-of-state
person have engaged in some activity purposefully directed toward
the forum state." Lesnick, 35 F.3d at 945. The contacts related to the
cause of action must create a "substantial connection" with the forum
state, see McGee v. International Life Ins. Co. , 355 U.S. 220, 223
(1957), although this connection need not be as extensive as is neces-
sary for general jurisdiction. As with general jurisdiction, however,
the defendant's actions must be directed at the forum state in more
than a random, fortuitous, or attenuated way. See Burger King, 471
U.S. at 475; Keeton, 465 U.S. at 774; World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 299 (1980).
In the case before us, New Hampshire residents Centricut and Aley
allegedly entered into a relationship with Bergen, a resident of Flor-
ida. All relations among the three were carried out in and between
9
New Hampshire and Florida. The only South Carolina"contact"
related to this suit is that Centricut and Aley knew that the sales leads
that Bergen supplied might, if fruitful, ultimately result in less sales
to the ESAB Group, which was headquartered in South Carolina.
Indeed, at the very most, it can be said that Centricut intended to gain
a competitive advantage (allegedly tortiously) over the ESAB Group
by making sales which the ESAB Group might otherwise have made.
We believe, however, that such knowledge and intent is too attenu-
ated to constitute a "substantial connection" with South Carolina. The
evidence presented indicates that Bergen's leads were for companies
located across the United States and Canada. Only one such company
appears to have been located in South Carolina, and the evidence
presented indicates that no sales in South Carolina were ever made
based upon Bergen's leads. This activity, standing alone, does not
support proof of an intent by Centricut to avail itself of the privilege
of conducting activities in South Carolina. See Hanson, 357 U.S. at
253 ("The unilateral activity of those who claim some relationship
with a nonresident defendant cannot satisfy the requirement of contact
with the forum state"). Nor does it manifest behavior intentionally tar-
geted at and focused on South Carolina, see Calder v. Jones, 465 U.S.
784, 789-90 (1984) (jurisdiction of forum state upheld where libel
"expressly aimed" at forum state with knowledge that "potentially
devastating impact" would be felt there), such that Centricut can be
said to have "entered" South Carolina in some fashion, see
Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Ltd.
Partnership, 34 F.3d 410, 412 (7th Cir. 1994) (discussing Calder).
Instead, Centricut focused its activities more generally on customers
located throughout the United States and Canada without focusing on
and targeting South Carolina. Cf. Calder , 465 U.S. at 789 (distin-
guishing case before it from "untargeted" conduct).
The ESAB Group contends, however, that, wherever the sales were
made by Centricut, and thus lost by the ESAB Group, they were ulti-
mately felt in South Carolina at the ESAB Group's headquarters.
While this is undoubtedly true, when unaccompanied by other con-
tacts, it is ultimately too unfocused to justify personal jurisdiction. See
Indianapolis Colts, 34 F.3d at 412 (noting that in cases upholding
jurisdiction based on injury in the forum state to intellectual property
or reputation, "[t]he defendant had also`entered' the state in some
fashion"). Instead of grounding jurisdiction on a defendant's decision
10
to "purposely avail[ ] itself of the privilege of conducting activities
within the forum state," Hanson, 357 U.S. at 253, or on a defendant's
activities "expressly aimed" at the forum state, Calder, 465 U.S. at
789, jurisdiction would depend on a plaintiff's decision about where
to establish residence. Such a theory would always make jurisdiction
appropriate in a plaintiff's home state, for the plaintiff always feels
the impact of the harm there. Although the place that the plaintiff
feels the alleged injury is plainly relevant to the inquiry, it must ulti-
mately be accompanied by the defendant's own contacts with the state
if jurisdiction over the defendant is to be upheld. Because those con-
tacts in this case were too attenuated and insubstantial to provide a
constitutionally sufficient basis for South Carolina courts to exercise
either specific or general in personam jurisdiction over Centricut, the
district court could not exercise in personam jurisdiction pursuant to
service under Rule 4(k)(1)(A).
