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Rule 4(k)(2): Preventing Foreign Defendants from Escaping Personal Jurisdiction
Federal Rule of Civil Procedure 4(k)(2), adopted in 1993, prevents foreign defendants that have violated United States Federal laws from escaping suit for lack of personal jurisdiction. Prior to the adoption of Rule 4(k)(2), foreign defendants whose contacts with any particular state forum were not sufficient to support personal jurisdiction were able to move for dismissal, even if they had sufficient contacts warranting claims for violation of Federal laws. Rule 4(k)(2) remedied that situation and has allowed, for example in Mwani v. Bin Laden, 417 F.3d 1 (D.C. Cir. 2005), personal jurisdiction in U.S. courts over foreign terrorists performing acts outside the United States that affect Americans (the bombing of an American embassy). More recently, the Federal Circuit (the appeal Court for all patent related cases) has affirmed the application of Rule 4(k)(2) to foreign patent infringement defendants. This alert highlights the factual scenarios in which Rule 4(k)(2) has been used to obtain personal jurisdiction over foreign defendants in patent related matters.