It offends our sensibilities (and sense of self-preservation) when we see a lawsuit in a jurisdiction that is home to neither the plaintiff, nor the defendant, nor any of the activities that gave rise to the claims. Often, the only things the jurisdiction was home to were the plaintiff attorneys and a set of maddeningly pro-plaintiff judges and juries. One would think that a court system and its taxpayers would feel aggrieved at devoting labor and money to resolve disputes for someone else from someplace else, but there are miscreants in the works who manage to ignore the expense side of the equation and instead focus only on the chimerical benefits of litigation tourism or the miscreants’ misplaced sense of self-importance. (Remember, we practice in Philly. We have whiled away many hours in City Hall courtrooms watching Texas lawyers representing Utah plaintiffs suing a New Jersey company, all in front of Center City Philly jurors who would no doubt rather do their jobs, spend time with their children, or discuss the moribund status of the Phillies, Flyers, Sixers, and pretty much any home team here above Little League.) The problem is that the law on personal jurisdiction was perfectly elastic, and the laws of venue and forum non conveniens were all too easily disregarded or distorted.
But at least personal jurisdiction has been set aright by the Supreme Court. When we were in law school, during the era of Duran Duran and Footloose, we were taught that there was personal jurisdiction over a large corporation so long as said corporation had systematic contacts with a jurisdiction – which, being a large corporation, it pretty much always did. Then, in 2014, when we had grudgingly moved on to the Black Keys and Guardians of the Galaxy, the Supreme Court in the Bauman case limited general jurisdiction to corporations that were “at home” in the jurisdiction (usually meaning place of incorporation or principal place of business), and limited specific jurisdiction to cases where the corporation’s suit-related conduct created a substantial connection to the state.
The impact of Bauman was immediate and profound and wholly beneficent. We have had the pleasure on a number of occasions (here and here, for example) of reporting on cases in which the new Bauman jurisdiction architecture slammed shut the gate on plaintiff forum-shopping. This Spring we discussed the Neely case from the Kansas federal district, where the court held that a drug company that registered to do business in Kansas and then actually had the temerity to conduct some business there had not thereby succumbed to general jurisdiction. That was a good result.
Even though Kansas and Missouri are right next door to each other, they do not always agree. When the teams from the Universities of Missouri and Kansas played football (now a difficult thing since Missouri bolted for the SEC), it was called the Border War. That charming appellation traces its roots to a murderous Civil War era history. The Kansas mascot is the Jayhawk, and that term at one point referred to plundering marauders. Kansas-Missouri is the oldest college sports rivalry west of the Mississippi and ancient enmities die hard. The great Missouri basketball coach Norm Stewart insisted that his team stay in Kansas City, Missouri the night before games, rather than sleep in Kansas. He also ordered the team bus to be fully gassed up on his side of the border, so as not to add dollars to the Kansas economy.
Jayhawks fans have been just as ardent. At one point they created shirts with pictures of violent abolitionist John Brown that said: “Kansas: Keeping America Safe from Missouri Since 1854.” Good times. That absence of harmony also shows up in the law. For example, the Kansas Supreme Court upheld a statutory damages cap. By contrast, the Missouri Supreme Court held its state’s cap to be unconstitutional. If we have a case, we are pretty sure which side of the border we want to be on. But either way, there will be astonishingly good BBQ on offer.
At least in terms of history or ideology, it was by no means a foregone conclusion that a Missouri federal court would be in accord with the Kansas federal court on personal jurisdiction. But the Missouri court certainly showed us. It reached a result every bit as good as the earlier Kansas case. The name of the Missouri case is Keeley v. Pfizer, Inc., 2015 WL 3999488 (E.D. Mo. July 1, 2015). The plaintiffs were from Georgia. The claim was that Zoloft taken in Georgia resulted in birth defects — again, in Georgia. The defendant was Pfizer, which is incorporated in Delaware and has its principal place of business in New York. Yes, it sold Zoloft in Missouri, though the Zoloft it sold that was relevant to this case was sold in Georgia.
