Legal Memorandum: Waiver of Personal Jurisdiction Requirements

Issue: In Delaware, does express consent to jurisdiction by a defendant waive the requirements of personal jurisdiction?

“[P]arties to a contract may agree in advance to submit to the jurisdiction of a given court.”  National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 316 (1964).  Unlike subject matter jurisdiction, which addresses a court’s power to act at all, personal jurisdiction may be waived.  Burger King Corp. v. Rudzewicz, 471 U.S 462, 472 n.14 (1985).  The requirement of personal jurisdiction “is based on the individual liberty interests protected by the due process clause and thus can be waived by any legal arrangement that demonstrates a party’s expressed or implied consent to that jurisdiction.”  Chrysler Capital Corp. v. Woehling, 663 F. Supp. 478, 481 (D. Del. 1987) (citing Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982)).

Delaware’s supreme court has held that due process is satisfied by express consent, since express consent constitutes a waiver of all other  personal jurisdiction requirements.  Sternberg v. O’Neil, 550 A.2d 1105, 1112 (Del. 1988).

We are of the opinion that express consent is a valid basis for the exercise of general jurisdiction in the absence of any other basis for the exercise of jurisdiction, i.e., “minimum contacts”.  In particular, we are of the view that after International Shoe, a state still has power to exercise general judicial jurisdiction over a foreign corporation which has expressly consented to the exercise of such jurisdiction.

Id. at 1111.  See also Outokumpu Eng’g Enters., Inc. v. Kavaerner […]