Lack of personal jurisdiction: how to attack a complaint under 12(b)(2)

A [motion](/insights/glossary/motion) to dismiss for lack of personal [jurisdiction](/insights/glossary/jurisdiction) is one of the most powerful threshold defenses a non-resident defendant can raise. If it works, the case ends in the forum the plaintiff chose, and the plaintiff has to refile somewhere the defendant actually does have constitutionally cognizable contacts. That refiling cost, plus the strategic disruption of starting over, is why a serious 12(b)(2) motion often produces a settlement before the court ever rules.

This guide walks through the constitutional framework, the two flavors of personal jurisdiction (general and specific), the Supreme Court cases that narrowed both doctrines over the last fifteen years, and the brief-writing moves that turn a personal-jurisdiction defense into an actual dismissal. It also addresses stream-of-commerce doctrine, the use of affidavits and jurisdictional discovery, and the traps that sink a 12(b)(2) motion.

The constitutional baseline

Personal jurisdiction is constrained by the Due Process Clause of the Fourteenth Amendment. The foundational case is International Shoe Co. v. Washington, 326 U.S. 310 (1945). The Court held that a state may exercise jurisdiction over a non-resident defendant only when the defendant has "certain minimum contacts" with the forum "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Id. at 316.

That formulation has held up for eighty years. Every modern personal-jurisdiction case is, at bottom, a minimum contacts analysis paired with a fair play analysis. The minimum contacts inquiry asks whether the defendant has purposefully directed activity toward the forum. The fair play inquiry asks whether requiring the defendant to litigate in the forum would be reasonable in light of the burden on the defendant, the forum's interest, the plaintiff's interest, the interstate judicial system's interest, and the shared interest of the several states in furthering substantive policies.

Purposeful availment is the key concept on the contacts side. The defendant must have "purposefully avail[ed] 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). Unilateral activity by the plaintiff or a third party in the forum does not count. Random, fortuitous, or attenuated contacts do not count. The defendant's own deliberate choice to engage the forum is what matters.

Specific versus general jurisdiction

Personal jurisdiction comes in two forms. Specific jurisdiction is claim-specific: the suit arises out of or relates to the defendant's contacts with the forum. General jurisdiction is all-purpose: the defendant is so present in the forum that it can be sued there on any claim, including claims with no connection to the forum.

The distinction matters enormously after Daimler AG v. Bauman, 571 U.S. 117 (2014). The Court held that general jurisdiction over a corporation is appropriate only where the corporation is "essentially at home" in the forum, which for a corporate defendant ordinarily means the place of incorporation and the principal place of business. Id. at 137-39. The "substantial, continuous, and systematic" contacts theory that lower courts had used to assert general jurisdiction over multinational defendants in any forum where they did significant business is no longer good law.

Daimler built on Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011), which articulated the at-home formulation in a case involving foreign subsidiaries of an American parent. The Court held that the subsidiaries' sales of tires that ended up in North Carolina did not make them "at home" there, and general jurisdiction was therefore unavailable. Id. at 919.

The practical consequence: general jurisdiction is now narrowly confined. For defendants who are neither incorporated nor headquartered in the forum, the only viable jurisdictional theory is specific jurisdiction. Defense briefs should lead with Daimler whenever the plaintiff invokes general jurisdiction against a non-domiciliary corporation.

The Bristol-Myers Squibb rule

For specific jurisdiction, the Supreme Court tightened the standard in Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017). The Court held that specific jurisdiction requires a connection between the forum and the specific claims at issue: "the suit must arise out of or relate to the defendant's contacts with the forum." Id. at 262. It is not enough that the defendant has contacts with the forum unrelated to the claims, and it is not enough that other plaintiffs (in a mass tort, for example) have claims that do connect to the forum.

Bristol-Myers effectively prohibited the practice of joining out-of-state plaintiffs to a forum lawsuit when their claims had no forum nexus. The defense brief facing a multi-plaintiff complaint should ask, for each plaintiff, whether the plaintiff's own claim arises from or relates to the defendant's forum contacts. If not, that plaintiff has to be dismissed for lack of personal jurisdiction.

The "arise out of or relate to" formulation was further parsed in Ford Motor Co. v. Montana Eighth Judicial District Court, 592 U.S. 351 (2021). The Court rejected the argument that specific jurisdiction requires strict causation between the defendant's contacts and the plaintiff's claim. A "relate to" connection can satisfy the standard even without proximate cause, but the Court emphasized that "relate to" still imposes real limits and is not satisfied by the mere fact that the defendant does business in the forum. Id. at 362.

Stream of commerce and the McIntyre / Asahi split

A long-standing controversy concerns whether placing a product into the stream of commerce, knowing it may reach a particular forum, is enough to constitute purposeful availment. The Supreme Court has divided on this twice.

In Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102 (1987), the Court fractured. Justice O'Connor's plurality opinion required "something more" than mere placement into the stream, such as designing the product for the forum, advertising in the forum, or marketing through a forum distributor. Id. at 112. Justice Brennan's competing opinion took the broader view that knowing the product would arrive in the forum was enough.

J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011), was supposed to resolve the split but did not. Justice Kennedy's plurality opinion reaffirmed the narrower stream-of-commerce-plus view: the defendant must have targeted the forum, not merely the United States generally. Id. at 882. Justice Breyer's concurrence agreed with the result on narrower grounds, declining to adopt a broad rule. The lower courts therefore remain divided. Some circuits follow the Kennedy plurality; others apply a more plaintiff-friendly version of Brennan's Asahi approach.

