Commentary

“Built for the Road Ahead”: The Supreme Court Recalibrates Personal-Jurisdiction Doctrine in Ford Motor Co. v. Montana Eighth Judicial District Court

By Jeremy L. Kahn

Jeremy L. Kahn is a partner at León Cosgrove and is focused on commercial litigation. ©2021 Jeremy L. Kahn. All rights reserved. The Supreme Court recently decided Ford Motor Co. v. Montana Eighth Judicial District Court, 1 which was the major personal jurisdiction decision on the Court’s docket this term. The decision upsets the prevailing case law in many circuits that an out-of-state defendant’s forum-state contacts can give rise to specific personal jurisdiction only if they have a causal connection with the plaintiff’s claim. The Court held that, at least in some instances, a defendant’s contacts with a state can give rise to specific personal jurisdiction when they “relate to” a plaintiff’s claims, even if a causal connection is lacking. As the Court’s personal-jurisdiction decisions over the past decade have trended toward restricting personal jurisdiction, the expansion of personal jurisdiction in Ford suggests a recalibration of personal-jurisdiction doctrine.

In Ford, the Court considered two cases—one originating in Montana state court and one originating in Minnesota state court—in which an allegedly defective Ford car injured a resident of the respective state in that state. However, the vehicles involved in the car accidents were originally sold in different states. And they also were neither designed nor manufactured in the states where the plaintiffs brought each action. Ford argued that the states where each action was brought lacked personal jurisdiction because Ford did not engage in any conduct in those states that had a causal connection with the plaintiffs’ claims, such as designing, manufacturing, or selling the cars involved in the car accidents in those states.

The Court rejected Ford’s “causation-only” approach to minimum contacts. Rejecting the argument that “a strict causal relationship between the defendant’s in-state activity and the litigation” is necessary for specific personal jurisdiction, the Court noted that its precedents refer to the requirement as being that a plaintiff’s claims “arise out of or relate to the defendant’s contacts with the forum.”2 According to the majority, the use of the disjunctive “or” in prior statements of the rule made it clear “that some relationships will support jurisdiction without a causal showing.”3

As applied to these specific cases, Ford was subject to specific personal jurisdiction even if its forum-state contacts lacked a causal relationship with the plaintiffs’ claims because those contacts were still “related” to the claims. The Court explained that Ford “serves a market” for its vehicles in Montana and Minnesota by marketing its vehicles (including the models at issue) in those states and making those vehicles available for sale at dozens of dealerships in those states. The Court also highlighted how Ford “works hard to foster ongoing connections to its cars’ owners” by distributing replacement parts to its own dealers and independent auto shops in the two states, “making it easier to own a Ford” and thus “encourag[ing] Montanans and Minnesotans to become lifelong Ford drivers.”4 The relationship between these activities and the specific lawsuits were “close enough” to satisfy the “relate to” prong of the rule, even absent a causal connection.5

Distilled, “serving the state markets[s]” by advertising, selling, and servicing the same car models involved in the accidents, which then malfunctioned and caused injuries in those states, sufficed to establish specific personal jurisdiction. This was so regardless of whether Ford advertised, sold, or serviced the specific vehicles at issue in the forum states and regardless of whether the injured drivers made their out-of-state purchases of the vehicles based on Ford’s forum-state advertising or other activities.

Ford has important implications. Most immediately, the Court’s rejection of the “causation-only” approach and recognition of a separate “relates to” path for demonstrating minimum contacts undermines the case law of several circuits. Many circuits previously held that the “arise out of or relate to” formulation

requires at least “but-for” causation, with some circuits requiring an even more substantial causal relationship, akin to proximate cause, for a contact with the forum state to be considered in the minimum-contacts analysis.6 To the extent these circuits’ decisions hold that a causal relationship—“but-for” or otherwise—is necessary, Ford appears to overrule them. In fact, in a decision issued the same day as Ford, Judge Donald W. Molloy of the District of Montana seemed to recognize that Ford overruled a Ninth Circuit precedent requiring “but-for” causation.7 As Judge Roy K. Altman of the Southern District of Florida wrote in another one of the first decisions to discuss the case, “Ford is significant because it clarified that a defendant’s in-state contacts needn’t cause the plaintiff’s injury.”8

