Every litigator has heard the jurisdictional standard laid out in International Shoe and most could probably recite it: “[I]n order to subject a defendant to a judgment in personam . . . he [must] have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” See Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). But this landmark decision left open a back door, making corporations subject to jurisdiction in any forum where they have conducted business if a court finds their contacts to be “systematic and continuous.” Id. at 317. See also Eugene F. Scoles et al., Conflicts of Law 348–52 (3d ed. 2000).
In an attempt to rein in such overarching jurisdiction, the Court observed in Goodyear and Daimler that general jurisdiction should not be used as a tool for plaintiffs to bring suit against large corporations in essentially any forum across the United States. See Daimler AG, 571 U.S. at 122; Goodyear, 564 U.S. at 919. To protect against this, Justice Ginsburg established the “at home” doctrine, limiting general in personam jurisdiction to a corporation’s principal place of business (determined by the “nerve center test”—and most commonly indicating where a company’s headquarters is located) and the state or states of incorporation. Id.; see also Hertz v. Friend, 559 U.S. 77 (2010) (ruling on the application of the nerve center test in determining a corporation’s principal place of business—where the company’s main officers direct activity). While some legal debate has ensued concerning whether “at home” could also include contacts with a forum that are so substantial that a corporation could be subject to general jurisdiction outside the two specified forums, the doctrine has yet to be applied to a case in that way. See generally D.E. Wagner, “Hertz So Good: Amazon, General Jurisdiction’s Principal Place of Business, and Contacts Plus as the Future of the Exceptional Case,” 104 Cornell L. Rev. 1085 (2019); Tanya J. Monestier, “Where Is Home Depot “At Home”?: Daimler v. Bauman and the End of Doing Business Jurisdiction,” 66 Hastings L.J. 233 (2014); Carol Andrews, “Another Look at General Personal Jurisdiction,” 47 Wake Forest L. Rev. 999 (2012).
Justice Ginsburg’s “at home” doctrine closed the door on extensive general jurisdiction, forcing plaintiffs to try to mold specific jurisdiction to their favor instead. Typically, contacts with the forum state have only given rise to specific jurisdiction when those contacts are directly related to the cause of action alleged. See International Shoe, 326 U.S. at 321; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980). Such a relational test maintains the integrity of state sovereignty within territorial limitations. See Hanson v. Denckla, 357 U.S. 235, 251 (1958). “But the ‘primary concern’ is ‘the burden on the defendant.’” Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780 (2017) (quoting World-Wide Volkswagen Corp., 444 U.S. at 292).
In two recent cases, the plaintiffs in both asserted varying product liability claims against the defendant, Ford Motors. See Ford Motor Co. v. Mont. Eighth Judicial Dist. Ct., 443 P.3d 407 (Mont. 2019); Bandemer v. Ford Motor Co., 913 N.W.2d 710 (Minn. Ct. App. 2018). In moving to dismiss for lack of personal jurisdiction in both cases, Ford claimed it was not subject to suit in the forum because the vehicles in contention were not manufactured, designed, assembled, serviced, or sold there. Montana Eighth Judicial District Court, 443 P.3d at 411; Bandemer, 913 N.W.2d at 714. The lower courts in both cases denied Ford’s motion and ruled in favor of exercising specific jurisdiction over Ford; both cases were affirmed on appeal. Montana Eighth Judicial District Court, 443 P.3d at 418; Bandemer, 913 N.W.2d at 716.
In determining specific jurisdiction, courts must first analyze whether a state’s long-arm statute would empower it to extend jurisdiction and then analyze the constitutionality of such an extension. Montana Eighth Judicial District Court, 443 P.3d at 412. In the two states relevant to the Ford cases, Montana and Minnesota, long-arm statutes had been enacted giving the states broad jurisdiction. In Montana, where a defendant’s actions, no matter where those actions take place, lead to injury constituting a tort within the state of Montana, a court is authorized to exercise jurisdiction over the defendant. Id. at 412 (citing Mont. R. Civ. P. 4(b)(1)). And Minnesota allows courts to exercise jurisdiction over any defendant as long as that jurisdiction is constitutional. Bandemer, 913 N.W.2d at 714. Thus, in both cases, the contacts with the forum had to be tested under a constitutional standard. See Montana Eighth Judicial District Court, 443 P.3d at 413; Bandemer, 913 N.W.2d at 714.
