Personal jurisdiction is defined as a “‘court’s power to bring a person into its adjudicative process.’” Foster v Wolkowitz, 486 Mich 356, 367 n 22 (2010), quoting Black’s Law Dictionary (8th ed). Jurisdiction over a person is distinct from jurisdiction over a case (subject-matter jurisdiction). Foster, 486 Mich at 367. “[A] party may stipulate to, waive, or implicitly consent to personal jurisdiction.” People v Lown, 488 Mich 242, 268 (2011). See also Lease Acceptance Corp v Adams, 272 Mich App 209, 229 (2006) (quotation marks and citation omitted) (“[c]hallenges to personal jurisdiction may be waived by either express or implied consent”). Lack of personal jurisdiction is waived if it is not raised in the responsive pleading or first motion, whichever is filed first. MCR 2.111(F)(2); MCR 2.116(D)(1).
A.General Personal Jurisdiction
“The exercise of general jurisdiction is possible when a defendant’s contacts with the forum state are of such nature and quality as to enable a court to adjudicate an action against the defendant, even when the claim at issue does not arise out of the contacts with the forum state.” Electrolines, Inc v Prudential Assurance Co, Ltd, 260 Mich App 144, 166 (2003), citing Oberlies v Searchmont Resort, Inc, 246 Mich App 424, 427 (2001).
The following list contains authority regarding personal jurisdiction over individuals and entities:
•Individuals1 — MCL 600.701.
•Presence in the state at time of service. MCL 600.701(1).
•Domicile in the state at time of service. MCL 600.701(2).
•Consent, subject to MCL 600.745. MCL 600.701(3). MCL 600.745 addresses whether an agreement establishing jurisdiction will be applied. See also Lease Acceptance Corp v Adams, 272 Mich App 209 (2006); Turcheck v Amerifund Fin, Inc, 272 Mich App 341 (2006). See Section 2.11(A)(1) for more information on forum-selection clauses.
•Corporations2 — MCL 600.711.
•Incorporation or formation under Michigan law. MCL 600.711(1).
•Consent, subject to MCL 600.745. MCL 600.711(2). MCL 600.745 addresses whether an agreement establishing jurisdiction will be applied. See also Lease Acceptance Corp, 272 Mich App at 209; Turcheck, 272 Mich App at 341. See Section 2.11(A)(1) for more information on forum-selection clauses.
•Carrying on “a continuous and systematic part of its general business within the state.” MCL 600.711(3); Electrolines, Inc, 260 Mich App at 166-167; Glenn v TPI Petroleum, Inc, 305 Mich App 698, 707-709 (2014).
•Partnerships and limited partnerships3 — MCL 600.721.
•Partnership associations and unincorporated voluntary associations4 — MCL 600.731.
1.Forum Selection and Choice of Law Clauses
Generally, parties may create contractual forum selection clauses. Lease Acceptance Corp v Adams, 272 Mich App 209, 219 (2006). Subject to certain conditions, Michigan courts will enforce an express forum selection clause where the parties agreed in writing to bring an action in Michigan and “the agreement provides the only basis for the exercise of jurisdiction.” MCL 600.745(2).5 The conditions listed in MCL 600.745(2) are:
“(a) The court has power under the law of this state to entertain the action.
(b) This state is a reasonably convenient place for the trial of the action.
(c) The agreement as to the place of the action is not obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means.
(d) The defendant is served with process as provided by court rules.”
Subject to certain exceptions, Michigan courts must stay or dismiss an action that was brought in Michigan where “the parties agreed in writing that an action . . . shall be brought only in another state[.]” MCL 600.745(3). The exceptions listed in MCL 600.745(3) are:
“(a) The court is required by statute to entertain the action.
(b) The plaintiff cannot secure effective relief in the other state for reasons other than delay in bringing the action.
(c) The other state would be a substantially less convenient place for the trial of the action than this state.
(d) The agreement as to the place of the action is obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means.
(e) It would for some other reason be unfair or unreasonable to enforce the agreement.”