III
Although we conclude that personal jurisdiction may not be exer-
cised over Centricut and Aley under Federal Rule of Civil Procedure
4(k)(1)(A) because a South Carolina court could not assert such juris-
diction, we must now address the ESAB Group's alternative basis for
personal jurisdiction based on 18 U.S.C. § 1965(b).
One of the sources enumerated in Federal Rule of Civil Procedure
4(k) for service that effectively enables the exercise of personal juris-
diction over a defendant is "a statute of the United States." See Fed.
R. Civ. P. 4(k)(1)(D). In this case, a federal statute does authorize
such service.
In enacting the Organized Crime Control Act of 1970, Pub. L. No.
91-452, 84 Stat. 922 (1970), reprinted in 1970 U.S.C.C.A.N. 1073,
Congress prohibited various activities generally associated with orga-
nized crime. See 18 U.S.C. § 1962. In addition to providing criminal
penalties, see 18 U.S.C. § 1963, Congress granted a private civil right
of action to "[a]ny person injured in his business or property by rea-
son of a violation of" the RICO provisions. 18 U.S.C. § 1964(c). The
RICO statute authorizes venue for civil actions in any district in
which the defendant "resides, is found, has an agent, or transacts his
affairs." 18 U.S.C. § 1965(a). And it authorizes service of process "in
11
any judicial district in which such person resides, is found, has an
agent, or transacts his affairs," 18 U.S.C. § 1965(d), evidencing Con-
gress' desire that "[p]rovision [be] made for nationwide venue and
service of process." H. Rep. No. 91-1549, at 4 (1970), reprinted in
1970 U.S.C.C.A.N. 4007, 4010. Although 18 U.S.C.§ 1965 is enti-
tled "Venue and process," the fact that it also authorizes service of
process makes it relevant to personal jurisdiction because of Federal
Rule of Civil Procedure 4(k)(1)(D). "Where," as here, "Congress has
authorized nationwide service of process . . . so long as the assertion
of jurisdiction over the defendant is compatible with due process, the
service of process is sufficient to establish the jurisdiction of the fed-
eral court over the person of the defendant." Hogue v. Milodon Eng'g,
Inc., 736 F.2d 989, 991 (4th Cir. 1984); see also Republic of Panama
v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 942 (11th Cir.
1997) (section 1965(d) of RICO statute, providing for service in any
judicial district in which defendant is found, provides statutory basis
for personal jurisdiction).
The due process constraint on service under Federal Rule of Civil
Procedure 4(b)(1)(D), is not, however, grounded in the Fourteenth
Amendment, which circumscribes service under state process pursu-
ant to Rule 4(b)(1)(A). See Republic of Panama , 119 F.3d at 942;
Hogue, 736 F.2d at 991. Rather, it is the Due Process Clause of the
Fifth Amendment which constrains the exercise of the federal govern-
ment's sovereign powers. See id.; Omni Capital, 484 U.S. at 103-04;
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites, 456 U.S.
694, 702 n.10 (1982). The Fifth Amendment's Due Process Clause
not only limits the extraterritorial scope of federal sovereign power,
but also protects the liberty interests of individuals against unfair bur-
den and inconvenience. See, e.g., Republic of Panama, 119 F.3d at
945-48; cf. World-Wide Volkswagen, 444 U.S. at 291-92 (noting that
the minimum contacts test under the Fourteenth Amendment's Due
Process Clause functions both to protect states in their status as equal
sovereigns and to protect individuals against unfair burden and incon-
venience). However, when the defendant is located within the United
States, he "must look primarily to federal venue requirements for pro-
tection from onerous litigation," Hogue, 736 F.2d at 991, because "it
is only in highly unusual cases that inconvenience will rise to a level
of constitutional concern," Republic of Panama, 119 F.3d at 947.
