Currently pending before the Supreme Court are two garden-variety personal injury cases involving a personal jurisdiction issue that, we thought, had been settled in the decades we have been teaching Civil Procedure: whether a plaintiff injured in an automobile accident may hale the out-of-state manufacturer of the automobile into the forum state where the accident occurred.
Two state supreme courts concluded, in accord with established doctrine, that the answer is yes because the plaintiffs’ claims arise out of or relate to the contacts of the defendant manufacturer—here Ford Motor Co. (“Ford”)—in the forum states. Accordingly, the courts held, there was specific personal jurisdiction over Ford in the forum states.
In a sign that the law of specific jurisdiction may change, the Supreme Court granted certiorari in these two cases and consolidated them. While a decade ago this change in the law seemed remote, it now may occur given the approach of the Court under Chief Justice John Roberts to personal jurisdiction.
Oral argument, originally scheduled for the spring then postponed due to the pandemic, will occur on October 7. We briefly summarize the facts and procedural history of each case, analyze the issues raised by Ford’s theory of specific personal jurisdiction, and consider the way in which Justice Ruth Bader Ginsburg’s recent death may influence the Supreme Court’s decision.
The Facts and Procedural History of the Cases
The cases are standard personal injury litigation fare. In each case, the driver was involved in an accident while driving a Ford automobile. And in each case, the driver was a resident of the state where the accident occurred and where suit subsequently was brought.
Ford Motor Co. v. Montana Eighth Judicial District involves a resident of Montana who died, it is alleged, after one of the tires on the Ford Explorer she was driving failed. According to the Montana Supreme Court, “one of the Explorer’s tires suffered a tread/belt separation. The vehicle lost stability, rolled into a ditch, and came to rest upside down.” The driver died at the scene. Her personal representative brought suit in state court in Montana, where the accident occurred, asserting tort claims against Ford. The Montana Supreme Court held that Montana has specific personal jurisdiction over Ford.
Similarly, in Ford Motor Co. v. Bandemer, a resident of Minnesota alleges he suffered severe brain injury after the passenger-side airbag in his Ford Crown Victoria did not deploy in a collision in his home state. The Minnesota Supreme Court upheld the trial court’s decision to exercise personal jurisdiction over Ford.
The Supreme Court consolidated the cases when it granted certiorari because each involves the same issue: Whether the “arise out of or relate to” requirement for specific personal jurisdiction “is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.”
Ford Contends the Accidents Are Not Related to its Conduct in the Forum State
Ford’s central argument in both cases is that the “relatedness” requirement for specific personal jurisdiction is not met when the car involved in the accident in the forum state was neither manufactured nor sold there. The concept animating this argument is causation, a concept adopted from tort law.
In tort law, courts distinguish between factual causation typically satisfied by a “but for” test—that is, “but for” defendant’s conduct, plaintiff would not have suffered the harm—and proximate causation, which requires that, ex ante, the plaintiff’s harm was foreseeable.
Ford’s brief in support of its certiorari petition described a split in the approach taken by different states and federal circuit courts of appeals as to whether—and if so, how—causation must be analyzed when determining whether a nonresident defendant’s contacts with the forum state relate to the case and thereby satisfy specific jurisdiction.
The problem with proximate cause as the sine qua non of the relatedness requirement is that while foreseeability is a concept long recognized by the Supreme Court, it has not previously been used by the Court to define the relatedness required for specific jurisdiction. Rather, the concept is a defining feature of the requirement that a defendant must have “purposefully availed” itself of the benefits of the forum state in order to be subject to specific jurisdiction there.
Foreseeability, Purposeful Availment and Relatedness
In World-Wide Volkswagen Corp. v. Woodson, a personal jurisdiction case decided in 1980, the Supreme Court stated that “the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”
In that case, the Supreme Court held that a local car dealership and distributor had not purposefully availed themselves to a distant state where the car sold was involved in an accident. Significantly, the national importer and German manufacturer of the car did not object to jurisdiction, presumably because they served a national, rather than local, market that included the forum state.
In the pending cases, Ford—which, of course, also serves a national market—does not contend that it has not purposefully availed itself in the fora where the accidents occurred. This means Ford is unable to argue that it could not have anticipated the possibility of being sued in Montana or Minnesota given its success selling cars in those states.
Instead Ford argues for a relatedness test that it labels a “proximate cause” requirement but is actually significantly stricter than a foreseeability test: a requirement that the defendant have a contact with the forum state that is an “operative fact” in plaintiff’s claim against it. If Ford neither made nor sold the particular car in the state where plaintiff lives and was injured, then Ford’s well-documented efforts to serve that state’s market are not “operative” and specific jurisdiction would be lacking.
The plaintiffs’ lawyers in the Ford cases argue that the relatedness requirement fits better with the understanding that a forum state must have an interest in hearing the case, which would be met, for example, by the fact that the plaintiff was injured within the state.
Indeed, that is the very understanding that underlies the constitutional standards for which state’s law should be applied to a particular controversy; only the law of an interested state may apply. In the choice-of-law context, requiring that a state have an interest in order for its law to apply serves the functions of limiting potential sources of law and providing some predictability. The same policies are served by understanding relatedness in relation to state interest in the jurisdictional setting.