When briefing a stream-of-commerce motion, identify the controlling circuit law explicitly. Lead with McIntyre's plurality if the circuit follows it. Otherwise, lead with Asahi and argue under the most demanding articulation of stream-of-commerce-plus, while acknowledging the split. Either way, the brief must show that the defendant did not target the forum, did not maintain a forum distributor or sales agent, and did not advertise into the forum.

How to brief the motion

A well-briefed 12(b)(2) motion has a distinctive shape because the burdens shift in ways most motion practice does not.

Affidavits and the burden of proof

When personal jurisdiction is challenged, the plaintiff has the burden of establishing it. If the court decides the motion on the pleadings and affidavits without a hearing, the plaintiff must make a prima facie showing of jurisdiction; disputed facts are resolved in the plaintiff's favor. If the court holds an evidentiary hearing, the plaintiff must prove jurisdiction by a preponderance.

That structure makes affidavits useful for the defense. Unlike a 12(b)(6) motion, a 12(b)(2) motion is not confined to the four corners of the complaint. The defendant can file a declaration establishing that it is not incorporated in the forum, has no principal place of business there, owns no property there, has no employees there, and engaged in no forum-directed activity that gave rise to the claim. The plaintiff must then come forward with countering evidence or live with the defense affidavits.

Introduction

State the relief sought and the structural reason for it: the defendant is a non-resident with no constitutionally cognizable contacts with the forum that give rise to or relate to the claim. Identify whether the plaintiff has invoked general or specific jurisdiction (or both).

Legal standard

Cover the constitutional framework, International Shoe minimum contacts, the Daimler at-home rule for general jurisdiction, and the Bristol-Myers claim-nexus rule for specific jurisdiction. If stream-of-commerce is in play, identify the controlling circuit rule.

Argument

Address general jurisdiction first (briefly, if it is obviously inapplicable), then specific jurisdiction in detail. For specific jurisdiction:

1. Identify each forum contact the plaintiff alleges or might allege.
2. Explain why the contact is not purposeful availment under Hanson, Asahi, and McIntyre.
3. Explain why even the contacts that do exist do not give rise to or relate to the claims at issue, citing Bristol-Myers and Ford.
4. Close with a brief fair-play analysis showing the unreasonableness of forcing the defendant to litigate in the forum.

Conclusion

Ask for dismissal without prejudice. Personal jurisdiction dismissals are not merits adjudications, so they almost always allow refiling in a forum that does have jurisdiction.

Jurisdictional discovery objections

Plaintiffs often respond to a 12(b)(2) motion by asking for jurisdictional discovery. The defense should be prepared to oppose. The standard for granting jurisdictional discovery varies by circuit, but the common thread is that the plaintiff must make some threshold showing that discovery would actually produce jurisdiction-establishing facts. Pure fishing expeditions are not authorized.

Two arguments are particularly effective in opposition. First, the plaintiff has not identified specific forum contacts that discovery would illuminate; the request is generic. Second, the contacts the plaintiff has already alleged, even if proven up, are insufficient as a matter of law under Daimler or Bristol-Myers; further discovery cannot change the legal result.

When jurisdictional discovery is granted, it should be tightly cabined: targeted interrogatories about specific alleged contacts, not broad merits discovery dressed up as jurisdictional. The defense brief should propose specific limitations if the court appears inclined to allow discovery.

What sinks a 12(b)(2) motion

Three failures recur.

Conflating general and specific jurisdiction. A motion that argues "the defendant lacks contacts with the forum" without distinguishing the two doctrines invites the court to find some contacts and conclude they suffice for one theory or the other. Treat them separately. Concede or contest each.

Ignoring claim nexus. Some motions argue contacts in the abstract and forget to ask whether the contacts gave rise to or relate to the plaintiff's specific claims. Bristol-Myers requires that analysis, and forgetting it gives the plaintiff a clean win on a contact the defendant could have neutralized.

Filing affidavits that overreach. A defense declaration that says "the defendant has never done business in the forum" invites the plaintiff to find one transaction and impeach the affiant. Affidavits should be specific, narrowly worded, and carefully reviewed. Better to say "the defendant has no employees, offices, or registered agent in the forum and did not solicit the transactions at issue from forum residents" than to make sweeping negatives.

The bottom line

A 12(b)(2) motion succeeds when the brief: distinguishes general from specific jurisdiction, applies Daimler to foreclose any home-forum theory for non-resident corporations, requires a claim-by-claim and plaintiff-by-plaintiff Bristol-Myers nexus showing for any specific-jurisdiction theory, addresses the controlling circuit's stream-of-commerce rule, and uses narrow affidavits to put the burden back on the plaintiff. It fails when the brief argues contacts in the abstract, leaves stream-of-commerce doctrine unaddressed in a product-liability case, or attaches sweeping affidavits that are easy to pick apart.

For plaintiffs facing a personal-jurisdiction motion, the response template is to identify specific forum-directed conduct by the defendant that gave rise to the claims, plead supporting facts under the controlling circuit law, and request narrowly tailored jurisdictional discovery if needed. Personal jurisdiction has tightened considerably since Daimler, and the plaintiff who selects a forum without thinking carefully about contacts is increasingly vulnerable at the threshold.