“[W]hen presented with a contractual forum-selection clause, a court’s first step is to determine the threshold issue whether a party is bound by a contract, and, accordingly, any forum selection and choice-of-law provision in the contract.” Barshaw v Allegheny Performance Plastics, LLC, 334 Mich App 741, 748 (2020) (quotation marks and citation omitted). “A contractual forum selection clause, though otherwise valid, may not be enforced against one not bound by the contract.” Id. (quotation marks and citation omitted).
“[T]he analysis becomes more complicated when . . . a single agreement contains both a forum-selection clause and a choice-of-law provision.” Barshaw, 334 Mich App at 749 (quotation marks and citation omitted). “Addressing the question of whether a contractual forum-selection clause should be governed by the law of the state where the action was filed or, in the alternative, the law selected by the parties in the choice-of-law provision, . . . this question does not concern the underlying merits of the lawsuit and will only affect where the action is litigated. In this respect, dismissing an action under a contractual forum-selection clause is analogous to dismissing an action under the doctrine of forum non conveniens.” Id. at 751. “Dismissal for forum non conveniens reflects a court’s assessment of a range of considerations, most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality.” Id. at 753.
“[T]he question to be answered by a court considering whether to dismiss an action pursuant to a contractual forum-selection clause is similar to the question facing a court considering whether to dismiss an action under the doctrine of forum non conveniens; namely, whether there is a sufficient reason that the action should be litigated in another forum rather than the one in which the plaintiff filed the action. The difference between the two situations is that a dismissal on forum non conveniens grounds is based on concepts related to convenience, the ends of justice, court administration, and other relevant considerations, whereas a dismissal pursuant to a forum-selection clause is based on honoring the contractual agreement reached between the parties[.]” Barshaw, 334 Mich App at 753-754 (citations omitted). “[A] forum selection clause can be understood as the embodiment of the parties’ negotiation for the most convenient or best forum.” Id. at 755.
“Because of the similarities between the operation of a forum-selection clause and the doctrine of forum non conveniens in both effect and underlying purpose, . . . analyzing the validity and effect of a forum-selection clause is also a threshold, nonmerits issue that the Michigan court in which the action has been filed may address first before considering other threshold issues.” Barshaw, 334 Mich App at 755. “[A] forum-selection clause may [generally] be considered separately from any choice-of-law provision that may also be in the contract. In such cases, the Michigan court in which the action has been filed shall apply Michigan law in determining the effect of the forum-selection clause.” Id. (indicating that factors not germane to this case may be present that could alter this analysis).
“MCL 600.745(3) plainly indicates that when an action is filed in a Michigan court, the court is required to consider dismissing or staying the action if the parties agreed in writing that any such action was required to be brought only in another state. Thus, under the statute, there must be an agreement to litigate exclusively in another state before a Michigan court is required to dismiss the action on the basis of a forum-selection clause.” Barshaw, 334 Mich App at 757-758 (absent exclusivity language, the forum-selection clause is considered permissive). In Barshaw, because there was nothing in the forum-selection clause “evidencing an intent by the parties to forgo the personal jurisdiction of all forums other than those within the state of Pennsylvania,” the Court could not “infer from the language of the clause that the parties agreed that Pennsylvania would be the sole forum in which they could litigate disputes to the exclusion of all other forums.” Id. at 760-761 (concluding the trial court “was not required to dismiss [the] case under MCL 600.745(3)” because the forum-selection clause at issue was “permissive under Michigan law,” and the clause “provided that Pennsylvania was one potential appropriate forum without excluding the use of other appropriate forums”).
B.Limited Personal Jurisdiction
A long-arm statute provides “for jurisdiction over a nonresident defendant who has had contacts with the territory where the statute is in effect.” Black’s Law Dictionary (8th ed).6
The following list contains authority regarding limited personal jurisdiction over individuals and entities.
