San Diego Law Review


Lee Goldman

Library of Congress Authority File


Document Type



...This Article argues that the critical element of Calder’s three-part test is the finding of intentional conduct. It should not be enough that the defendant intended to engage in the conduct that is later found to be tortious. Rather, the defendant’s intentional conduct must have been willfully wrongful. This should require some element of bad faith on the part of the defendant. Where willful misconduct affects a known resident of the forum, the defendant can reasonably foresee being haled into the forum and jurisdiction would not be unfair. The defendant should therefore be found to have expressly aimed its conduct at the forum. On the other hand, where conduct is not willful, the narrower targeting the forum test should apply, not as an application of Calder, but as an application of traditional jurisdictional analysis requiring purposeful availment. On a motion to dismiss for lack of personal jurisdiction, willfulness should be decided under a preliminary injunction type standard. That is, the court should require plaintiff to show that she has a likelihood of success in proving willfulness. If that standard is met, the court should uphold personal jurisdiction in the plaintiff’s home state as long as the defendant has knowledge of the plaintiff’s primary residence and plaintiff is proximately harmed in that state. Part II of this Article discusses basic personal jurisdiction principles. Part III describes the Court’s decision in Calder v. Jones. Part IV addresses lower court decisions interpreting Calder, highlighting the conflicts among and within Circuit Courts of Appeals concerning Calder’s “targeting the forum” requirement. Part V reviews Walden v. Fiore and explains why the case should have limited significance. Part VI presents the recommended approach to applying Calder’s “effects test” and explains why a defendant who acts in bad faith, with knowledge of the plaintiff’s residence, should be considered to have targeted the plaintiff’s home state. This part also discusses the proper standard of review of motions to dismiss for lack of personal jurisdiction in Calder-based cases. Bad faith or willfulness should not be based solely on allegations in the pleading. Rather, the plaintiff should be required to demonstrate “a likelihood of success” in proving that the defendant’s conduct was willful or in bad faith. Part VI concludes by briefly addressing the remaining requirements of Calder’s “effects test,” explaining why the test should only justify jurisdiction in the plaintiff’s home state when the defendant has knowledge of the plaintiff’s primary residence and plaintiff is proximately harmed in that state.

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