Federal Rule of Civil Procedure 4(k)(2) cures a narrow loophole where a non-resident defendant has sufficient personal-jurisdiction contacts with the United States as a whole but does not have sufficient contacts with any one specific jurisdiction to create personal jurisdiction. In that situation, a plaintiff suing the foreign defendant can select whatever appropriate venue it chooses, and service of the complaint will establish personal jurisdiction. If the defendant is subject to personal jurisdiction in a different forum, Rule 4(k)(2) would be unavailable and personal jurisdiction in the chosen forum would be improper.

But companies can choose to consent to personal jurisdiction. An issue the Federal Circuit recently addressed was whether the foreign company’s post-suit consent to personal jurisdiction in a different forum could operate to override the plaintiff's chosen forum in favor of the forum desired by the defendant.

The Federal Circuit, noting a split in district courts facing the issue, held that a defendant’s post-suit consent was irrelevant. To show that jurisdiction under Rule 4(k)(2) was improper, the Federal Circuit clarified that a defendant’s burden entails identifying a forum where the plaintiff could have brought suit—a forum where jurisdiction would have been proper at the time of filing, regardless of consent.

In future cases, a defendant will have to marshal evidence of contacts with a specific forum in order to avoid application of Rule 4(k)(2). Also, it remains to be seen whether a defendant’s pre-suit, rather than post-suit, consent to personal jurisdiction could provide evidence to defeat Rule 4(k)(2). For example, 35 USC § 293 allows patentees not residing in the United States to file with the United States Patent and Trademark Office (USPTO) a written designation stating the name and address of a person residing within the United States on whom may be served process or notice of proceedings affecting the patent.