E.D. Virginia Notes Split Re the Correct Test for Determining Minimum Contacts Necessary to Confer Personal Jurisdiction

Per Jones v. Boto Co., Ltd., --- F.Supp.2d ----, 2007 WL 2172810 ( E.D.Va. Jul 17, 2007) (NO. 4:07 CV 45):

Circuits have split on the issue of which Asahi opinion sets forth the correct test for determining whether a defendant has the minimum contacts necessary to confer jurisdiction. See Lesnick, 35 F.3d at 946 n. 1 (listing cases). Although the Fourth Circuit has rejected Justice Brennan's stream of commerce theory of personal jurisdiction, it has not explicitly adopted the approach set forth by Justice O'Connor or the approach suggested by Justice Stevens. See id. at 945 ("To permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a person must expect that to happen destroys the notion of individual sovereignties inherent in our system of federalism."); Federal Ins. Co. v. Lake Shore Inc., 886 F.2d 654, 660 (4th Cir.1989) (suggesting that the " 'stream of commerce' theory of personal jurisdiction" might apply when the additional conduct listed by Justice O'Connor is present, but noting that it was not deciding whether it would adopt the approach suggested by Justice Stevens in an appropriate case). Instead, based on its analysis of Asahi and other Supreme Court precedent, the Fourth Circuit has explained that to determine whether a defendant has the minimum contacts with the forum state necessary to confer jurisdiction, a court should determine whether the defendant "has created a substantial connection to the forum state by action purposefully directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state." Lesnick, 35 F.3d at 945-46.