Civil Trial & ADR
Is a Change to Specific Jurisdiction on the Horizon? By Callum Morris Esq. FARUKI+ cmorris@ficlaw.com | 937. 227.3700
F
or many of us, civil procedure was one of the first classes we took in law school. Moreover, one of the first things we learn in civil procedure is whether a court has the ability to hear a case -- jurisdiction. In that spirit, let me begin with a hypothetical. I have purchased a brand new iPhone here in Dayton. Since it is the holidays, I go home to Indiana to visit my family. As we roast chestnuts over the open fire, I pull my phone out to see if I have any emails from work. I have 147, all from partners. In my panic my phone flies out of my hand into the fire, destroying it. The next day, I go to the Apple Store in Indiana and buy the exact same iPhone I bought in Dayton. Upon my return to Dayton, the iPhone unexpectedly explodes and injures me. Now, the question. Can I sue Apple in Dayton for the injuries suffered from the second iPhone? In a case currently before the United States Supreme Court, petitioner Ford argues no. Ford, in Ford Motor Co. v. Montana Eighth Judicial District, 140 S. Ct. 917 (2020), looks to inject a proximate cause consideration into the minimum contacts test that determines whether a court has specific jurisdiction over a claim. Before we go further, let's lay out the test for specific jurisdiction. To determine whether specific jurisdiction comports with due process, a court must determine whether the three part minimum contacts test has been satisfied. First, the court must determine whether the defendant "purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws."1 Second, "there must be an affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence that takes place in the forum state and is therefore subject to the State's regulation."2 Third, jurisdiction may still be defeated if there are compelling reasons that the presence of some other consideration would render jurisdiction unreasonable due to concerns of "fair play and substantial justice."3 Ford now seeks to introduce a new causal test into the second prong of the minimum contacts test. The two plaintiffs in Ford, one in Montana and one in Minnesota, purchased used Ford vehicles that had been originally sold in Washington and North Dakota respectively.4 Over the years the vehicles were resold and ended up in Montana and Minnesota where alleged design flaws injured the plaintiffs. Ford tried to defeat jurisdiction in Montana and Minnesota by arguing that the second prong of the minimum contacts test requires the defendant's conduct in the forum give rise to the plaintiffs claim.5 Ford argues that the mere fact a plaintiff was injured in a Ford vehicle that plaintiff brought into a specific jurisdiction does not allow Ford to be haled into court in that jurisdiction because its actions did not bring the vehicle 8
Dayton Bar Briefs December 2020
there.6 Moreover, Ford argues that a "causal test" gives Ford a fair warning as to what activities will subject it to jurisdiction in particular States and Ford can structure its business activities accordingly.7 The Respondents argue it is not unreasonable to subject a defendant to suit when a defendant, like Ford, sells its products, not in isolation, but in an effort to cultivate a "market for its product[s]."8 The Respondents argue that a causal element in the minimum contacts test would deprive States of the ability to protect their citizens from harm or provide a forum for redressing injuries.9 Simply put, Ford's reading of the minimum contacts test would require a court to find a party's activity in the forum led to the specific injury at issue in a case. Returning to my phone hypothetical above, under Ford's reading I could sue Apple in California, where it is headquartered; China, where iPhones are manufactured; or, Indiana, where I first bought the phone. Under Respondent's reading, I could sue in all of those places, plus Ohio because Apple has cultivated a market in Ohio and should expect to be sued here for actions related to the very type of product that caused my injury. While the Court appeared skeptical of Ford's causal test and its foundation in the Due Process Clause, the Court has arguably moved to limit the reach of State's in specific jurisdiction cases over the last several years. This is evident from Bristol-Meyers Squibb Co. v. Superior Court, where the Court held that a group of non-native plaintiffs could not sue Bristol-Meyer Squibb in California for injuries suffered elsewhere, even though a group of Californians had sued in State court alleging identical injuries and causes of action as the non-residents. continued on page 9
END NO TES: 1
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
2
Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780 (2017) (internal citation omitted).
3
Burger King Corp., 471 U.S. at 476-78.
4
Brief for Petitioner, pp. 5, 8.
5
Id. at 17.
6
Id. at 32-3.
7
Id. at 26-7.
8
Brief of Respondent, p. 13.
9
Id. at 3-4.
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