Dueling Interpretations of the Phrase “Arise Out Of or Relate To”
Ford’s argument depends on a cramped reading of the familiar phrase describing specific jurisdiction—that plaintiff’s claim must “arise out of or relate to” defendant’s contacts with the state. Essentially Ford argues that the phrase is redundant. In its view, “related to” is not any broader than “arise out of.” Plaintiffs, not surprisingly, argue the opposite; the phrase is disjunctive and refers to different, not synonymous, concepts.
This seemingly minor syntactical point takes on significance because the foundational premise of Ford’s argument is that the relatedness requirement does the work of policing the line between specific and general jurisdiction. (General personal jurisdiction is found where the defendant is “at home” in the forum state; the defendant may be sued on any claim when it is subject to general jurisdiction.)
Ford is correct: In order for a court to find specific personal jurisdiction over a nonresident defendant, it must conclude that the claim is related to the defendant’s “contacts” or activities in the forum state. No such finding is necessary for general jurisdiction. Ford’s argument nevertheless would seem to be unavailing, given the discussion above regarding its contentions based upon causation.
Moreover, the Supreme Court should not restrict specific personal jurisdiction after it already has limited the availability of general jurisdiction in cases like Goodyear Dunlop Tires Operations v. Brown and Daimler AG v. Bauman, cases decided by the Roberts Court. Should the Court now adopt a restrictive interpretation of the phrase “arises out of or relate to,” it would limit specific personal jurisdiction in a way that would benefit corporate manufacturers at the expense of consumers.
Justice Sonia Sotomayor articulated this concern in her dissent in Bristol-Myers Squibb v. Superior Court of California, a case decided in 2017 and heavily relied on by Ford. She argued that if general jurisdiction is unavailable as a way to hold large national corporations accountable in the many states where those defendants have a large presence, then specific jurisdiction should fill this gap.
Finally, if the Court adopts Ford’s proposed causation requirement, it likely will result in even more litigation over personal jurisdiction at the onset of a case. A strict requirement that a defendant’s contact with the forum be an “operative” fact in plaintiff’s claim will invite litigation over what counts as “operative” and may result in the splintering of products liability cases into claims against retailers in plaintiffs’ home state and against manufacturers in distant fora.
The Passing of Justice Ginsburg
How will the death of Justice Ginsburg play into this debate? It’s hard to say. On matters of personal jurisdiction, from plaintiffs’ standpoint, Justice Ginsburg giveth, but she also taketh away.
Justice Ginsburg wrote a powerful dissent in J. McIntyre Mach. Ltd. v. Nicastro, a products liability case decided in 2011 in which a plaintiff brought suit in his home state of New Jersey after suffering there the injury allegedly caused by the defective metal-shearing machine made by an English manufacturer. The Court’s plurality thought no specific jurisdiction existed because the defendant had not succeeded in selling or having a wholesaler sell its machines to New Jersey purchasers.
However, Justice Ginsburg also supported narrowing the availability of general personal jurisdiction and agreed with the majority that there was not specific jurisdiction in Bristol Myers Squibb.
Ultimately, Ford’s attempt to coopt the foreseeability concept as a way of narrowing the scope of specific jurisdiction would have serious implications for plaintiffs seeking remedies for products liability claims in the state where the product has caused injury. That concern is illustrated by the facts in the cases under review: If plaintiffs injured in Minnesota and Montana cannot obtain either specific or general jurisdiction in the place of injury, where can they get relief?
Presumably plaintiffs’ options would be limited to either the home states of large corporate defendants or perhaps states where the particular car was manufactured or sold. If those states are far from the place of injury (and often, as in these cases, the home states of the injured plaintiffs), then the second-order effect of a Supreme Court decision adopting Ford’s arguments may well be that, at least in some cases, plaintiffs lack the resources to pursue the claims.
As is often the case, defendants may be less interested in personal jurisdiction than in whether the cases against them will be heard in state or federal court. The conventional wisdom is that corporate defendants, particularly in products liability cases, prefer federal court. In fact, Ford noted that plaintiffs suing in their own home states often join in-state defendants (local merchants, for example) in order to defeat removal.
The irony of that concern is that if Ford prevails in the Supreme Court in these cases, plaintiffs forced to sue corporate defendants in the defendants’ home states will be able to prevent removal under 28 U.S.C. Section 1441(b). Schadenfreude is currently enjoying a moment in the culture; perhaps Ford and other corporate defendants should be careful what they wish for.
It’s possible that Justice Ginsburg’s death will make the Court more reticent here than it otherwise would be. Her blistering dissent in Nicastro may have prevented the Court from doing more than reaching a plurality in that decision.
With only eight justices seated for oral argument, a 4-4 decision would result in affirmance of the judgments below. Only one of the five conservative justices would need to join Justices Sotomayor, Kagan, and Breyer to retain the status quo. Whether out of respect for Justice Ginsburg or concern about the optics of changing a body of law with less than a full Court in place, the Court may decide to avoid erecting another barrier to personal injury plaintiffs bringing suit in the states where they were injured.