12
In this case, both Centricut and Aley have been served with process
in a judicial district where they respectively reside, are found, or
transact their affairs. Because they have been validly served pursuant
to RICO's nationwide service provision, 18 U.S.C.§ 1965(d), in
personam jurisdiction over them is established, provided that such
jurisdiction comports with the Fifth Amendment. We believe that it
does, discerning no evidence from the record in this case of such
extreme inconvenience or unfairness as would outweigh the congres-
sionally articulated policy of allowing the assertion of in personam
jurisdiction in South Carolina. See 4 Wright & Miller, § 1067.1, at
331 (1987) (congressional policy choice that includes nationwide ser-
vice of process "should be afforded substantial weight"); see also
Republic of Panama, 119 F.3d at 948 (noting that"the burden is on
the defendant" to show that the burden of distant litigation is so great
as to put him at a "severe disadvantage"). Nor do we believe the dic-
tates of judicial efficiency counsel so strongly against a federal forum
in South Carolina that constitutional due process is offended. While
there is no doubt some inconvenience to the defendants in having to
defend this action in South Carolina, it is not so extreme as to defeat
the exercise of personal jurisdiction pursuant to valid service of pro-
cess, although it may certainly factor into a transfer decision. See id.
at 947 n.25. Accordingly, we hold that the district court in South Car-
olina may constitutionally exercise in personam jurisdiction over both
Centricut and Aley.
In so holding, we do not decide any issues of venue raised by the
defendants. We note that although the district court essentially found
that Centricut transacts its affairs in South Carolina by virtue of hav-
ing suppliers and customers there, it made no findings as to whether
Aley "transacts his affairs" (emphasis added) in South Carolina, as is
required by 28 U.S.C. § 1965(a). That may mean that with respect to
Aley venue is not proper in South Carolina under§ 1965(a). The dis-
trict court may ultimately have to decide whether venue is proper,
either under 18 U.S.C. § 1965(a) or (b), or under the general venue
statutes. The question of in personam jurisdiction, however, depends
on whether service of process has been authorized. Section 1965(d)
authorizes service of process "in any judicial district in which such
person . . . is found." Because service was accomplished on the defen-
dants where they were found, personal jurisdiction was established.
13
IV
Even though the district court has personal jurisdiction over the
defendants to adjudicate the RICO claim because of its authorization
for nationwide service of process, the question remains whether that
service authorizes the district court to assert personal jurisdiction over
the defendants to adjudicate the state law claims against them. If a
defendant's conduct in the forum state provides insufficient contacts
with the state to justify specific long-arm jurisdiction, two questions
arise: First, whether the defendant has reasonable expectations not to
be tried there on the state claims, which may not even arise under the
laws of the forum state; and second, whether the defendant in these
circumstances has a constitutional protection against adjudication of
the state claims against him in a state which is not authorized to assert
personal jurisdiction over him. These questions have not been
answered in this circuit.
The existence of these questions highlights the substantial varia-
tions in authorization provided by the sources enumerated in Federal
Rule of Civil Procedure 4(k) for service of process. Even for federal
claims, the effective territorial authority of the federal court may dif-
fer significantly from case to case, depending on the federal statute
involved. For example, if the claim is based on a federal statute autho-
rizing nationwide service of process, personal jurisdiction may be
asserted over a defendant anywhere in the country, whereas if the stat-
ute creating the federal claim does not provide for nationwide service
of process, process may extend only to the boundaries of the state in
which the district lies. This poses an infrequently presented question:
If a case includes a claim brought under a federal statute authorizing
a nationwide service of process and another claim under a statute or
under state law for which nationwide service of process is not avail-
able, does the court have personal jurisdiction over the defendant to
adjudicate the entire case?
