693 F.2d 511 (5th Cir. 1982), 80-4017, Burstein v. State Bar of California

Docket Nº80-4017.
Citation693 F.2d 511
Party NameCarole Hyman BURSTEIN, Plaintiff-Appellant, v. The STATE BAR OF CALIFORNIA, Defendant-Appellee.
Case DateDecember 14, 1982
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

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693 F.2d 511 (5th Cir. 1982)

Carole Hyman BURSTEIN, Plaintiff-Appellant,


The STATE BAR OF CALIFORNIA, Defendant-Appellee.

No. 80-4017.

United States Court of Appeals, Fifth Circuit

December 14, 1982

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[Copyrighted Material Omitted]

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Carole Hyman Burstein, New Orleans, La., pro se.

Robert M. Sweet, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, WISDOM and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

This is an appeal from an order of the district court, 503 F.Supp. 227, dismissing the suit for lack of personal jurisdiction over the defendant, the State Bar of California (the Bar). Our earlier opinion in the case, Burstein v. State Bar, 659 F.2d 670 (5th Cir.1981), was withdrawn and oral argument was granted on the question of the proper standard by which to evaluate personal jurisdiction under these facts. Burstein v. State Bar, 668 F.2d 795 (5th Cir.1982). We now issue the following opinion in place of the earlier one; we affirm the dismissal.


The plaintiff-appellant, Carole Hyman Burstein, is a Louisiana resident licensed to practice law in that state. She took the California bar examination in July, 1979. When the results were final, the Bar notified her that she had failed both the multiple-choice multistate portion and the essay portion of the test.

Burstein believed that her failure must have resulted from an error in grading, so she wrote to the Bar requesting regrading. The Bar replied that a check of her examination revealed no scoring errors. Burstein then wrote two letters to the Chief Justice of the California Supreme Court, again requesting review of her examination. An assistant to the Chief Justice responded that the court did not intervene in individual grading decisions, and referred her back to the Bar.

Burstein then filed this suit against the Bar 1 in federal district court in Louisiana. Process was served under the Louisiana long-arm statute, La.Rev.Stat.Ann. Sec. 13:3201 (West 1968 & Supp.1982). She alleged violation of her rights to due process and equal protection, giving rise to the cause of action under 42 U.S.C. Sec. 1983 (1976 & Supp. IV 1980) provided for by 28 U.S.C. Sec. 1343 (1976 & Supp. IV 1980). She also alleged diversity claims of negligence and breach of contract.

The gravamen of her complaint was that she believed that the Educational Testing Service, which graded the multistate examination, had assigned her someone else's score through computer error. Further, she alleged that the multistate score was given to the essay graders before they read her paper, and the fact that the multistate score was so low led them to fail her on the essay portion either without reading her paper or after only a cursory review.

In response, the Bar alleged a variety of grounds for dismissal, of which the only one relevant here is lack of personal jurisdiction. 2 The court ordered that discovery be restricted to facts relevant to personal and subject-matter jurisdiction; Burstein served eight interrogatories on the Bar. It answered four, but refused to

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answer the others. The court declined to compel discovery and granted the Bar's motion to dismiss for lack of personal jurisdiction.

Burstein raises several contentions here. We will discuss her arguments that there was personal jurisdiction and, alternatively, that dismissal was premature because of the denial of discovery. Because we accept neither of these arguments, we affirm the dismissal; it is therefore unnecessary to proceed to Burstein's request for summary judgment in her favor or for an order limiting the Bar's other procedural defenses.


The starting point for our inquiry is the realization that a federal court may only exercise personal jurisdiction if it is authorized to do so by law and such exercise does not violate the Constitution. In a federal question case in federal court, the relevant constitutional provision is the due process clause of the fifth amendment, a provision whose application in this context is not well defined. 3 Fortunately, we need not reach that problem, since we find that personal jurisdiction in this case is not authorized by the applicable law, i.e., section 1983 and Fed.R.Civ.P. 4(e).

In order to present our analysis clearly, we first undertake an explication of the provisions of rule 4(e). We then explain and harmonize the relevant Fifth Circuit cases; finally, we apply the standard thus developed to the facts of this case.