In the Montana case, the court focused on Ford’s purposeful availment of the forum. Montana Eighth Judicial District Court, 443 P.3d at 413. In Worldwide Volkswagen, the Supreme Court ruled that where a defendant “delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State[,]” they must be subject to personal jurisdiction. World-Wide Volkswagen Corp., 444 U.S. at 298. Subsequently, in a plurality opinion, Justice O’Connor suggested that merely supplying the product in the stream of commerce was not enough—that the defendant would have to have acted in some way that demonstrated its “intent or purpose to serve the market in the forum State[.]” Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 112 (1987). In the Montana Eighth Judicial District Court case, the Supreme Court of Montana adopted Justice O’Connor’s approach to the stream of commerce test but found that Ford met both requirements nonetheless. 443 P.3d at 414. First, Ford placed motor vehicles and their parts into the stream of commerce with an adequate foreseeability that those products would be sold in Montana. Id. And, second, Ford displayed its intent to avail itself of Montana’s jurisdiction because (i) it advertised its products and services in the forum state, (ii) it was registered to do business in the forum state, (iii) it owned dozens of dealerships within the forum state, and (iv) it conducted repairs and replacements in the forum state. Id. The court then turned to whether the plaintiff’s claims arose out of Ford’s interactions with the forum. Id. at 415. The court there found that as a car manufacturer, Ford was aware that its products would cross state lines, and therefore, because it otherwise purposely availed itself of the forum, jurisdiction must stand out of “fairness and reasonableness[.]” Id. at 416. The court failed, however, to make any connection between the plaintiff’s cause of action and Ford’s explicit contacts with the Montana forum—a glaring discrepancy between the court’s ruling and the policy it cited to support it.
Meanwhile, in Minnesota, the court broke down the constitutionality of exercising jurisdiction into a five-factor test: (i) the amount of contacts the defendant has with the forum state, (ii) what those contacts are, (iii) the connection between those contacts and the plaintiff’s cause of action, (iv) the forum state’s interest in resolving the dispute, and (v) the convenience of both parties. Bandemer, 913 N.W.2d at 714. Ford contested only the third factor, confident that without any real and stable connection between its contacts with the forum and the plaintiff’s claims, exercising personal jurisdiction would be unconstitutional. Id. The court denied Ford’s argument and ruled that its mere advertising in the forum—specifically email solicitation, a Google AdWords campaign, and a regional marketing approach—was enough to constitute a connection. Id. Ford argued that the advertising was too attenuated to connect to the plaintiff’s cause of action. And Ford’s argument was strong—its Minnesota advertisements did not even promote the product for which the plaintiff’s claims arose. Id. at 715. Citing the Supreme Court’s decision in Bristol-Myers Squibb, Ford Motors argued that the Minnesota forum could not employ specific jurisdiction over it because none of the relevant activities to the alleged harm occurred within its borders. Id. (citing Bristol-Myers Squibb, 137 S. Ct. at 1783 (holding that relevant activities occurring out of state could not support specific jurisdiction within the state)). But once more, the court shot down Ford’s arguments, claiming that its affirmation of specific jurisdiction could be reconciled with the holding in Bristol-Meyers Squibb, going to great lengths to strain the contacts doctrine.
Stretching the Bristol-Myers Squibb holding far past its limits, the Minnesota Court of Appeals contended that a two-part rationale justified sufficient contacts with the forum: (i) the plaintiff was a Minnesota resident, injured in Minnesota, in a vehicle registered in Minnesota; and (ii) Ford has substantial marketing in Minnesota (irrespective of what product was being marketed). Id. at 716. Notably, the court could not—and did not attempt to—connect the plaintiff’s contacts in the first factor to Ford’s marketing activity, yet it still ruled, against existing jurisprudence, that specific jurisdiction was justified. Id. The Supreme Court of Minnesota affirmed the judgment under substantially similar reasoning. Bandemer v. Ford Motor Co., 931 N.W.2d 744 (Minn. 2019). Ford subsequently petitioned the Supreme Court for a writ of certiorari.