•Individuals7 — MCL 600.705, which states, “[A]ny of the following relationships between an individual or his agent and the state . . . enable a court . . . to exercise limited personal jurisdiction over the individual and . . . to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships:
(1) The transaction of any[8] business within the state.
(2) The doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort.[9]
(3) The ownership, use, or possession of real or tangible personal property situated within the state;
(4) Contracting to insure a person, property or risk located in this state at the time of contracting.
(5) Entering into a contract for services to be rendered or for materials to be furnished in the state by the defendant.[10]
(6) Acting as a director, manager, trustee, or other officer of a corporation incorporated under the laws of, or having its principal place of business within this state.
(7) Maintaining a domicile in this state while subject to a marital or family relationship which is the basis of the claim for divorce, alimony, separate maintenance, property settlement, child support, or child custody.” MCL 600.705(1)-(7).
•Corporations11 — MCL 600.715.
•Partnerships and limited partnerships12 — MCL 600.725.
•Partnership associations and unincorporated voluntary associations13 — MCL 600.735.
Due process limits the power of a state court to render a valid personal judgment against a nonresident defendant. Shaffer v Heitner, 433 US 186, 204 (1977); Kulko v Superior Court of California, 436 US 84, 91 (1978). Due process requirements must be met in addition to satisfying the requirements of the Michigan long-arm statutes. See Oberlies v Searchmont Resort, Inc, 246 Mich App 424, 432 (2001). There must be both:
•Adequate notice that suit has been brought. Mullane v Central Hanover Bank & Trust Co, 339 US 306, 313 (1950); Krueger v Williams, 410 Mich 144, 158 (1981), and
•“Minimum contacts” between the state and the defendant. Int’l Shoe Co v Washington, 326 US 310, 316 (1945); Jeffrey v Rapid American Corp, 448 Mich 178, 185-186 (1995).
The Michigan Supreme Court identified a three-part test for determining minimum contacts in Jeffrey, 448 Mich at 186:
(1) The defendant must purposefully avail himself of the privilege of acting in the forum state;
(2) The cause of action must arise from the defendant’s activities in the forum state; and
(3) The defendant’s acts must have a substantial enough connection with the forum state to make the exercise of jurisdiction reasonable.14
“[Michigan’s] ‘long-arm’ statutes extend jurisdiction to the maximum limits permitted by due process.” Northern Ins Co of New York v B Elliott, Ltd, 117 Mich App 308, 316 (1982), citing Sifers v Horen, 385 Mich 195, 199 (1971).
“The plaintiff bears the burden of establishing [personal] jurisdiction over the defendant[.]” Yoost v Caspari, 295 Mich App 209, 221 (2012) (citations and quotation marks omitted). To succeed against a pretrial motion to dismiss for lack of personal jurisdiction, a plaintiff need only make a prima facie showing. Id. “The plaintiff’s complaint must be accepted as true unless specifically contradicted by affidavits or other evidence submitted by the parties.” Id. “[W]hen allegations in the pleadings are contradicted by documentary evidence, the plaintiff . . . must produce admissible evidence of his or her prima facie case establishing jurisdiction.” Id. “‘To be adequate, a plaintiff’s circumstantial proof must facilitate reasonable inferences . . ., not mere speculation.’” Id. at 228, quoting Skinner v Square D Co, 445 Mich 153, 164 (1994).
Where a party’s only contact with Michigan is through its advertisements, the advertising party’s conduct may fall within Michigan’s long-arm statute, but it may not be enough to provide personal jurisdiction over the advertising party. Oberlies, 246 Mich App at 437-439. In Oberlies, the plaintiff (a Michigan resident) was injured at the defendant’s facility (located in Canada). Id. at 426. The plaintiff argued that because the defendant directed its advertisements at Michigan residents, Michigan could obtain personal jurisdiction over the defendant for purposes of a negligence suit. Id. The Michigan Court of Appeals disagreed and stated:
“[I]n order for a foreign defendant to be compelled to defend a suit brought in Michigan where the defendant’s contacts with Michigan are limited solely to advertising aimed at Michigan residents, the defendant’s instate advertising activities must, in a natural and continuous sequence, have caused the alleged injuries forming the basis of the plaintiff’s cause of action.” Oberlies, 246 Mich App at 437.