A. Rule 4(e).

Fed.R.Civ.P. 4 provides for service of process in cases brought in federal court. While by its terms rule 4(d) might well apply to this case, it is clear that rule 4(e) is designed for use to obtain service on parties not resident within the forum state, and by negative implication it excludes rule 4(d). See 2 J. Moore, J. Lucas, H. Fink, & C. Thompson, Moore's Federal Practice paragraphs 4.32, 4.41-1 (1982). We thus direct our attention solely to rule 4(e), which has three provisions relevant to our analysis.

The first part of the first sentence of rule 4(e) applies "[w]henever a statute of the United States ... provides for service of a summons ... upon a party not an inhabitant of or found within the state in which the district court is held ..." and the federal statute or a court order thereunder prescribes a manner of service. Jurisdiction is then asserted by the federal statute and service is made "under the circumstances and in the manner prescribed by the statute or order ...."

The second part of the first sentence applies when a federal statute provides for service, thus asserting jurisdiction, but does not prescribe the manner of service. In that case, "service may be made ... in a manner stated in this rule," i.e., rule 4. 4

Neither one of these provisions applies to this case, because neither section 1983 nor section 1343 even "provides" for service. It is thus necessary to examine the second sentence of rule 4(e), which states:

Whenever a statute ... of the state in which the district court is held provides ... for service of a summons ... upon a party not an inhabitant of or found within the state, ... service may ... be made under the circumstances and in the manner prescribed in the statute....

The clear import of the "under the circumstances" language, at least where the assertion of jurisdiction and not just the service of process depends on the state statute, is that a federal court, even in a federal question case, can use a state long-arm statute only to reach those parties whom a court of the state could also reach under it.

We note that this is the same conclusion reached by a leading commentator:

On balance, then, it would seem that state law always should govern amenability when a state statute is used pursuant

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to rule 4(e). Although the opposite result has some appeal in that it permits effectuation of federal interests in a broader range of suits, it is inconsistent with the apparent intent of the draftsmen of rule 4(e) to use state provisions for service in order to permit the federal courts in a state to hear those cases that could be brought in the state's own courts when a basis for asserting federal subject matter jurisdiction exists.

4 C. Wright & A. Miller, Federal Practice & Procedure, Sec. 1075 at 313 (1969). 5

B. Fifth Circuit Cases.

The leading Fifth Circuit cases on personal jurisdiction in federal question cases are all distinguishable because they do not involve both a federal statute which does not assert jurisdiction and service under the second sentence of rule 4(e). None of them is inconsistent with the result here.

The earliest of these cases is Lone Star Package Car Co. v. Baltimore & Ohio Railroad, 212 F.2d 147 (5th Cir.1954). Lone Star, a suit filed in a district court in Texas, involved both a diversity claim and a claim under the Carmack Amendment, 49 U.S.C. Sec. 20. Lone Star filed a third-party complaint against the B & O Railroad, and service was made on the B & O's agents in Texas. The Fifth Circuit upheld personal jurisdiction over the B & O, with a broad statement that in a federal question case the court was not bound by limitations on state courts, there by the requirement that the B & O be "doing business" in Texas. The Lone Star court stated that "insofar as cases are governed by federal law, the question of whether they are to be tried in one locality or another is now to be tested ... simply by basic principles of fairness. International Shoe Co. v. State of Washington, 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95]...." 212 F.2d at 155.

The crucial distinction between Lone Star and this case is that Lone Star involved in-state service, and thus came under rule 4(d) rather than 4(e). 6 The Lone Star court held service proper under either rule 4(d)(3), which is completely independent of state law, or rule 4(d)(7), which only requires that service be made "in the manner prescribed by the law of the state in which the district court is held...." Rule 4(d)(7) does not have the "under the circumstances" language of the second sentence of rule 4(e), which is the language that we hold applies the limitations on the state court to the federal court. Thus Lone Star neither controls nor is inconsistent with this case.

Only last year, the Fifth Circuit decided Federal Trade Commission v. Jim Walter Corp., 651 F.2d 251 (5th Cir.1981). In that case, suit was filed in the Northern District of Texas and process was served on the defendant in Florida, so rule 4(e) did apply. The cause of action, however, was under section 9 of the Federal Trade Commission Act, 15 U.S.C. Sec. 49 (1976), which has been interpreted as authorizing nationwide service of process. 7 Thus, as the Jim Walter Corp. court noted, the relevant portion of rule 4(e) was...

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