We have previously expressed our surprise that personal jurisdiction has so quickly become such an effective bulwark against the forum abuse that we call litigation tourism. Our surprise is modest, mind you, since the recent recalibration of general personal jurisdiction is well supported in the law, and it enacts a concept of general jurisdiction that makes sense. After all, if a defendant is to be held to answer in a particular forum for any and all cases, no matter what the subject matter, it ought to be in a forum where the defendant is at home. For a corporation that means its place of incorporation or its principal place of doing business. See Daimler AG v. Bauman, 134 S. Ct. 746 (2014).
So we are not surprised that lower courts have embraced Bauman on its merits. (For more on that, see here and here) Our surprise is with how fast courts have come around, given that sea changes in core legal concepts sometimes require take a generation of lawyers and judges before they really sink in.
To be sure, some courts continue to resist and try to find general personal jurisdiction where it really does not exist. But most cases are similar to a case decided last week in the Eastern District of Missouri, Clarke v. Pfizer, No. 4:15-cv-01072, 2015 WL 5243876 (E.D. Mo. Sept. 8, 2015), which found no jurisdiction. The facts of Clarke present a familiar jurisdictional scenario. In fact we wrote on a remarkably similar case, also from Missouri just a few months ago. The plaintiff used the defendant’s anti-depressant during her pregnancies and alleged injuries to her children. Id. at *1. The familiar allegations are those surrounding the venue: The plaintiff was a citizen of Nebraska, used the product in Nebraska, and gave birth to her children in Nebraska. The defendants were citizens of New York and Delaware with their principal places of business in New York.
So where did the plaintiff sue? Missouri. At first we saw nothing in the Clarke order showing why the plaintiff filed in the Show Me State, but then we showed ourselves the order’s lone footnote, which confirmed our suspicion: “The sole connection of this litigation to Missouri appears to be that Plaintiff’s attorney is in St. Louis . . . .” Id. at *2 n.1. We are all for convenience, but you can’t always work in your backyard just because you don’t feel like commuting.
The district court in Clarke dismissed the complaint for lack of personal jurisdiction, and we commend the order to you, if for no other reason than it is an incredibly compact discussion and application of personal jurisdiction in the prescription drug context. If you are preparing a personal jurisdiction motion, this judge and her clerks have saved you some time—just echo what they said:
Generally, the Supreme Court has limited general jurisdiction for a corporation to its place of incorporation and its principal place of business. However, in certain “exceptional” cases, a corporation’s operations in another forum “may be so substantial and of such a nature as to render the corporation at home in that state.”
Id. at *1 (quoting Bauman, 134 S. Ct. at 761 n.19). We don’t know what motivated the Supreme Court to drop its footnote in Bauman re “exceptional” cases; maybe the opinion’s author needed to insert that little escape hatch to hold a few votes. Regardless, many plaintiffs now try to characterize their cases as “exceptional” to stay in their chosen forums.
And that is what the plaintiff did in Clarke. Unfortunately for the plaintiff, the only thing she could offer to make her case “exceptional” was that the defendant marketed and sold the product in Missouri. It goes without saying that merely selling a product in a state cannot confer general jurisdiction, or else plaintiffs could sue most every large pharmaceutical manufacturer for any reason in every state. The district court was underwhelmed by the plaintiff’s position too, holding that “[e]ven if Defendants marketed and sold [the product] in Missouri, that does not make their connections with the state ‘continuous and systematic as to render them essentially at home’ here.” Id. at *2.
Re-read this last quote, because it will make for a nice parenthetical the next time you file a motion like the one the defendants filed here.
The district court also rejected specific jurisdiction. As the court wrote,
Even when a court lacks general personal jurisdiction, it may still have specific jurisdiction to hear cases which ‘arise[ ] out of or relate [ ] to the defendant’s contact with the forum.’ . . . In other words, for such jurisdiction to attach, the defendant’s ‘suit-related conduct must create a substantial connection with the forum [s]tate.’”
Id. at *1 (quoting Bauman, 134 S. Ct. at 754, and Walkden v. Fiore, 134 S. Ct. 1115, 1121 (2014)). The lack of specific jurisdiction was a pretty easy decision for the district court, too. Again, the defendants’ only Missouri contact was that they sold the product there, but the plaintiff “fail[ed] to show how these contacts with Missouri relate to the causes of action in this suit, given that [the plaintiff’s children] were both born in Nebraska.” Id. at *2. To have specific personal jurisdiction, the dispute has to have arisen from the defendant’s forum contacts, which the plaintiff obviously could not show here.
Put Clarke v. Pfizer in the win column. The takeaway point is that merely selling a product in the jurisdiction does not make a corporation “at home” there, and that is how we see ourselves using this order going forward.