Why was the case in Missouri? We do not know. The plaintiffs (or their counsel) must have had their reasons. But here’s a good reason for a personal injury plaintiff not to sue in Missouri: there are lots and lots of Shook, Hardy lawyers in Missouri. They are truly “at home” there. Shook, Hardy lawyers are good at coming up with winning arguments. In the Keeley case, they came up with a winning argument for kicking the case out of Missouri. That argument broke down into two parts: general jurisdiction and specific jurisdiction, so we will do the same.
(But before we do, let’s insert one slightly churlish quibble. Personal jurisdiction analysis typically first involves an analysis of the state’s “long-arm” personal jurisdiction statute. If the long-arm statute does not reach the particular defendant, the case is over. But even if the statute would reach the defendant, the court then scrutinizes whether personal jurisdiction over that defendant would satisfy requirements of due process. As far as we can tell, the Keeley court raced straight to the due process analysis. Conflating the statutory and due process analyses makes perfect sense if the statute, by its own terms, simply provides that the state’s long-arm reach is co-extensive with due process. We know that’s true in Pennsylvania, but we never hear that such is the case with the Missouri statute. Maybe it is. Maybe it isn’t. Maybe your eyes are already glazing over. Never mind.)
The Keeley court observed that in the wake of Bauman, general jurisdiction is limited to place of incorporation or principal place of business except in an “exceptional case.” In Bauman, the defendant car manufacturer sold cars in California, where the case was brought, but the company was German-based and the cars at issue had been sold in Argentina. Nothing exceptional there. Adios Hollywood and Raymond Chandler; hola Buenos Aires and Jorge Borges. Don’t cry for the litigants. There was not enough in Bauman for general jurisdiction over the car manufacturer and, it turns out, there was even less in the Keeley case: “Simply marketing and selling a product in a state does not make a defendant’s affiliations with the state so ‘continuous and systematic as to render them essentially at home in the forum state.” So the Keeley case was going to put Missouri in its rearview mirror, unless the plaintiffs could establish
… which they could not. Specific jurisdiction focuses on the defendant’s conduct and its relationship to the forum and the litigation. When courts look at a defendant’s case-related conduct to see if there is a sufficiently substantial connection, the key factors are: (1) nature and quality of the contacts with the forum state, (2) quantity of the contacts, (3) relation of the cause of action to those contacts, (4) interest of the forum state in providing a forum for its residents, and (5) convenience of the parties. Whenever we see that sort of list, we cringe in fear of the sort of balancing test that permits a court to do pretty much whatever it wants. But the concatenation of facts recited by the plaintiffs in Keeley was so similar to those recited by other plaintiffs who lost the personal jurisdiction battle such that the result in Keeley was as inevitable as yet another successful St. Louis Cardinals’ season. The defendant’s alleged contacts with Missouri had nothing to do with the claims at issue. The prescription was not in Missouri, the purchase was not in Missouri, the plaintiff had not relied on any ads in Missouri, and the alleged injuries did not take place in Missouri. The fact that the defendant was registered to do business in Missouri had nothing to do with any of the facts we just mentioned. Essentially, the plaintiffs were trying to take us back to the bad old pre-Bauman days. The Keeley court was having none of the plaintiffs’ position: “Under plaintiff’s theory of jurisdiction, a national company could be sued by any resident of any state in any state.” And that would be bad.
The plaintiffs also advanced a new argument that they apparently hoped would nullify Bauman that Pfizer had consented to personal jurisdiction in Missouri because it registered to do business in Missouri and had a registered agent in Missouri. That hardly would make Keeley an “exceptional case.” Such an “exception” would swallow up the Bauman rule. The Keeley court rejected the plaintiffs’ not-so-clever effort to evade Bauman, holding that a “defendant’s consent to jurisdiction must satisfy the standards of due process and finding a defendant consents to jurisdiction by registering to do business in a state or maintaining a registered agent does not.” There was no consent, there is no personal jurisdiction over the defendant (either general or specific), and the court granted Pfizer’s motion to dismiss.
Missouri: home to Mark Twain, Masters and Johnson, Stan Musial (although The Man was born in Pennsylvania), John Ashcroft, and burnt ends. And now home to an excellent personal jurisdiction decision.