When personal jurisdiction is authorized by MCL 600.701(3) and MCL 600.745, and the parties consent to personal jurisdiction in Michigan via a valid forum selection clause, enforcement of the forum selection clause “does not violate due process as long as a party will not be deprived of its day in court.” Lease Acceptance Corp v Adams, 272 Mich App 209, 229 (2006).
Where personal jurisdiction is conferred pursuant to a forum selection clause, and where the inconvenience of litigating in another forum is apparent at the time of contracting, that inconvenience is part of the bargain negotiated by the parties and will not render the forum selection clause unenforceable. Turcheck v Amerifund Fin, Inc, 272 Mich App 341, 350 (2006).
“Pursuant to the Uniform Interstate Family Support Act’s catch-all provision regarding personal jurisdiction, a forum state may exercise personal jurisdiction over petitions for enforcement of out-of-state support claims, . . . if there is any other basis consistent with the constitutions of [Michigan] and the United States for the exercise of personal jurisdiction.” Hilyard v Johnston, ___ Mich ___, ___ (2023) (cleaned up). Where “the statute includes a catchall provision that only requires a court to consider constitutional due process, the two inquiries collapse into a single inquiry regarding minimum contacts.” Id. at ___. The Hilyard Court concluded that “personal jurisdiction may exist regardless of whether the respondent-father’s actions satisfy any provision of MCL 600.705,” holding that “the circuit court was obligated under MCL 552.2201(1)(h) to analyze whether due process is satisfied here by determining whether sufficient minimum contacts exist between a nonresident respondent and the state to support due process requirements of limited personal jurisdiction.” Hilyard, ___ Mich at ___ (cleaned up).
Whether a court has personal jurisdiction over a party is a question of law that is reviewed de novo. Oberlies v Searchmont Resort, Inc, 246 Mich App 424, 426 (2001).
1 See the Michigan Judicial Institute’s Personal Jurisdiction of Individuals Flowchart.
2 See the Michigan Judicial Institute’s Personal Jurisdiction of Corporations Flowchart.
3 See the Michigan Judicial Institute’s Personal Jurisdiction of Partnerships or Limited Partnerships Flowchart.
4 See the Michigan Judicial Institute’s Personal Jurisdiction of Partnership Associations or Unincorporated Voluntary Associations Flowchart.
5 Similarly, subject to certain conditions, Michigan courts will enforce a contractual choice of law provision. Chrysler Corp v Skyline Indus Servs Inc, 448 Mich 113, 126-127 (1995).
6 See Section 2.12(C) for a discussion of constitutional limitations on jurisdiction.
7 See the Michigan Judicial Institute’s Personal Jurisdiction of Individuals Flowchart.
8 “The word ‘any’ means just what is says. It includes ‘each’ and ‘every.’” Sifers v Horen, 385 Mich 195, 199 n 2 (1971).
9 “[E]ither the tortious conduct or the injury must occur in Michigan.” WH Froh, Inc v Domanski, 252 Mich App 220, 229 (2002).
10 “F.O.B. shipping terms are not dispositive of whether the defendant entered into a contract for materials to be furnished in Michigan.” Starbrite Distrib, Inc v Excelda Mfg Co, 454 Mich 302, 304 (1997).
11 See the Michigan Judicial Institute’s Personal Jurisdiction of Corporations Flowchart.
12 See the Michigan Judicial Institute’s Personal Jurisdiction of Partnerships or Limited Partnerships Flowchart.
13 See the Michigan Judicial Institute’s Personal Jurisdiction of Partnership Associations or Unincorporated Voluntary Associations Flowchart.
14 See the Michigan Judicial Institute’s Personal Jurisdiction Flowcharts regarding Individuals, Corporations, Partnerships or Limited Partnerships, and Partnership Associations or Unincorporated Voluntary Associations.