Vanderbilt Law Review

Article Title

Constructing Alternative Avenues of Jurisdictional Protection: Bypassing Burnham's Roadblock Via § 1404(a)


A plaintiff from Maine sues an insurance company, incorporated in Maine and having its principal place of business in Maine, on a loss incurred in Maine under a contract negotiated, written, and executed in Maine. The plaintiff files the suit in Alabama to take advantage of its liability law, its statute of limitations, its juries, its rules of evidence, and its posture toward plaintiffs. The plaintiff serves a representative of the insurance company traveling in Alabama en route to an industry convention. For all the reasons the plaintiff seeks a forum in Alabama, the defendant wishes to avoid that forum. The importance of forum and the judicial tools available to ensure that the most appropriate forum adjudicates disputes are the subjects of this Note.

Prior to Burnham v. Superior Court of California,' a defendant could successfully claim that Alabama's assertion of general jurisdiction should be determined under the constitutional fundamental fairness doctrine developed in the International Shoe Co. v. Washington and Rush v. Savchuk' line of cases. The defendant would explain the regulatory nature of jurisdiction. The defendant would ask the trial court to hold that Alabama's assertion of jurisdiction violates the defendant's due process rights because Alabama lacks a regulatory interest in adjudicating the dispute. The defendant would illustrate Maine's regulatory interests in adjudicating the meaning of contracts, setting policies, and protecting parties whose conduct occurred within its borders.

Burnham, with its appeal to tradition and black letter Aristotelian principles, closed this avenue of protection.! It held that a forum's assertion of general jurisdiction based on physical presence unrelated to the cause of action was per se constitutional. Defendants must now seek alternative routes to ensure that the most appropriate forum imposes its regulatory regime on the underlying dispute. In the wake of Burnham, a small handful of scholars predicted that forum non conveniens doctrine and the Federal Transfer Statute, 28 U.S.C. § 1404(a), might become that avenue by allowing trial courts to re- insert fundamental fairness into jurisdiction determinations. This Note illustrates that § 1404(a) accomplishes this task, although judges and the legal community may not always realize that this is occurring.