Going forward, large corporations can expect plaintiffs to rely on Ford to counter personal-jurisdiction defenses based on the Supreme Court’s 2014 decision in Daimler. 9 The decision in Daimler essentially narrowed general personal jurisdiction to a corporation’s state of formation and principal place of business. Prior to Daimler, it was generally understood that a corporation was subject to general personal jurisdiction in any state where it engaged in “continuous and systematic” business activities. But in Daimler, the Supreme Court clarified that doing business in a state, even “continuous and systematic” business, is insufficient to subject a corporation to general personal jurisdiction.

Receding from decades of what was believed in the lower courts to be well-settled law on general personal jurisdiction, the Court held that the test is “not whether a foreign corporation’s in-forum contacts can be said to be in some sense ‘continuous and systematic,’ it is whether that corporation’s affiliations with the State are so ‘continuous and systematic’ as to render it essentially at home in the forum State.”10 While not ruling out the possibility of “exceptional” cases, the Court explained that generally, the only two forums that could satisfy the “at home” test are a corporation’s state of formation and principal place of business.11 Armed with Daimler, large corporations have been able to successfully evade personal jurisdiction in states where they may have a strong presence and engage in continuous and systematic business activities because they engaged in no suit-related conduct that gave rise to the claim.

Ford shifts the pendulum the other way. While Daimler significantly narrowed general personal jurisdiction, Ford seems to broaden specific personal jurisdiction in a way that makes Daimler’s narrowing of general personal jurisdiction less significant in certain cases. Confronted with arguments that a defendant corporation merely doing a large amount of business in a state does not subject it to general personal jurisdiction, plaintiffs will now likely respond with “serving the market” arguments to show specific personal jurisdiction under Ford. “Serving the market” will become the new “continuous and systematic.”

Indeed, in Ford, the Supreme Court repeatedly used the pre-Daimler language of general personal jurisdiction when describing the type of business activities that now may give rise to specific personal jurisdiction without showing a causal connection.12 For example, the Court referred to how “Ford had systematically served a market in Montana and Minnesota” while in a footnote suggesting that a defendant serving a state market in an isolated transaction would be treated differently than a defendant that engaged in “continuous” transactions in a state.13

The “continuous and systematic” test for general personal jurisdiction that was retired in Daimler appears to now be reincarnated in the framework for specific personal jurisdiction. Given the context of Ford, it remains to be seen whether the “serving the market” basis for specific personal jurisdiction will apply outside the context of claims based on allegedly defective products sold in the forum market. Plaintiffs will likely attempt to apply the “serving the market” argument to other contexts while defendants will likely argue that the logic of the Court’s decision applies only in the context of defective products. In either case, as Justice Gorsuch observed in his concurrence critiquing the majority’s analysis, “some of the old guardrails” separating general and specific personal jurisdiction now “look a little battered.”14 

Endnotes

1Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021). 2Id. at 1020-21. 3Id. at 1026. 4Id. at 1028. 5Id. at 1032. 6See, e.g., Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1222–24 (11th Cir. 2009); O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 322 (3d Cir. 2007); Harlow v. Children’s Hosp., 432 F.3d 50, 61 (1st Cir. 2005); Shute v. Carnival Cruise Lines, 897 F.2d 377, 385 (9th Cir. 1990), rev’d on other grounds, 499 U.S. 585 (1991). 7James Lee Constr., Inc. v. Gov. Emps. Ins. Co., No. CV 20-68-M-DWM, 2021 WL 1139876, at *2 (D. Mont. Mar. 25, 2021). 8Order, Carter v. Ford Motor Co., No. 19-cv-62646, slip op. at 22 n.18 (S.D. Fla. Mar. 26, 2021). 9Daimler AG v. Bauman, 571 U.S. 117 (2014). 10Id. at 139. 11Id. at 138-39. 12Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1028 & n.4 (2021). 13Id. 14Id. at 1034.

