DELAWARE’S LONG ARM STATUTE GIVES A DELAWARE COURT PERSONAL JURISDICTION OVER NONRESIDENTS
I was recently contacted by a client who’s been sued in a Delaware Court even though he lives in another country and is not even a U.S. citizen. The first question that comes to mind is whether the Delaware Court can actually exercise personal jurisdiction over this nonresident. The answer to this question requires an explanation of Delaware’s Long Arm Statute.
The Delaware Courts apply a two-prong test in determining if personal jurisdiction exists over a nonresident. The first prong is statutory, where the Court must decide whether Delaware’s Long Arm Statute applies. The second prong is constitutional, and the Court must decide whether subjecting the nonresident to jurisdiction in Delaware violates the Due Process Clause of The Fourteenth Amendment (this is commonly referred to as the so-called “minium contacts requirement.”
To satisfy the first “prong” of the test relating to the Long Arm Statute, the plaintiff must show that the Court has either specific jurisdiction or general jurisdiction.
SPECIFIC JURISDICTION
For the Court to have specific jurisdiction, the plaintiff must show that (1) the defendant engaged in conduct that falls within at least one of the activities described below, and (2) that the plaintiff’s cause of action arises from defendant’s acts or omissions that took place in Delaware. The activities in question are:
(A) transacted any business or performed any character of work or service in Delaware;
(B) contracted to supply services or things in Delaware
(C) was present in Delaware when tortious acts or omissions occurred;
(D) had an interest in, used or possessed real property in Delaware; or
(E) contracted to insure or act as surety for, or on, any person, property, risk, contract, obligation or agreement located, executed or to be performed within Delaware.
GENERAL JURISDICTION
For the Court to exercise general jurisdiction, the plaintiff must show that:
(A) defendant engaged in tortious conduct outside of Delaware which caused injury in Delaware, and that defendant regularly does business or solicits business in Delaware;
(B) engages in any other persistent course of conduct in Delaware; or
(C) derives substantial revenues from the services or products used or consumed in Delaware.
Even if the plaintiff is able to establish that the Long Arm Statute applies to the defendant, that doesn’t end the inquiry because the Court must then determine whether exercising its jurisdiction over the defendant would violate the minimum contacts requirements of the Due Process Clause of the Fourteenth Amendment.
In a future article, I’ll discuss the minimum contacts requirements.