A somewhat analogous problem arose in the context of subject
matter jurisdiction, which, of course, is quite distinct in principle from
personal jurisdiction. See Compagnie des Bauxites, 456 U.S. at 701-
05. Nevertheless, the analogy is useful. To resolve the problem of
whether a federal court which is presented with the resolution of a
federal claim may also resolve state claims arising out of the same
14
nucleus of operative fact, the Supreme Court developed the doctrine
of pendent jurisdiction. See, e.g., United Mine Workers v. Gibbs, 383
U.S. 715 (1966). Under that doctrine, when a claim authorized by fed-
eral law and by Article III of the Constitution is properly in a federal
court, and that claim is so related to a state claim not independently
subject to federal jurisdiction that the two may be considered "one
constitutional case," the federal court has pendent jurisdiction to adju-
dicate the state claim. Id. at 725. The Court articulated the necessary
and proper relationship between the claims that they"must derive
from a common nucleus of operative fact." Id . But even so, pendent
jurisdiction is a discretionary power which is exercised in furtherance
of "judicial economy, convenience and fairness to the litigants." Id.
at 726. The doctrine has since been codified at 28 U.S.C. § 1367.
We believe that similar considerations urge that we recognize pen-
dent personal jurisdiction of a district court which has obtained per-
sonal jurisdiction over a defendant by reason of a federal claim to
adjudicate state claims properly within the court's subject matter
jurisdiction, even though that state's long-arm statute could not autho-
rize service over the defendants with respect to the state claims.
When a federal statute authorizes a federal district court to exercise
personal jurisdiction over a defendant beyond the borders of the dis-
trict and the defendant is effectively brought before the court, we can
find little reason not to authorize the court to adjudicate a state claim
properly within the court's subject matter jurisdiction so long as the
facts of the federal and state claims arise from a common nucleus of
operative fact. The defendant will have to adjudicate the facts of the
federal claim, and it could impose only a minimal burden to require
the defendant to provide a defense on the factually-related state claim.
We agree with the observation that
judicial economy and convenience of the parties is best
facilitated by a consideration of all legal theories arising
from a single set of operative facts. . . . Once that set of facts
and defendants are legitimately before th[e] court . . . little
would be gained by not requiring a defendant to defend
against a certain type of theory superimposed upon those
facts.
15
Sohns v. Dahl, 392 F. Supp. 1208, 1218 (W.D. Va. 1975). Accord-
ingly, we conclude that under the doctrine of pendent personal juris-
diction, the district court has authority over the defendants to decide
both the federal and the state claims alleged against them. In recog-
nizing pendent personal jurisdiction, we join the other circuits that
have done so. See IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d
1049, 1056 (2d Cir. 1993); see also Oetiker v. Jurid Werke, G.m.b.H.,
556 F.2d 1, 4-5 (D.C. Cir. 1977); Robinson v. Penn Central Co., 484
F.2d 553, 555 (3d Cir. 1973).
Our recognition of pendent personal jurisdiction should present no
constitutional objection any more serious than did pendent jurisdic-
tion involving the court's subject matter jurisdiction. Once a court has
a constitutional case, in the Article III sense, properly before it, ser-
vice by a court sufficient to assert personal jurisdiction over a defen-
dant by any authorized mechanism consistent with due process may
be held to apply to the entire constitutional case. In this case, the par-
ties agree that the federal court has subject matter jurisdiction over the
ESAB Group's claims and is thus competent to adjudicate them. They
also agree that the factual nucleus for the state claims and the RICO
claim is the same. Since the court has personal jurisdiction over the
defendants under service of process authorized by the Federal Rule of
Civil Procedure 4(b)(1)(D) and by the RICO statute, we can find no
constitutional bar to requiring the defendants to defend the entire con-
stitutional case, which includes both federal and state claims arising
from the same nucleus of facts, so long as the federal claim is not
wholly immaterial or insubstantial. See Republic of Panama, 119 F.3d
at 942, 951 & n.26.
For the reasons provided in this opinion, we reverse the ruling of
the district court that the defendants were properly served under South
Carolina's long-arm statute but affirm its conclusion that the district
court has personal jurisdiction over Centricut and Aley. The case is
remanded for further proceedings.
IT IS SO ORDERED
16