3Jacquelyn Pless, Natural Gas as an Expanding Industry, https:// www.ncsl.org/research/energy/state-gas-pipelines-natural-gas-asan-expanding.aspx (last visited May 10, 2021). 4Id. 5Bureau Of Transp. Stat., https://www.bts.gov/content/us-oiland-gas-pipeline-mileage (last visited May 1, 2021). 6Mark Green, Infrastructure Crossroads: Energy Future Depends on Building Safe, Modern Pipelines (July 14, 2020), https://www.api.org/ news-policy-and-issues/blog/2020/07/14/infrastructure-crossroadsenergy-future-depends-on-building-safe-modern-pipeline. 7Id. 8Jonathan Thompson, A Map of $1.1 Billion in Natural Gas Pipeline Leaks, Hill Country News (Nov. 2017), https://www. hcn.org/issues/49.22/infographic-a-map-of-leaking-natural-gaspipelines-across-the-nation. 9See Native American Rights Fund, https://www.narf.org/ cases/keystone/ (last visited May 14, 2021). 10Jacquelyn Pless, Making State Gas Pipelines Safe and Reliable: An Assessment of State Policy, https://www.ncsl.org/research/ energy/state-gas-pipelines-federal-and-state-responsibili.aspx (last visited [May 12, 2021]). 11Catherine Little, Regulation of Oil and Natural Gas Pipelines: A Legal Primer for The Layman, Pipeline & Gas J. (Mar. 2008). 12Federal courts employ what is commonly known as the “quicktake” procedure, whereby possession is granted upon deposit of the condemnor’s assessment of just compensation, with litigation following if such compensation is contested. In contrast, in Texas, a bona fide offer process, an administrative proceeding before special commissioners, and, then, the deposit of the commissioners’ stated award into the court’s registry precedes possession. Some interstate pipeline condemnation cases are filed in state courts. 13See Tex. Nat. Res. Code § 111.019, which states (a) Common carriers have the right and power of eminent domain. (b) In the exercise of the (common carriers); see also Tex. Util. Code Ann. § 181.004 (gas or electric corporations); Tex. Water Code § 54, et seq. (municipal utility districts). 14Respondents are the state of New Jersey, the New Jersey

In the Legal Community continued from page 20

dents as a direct function of the tremendous partnerships developed between the judiciary and local chapters of the FBA. Another notable example of its reach is an anticipated CD3 program to be presided over by Supreme Court Justice Breyer. The judges hope that CD3 will become a regular part of courthouse programming in districts nationwide. Materials for the CD3 program are available on the U.S. Courts website at: https://www.uscourts.gov/educational-resources/ educational-activities/civil-discourse-and-difficult-decisions. Should you wish to initiate a program in your own district, you may contact Rebecca Fanning, the Federal Courts’ educational outreach manager, at rebecca_fanning@ao.uscourts.gov. Based on its past success, there is no doubt that more widespread implementation of CD3 will deliver hope to our future leaders and promise for a less divided nation. 

Commentary continued from page 22

like Aguacate Consolidated Mines, constitute binding Eleventh Circuit precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 29Id.at 1324 (citing Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 168-69 (3d Cir. 1976)). Department of Environmental Protection, the New Jersey Agriculture Development Committee, the Delaware & Raritan Canal Commission, the New Jersey Water Supply Authority, the New Jersey Department of Transportation, the New Jersey Department of the Treasury, and the New Jersey Motor Vehicle Commission. See Penneast Pipeline Co. v. New Jersey et al., No. 19-1039 (U.S. Sup. Ct., 2020). 15N.J. Rev. Stat. § 20:3-2(b) (1971). 16See supra, note 19. In addition, the New Jersey Conservation Foundation holds a conservation, agricultural, and public right of way easement for the purpose of protecting, preserving, and retaining the property as conservation and agricultural lands and open space. 17Allen v. Cooper, 140 S. Ct. 994, 1000-1001 (2020). 18See Hans v. Louisiana, 134 U.S. 1, 12-13 (1890). 19Brief for Respondent at 7, Penneast Pipeline Co. v. New Jersey et al. 20Brief for Respondent at 17-18, Penneast Pipeline Co. v. New Jersey et al. 21Amicus Brief by the Chamber of Commerce of the United States of America and the Pennsylvania Chamber of Business Industry as Amicus Curiae in Support of Petitioner, at 4-5, Penneast Pipeline Co. v. New Jersey et al. (No. 19-1039). 22Amicus Brief by The Interstate Natural Gas Association of America, American Gas Association, and American Petroleum Institute as Amici Curiae in Support of Petitioner, at 1-3, Penneast Pipeline Co. v. New Jersey et al. (No. 19-1039). 23In re PennEast Pipeline Co., LLC, 938 F.3d 96, 113 (3d Cir. 2019). 24Id. 25Brief for Petitioner at 50, Penneast Pipeline Co. v. New Jersey et al. (No. 19-1039). 26See Brief of the Council of State Governments, the National League of Cities, the U.S. Conference of Mayors, the International City/ County Management Association, and the International Municipal Lawyers Association, as Amici Curiae in Support of Respondents, enneast Pipeline Co. v. New Jersey et al. (No. 19-1039). 27Id. at 14-15. 28Id. at 17.

Endnotes

1575 U.S. 723 (2015).

30Id. 31Id. 32Id. at 1324-25 (citing Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 947 (11th Cir. 1997)). 33Id. at 1325.

Hon. Anuraag “Raag” Singhal

U.S. District Judge, Southern District of Florida

by Scott Strauss

Scott Strauss is a trial attorney in Fort Lauderdale, Fla., who focuses his practice in federal court in the areas of civil and criminal law. ©2021 Scott Strauss. All rights reserved. or Raag Singhal, becoming a federal judge

Fwas never part of the plan. In fact, when he was a senior in high school, his government teacher told him he would never become a lawyer because he was too quiet. Couple that with the still prevalent expectation in the late 1970s and early 1980s that Asian-American kids were likely to go into science-oriented fields, and law didn’t seem to be on the radar.

Judge Singhal was born in Philadelphia in 1963, four years after his parents arrived in America from the small north Indian town of Aligarh. His parents were raised while India was under British rule, and, although they saw India win her freedom to some extent, they appreciated the opportunity and rule-oriented culture offered in the United States.

“My parents’ main tenets were deeply-rooted beliefs in God, family, education and hard work. Only once they were satisfied that boxes were checked in those core areas could I go and do things others were doing. It led to a somewhat quiet, isolated life but it was the best life for me,” Singhal recalls. He adds,

I remember teaching myself how to play baseball by throwing against a pitchback and watching players like Hank Aaron, Pete Rose, and Tom Seaver. I taught myself how to play tennis by hitting balls off a cement wall and watching Vijay Amritraj, Bjorn Borg, and Jimmy Connors. But what I was really drawn to was long distance running. I think for me that was a way to stay healthy, gain peace of mind, think and plan and outrun everyone else. I wasn’t the fastest, but I could usually run the farthest.

Indeed, Judge Singhal has run in numerous ultramarathons and credits those races with solidifying his persistence.

Perhaps it is because of that upbringing that Judge Singhal’s well-known qualities in the legal community include persistence, attention to rules and preparation, a willingness to help, and compassion. Ultimately, his legal career took him through stints as a civil practitioner, prosecutor and eighteen-year criminal defender. In each job, on every case, Judge Singhal’s goal was to stand in the shoes of his client, feel what they were feeling, and convey that to the other side, the judge or the jurors.

In 2019 and 2020, President Donald J. Trump nominated five federal judges to the U.S. District Court in the Southern District Florida—all subsequently confirmed by the U.S. Senate. Collectively, these outstanding jurists comprise nearly one-third of the active judges within the district. Each of them brings a unique and diverse background to the federal bench, but among them, Judge Singhal’s journey is extraordinary, underscoring the importance of perseverance, considering the adversity that he endured along the way.

Beginning in July 2005, Judge Singhal applied to serve as both county and circuit judge in the state of Florida. After successfully interviewing before the Judicial Nominating Commission (JNC) in Broward County, his name was among six forwarded to Governor Jeb Bush for consideration. At the governor’s request, Judge Singhal traveled from Fort Lauderdale to Tallahassee for an in-person interview. While Judge Singhal was not nominated at that time, over the next six years, he applied for 16 different judicial vacancies—10 with Governor Charlie Crist—each