Today the Supreme Court agreed to take another shot at “stream of commerce” personal jurisdiction in two automotive cases. Here are the case pages at SCOTUSBlog: Ford Motor Co. v. Bandemer, No. 19-369, and Ford Motor Co. v. Montana Eighth Judicial District Court, No. 19-368. The decisions being appealed are Bandemer v. Ford Motor Co., 931 N.W.2d 744 (Minn. 2019), and Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 443 P.3d 407 (Mont. 2019).
Neither case involves the kind of litigation tourism that we frequently discuss on this Blog. Rather, both cases involve variants of a set of facts that is relatively common in cases involving motor vehicles: The plaintiff was injured while using a vehicle that was not purchased in the state where the accident occurred. Oftentimes the vehicle has changed hands several times since it was initially sold in some other state, or else the plaintiff was responsible for bringing it into the state. Nor was the vehicle in question manufactured, designed, or repaired by the defendant in the state where the injury occurred and suit was brought. There is no basis for general jurisdiction because the defendant vehicle manufacturer was neither incorporated nor had a principal place of business in the state. The defendant had plenty of branded dealerships in the state, but those dealerships had nothing to do with the car in which the plaintiff was injured.
Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), was pretty clear that, for there to be specific personal jurisdiction, “the suit must arise out of or relate to the defendant’s contacts with the forum.” Id. at 1780. “[W]hat is missing” in BMS was “a connection between the forum and the specific claims at issue.” Id. at 1781. Likewise, in Walden v. Fiore, 571 U.S. 277 (2014), the Court held that “the defendant’s suit-related conduct must create a substantial connection with the forum State.” Id. at 284.
It’s hard to see how, given these holdings, that such plaintiffs have a jurisdictional basis for the suit, and we discussed the probable demise of stream of commerce jurisdiction here, shortly after BMS. However, we are now talking about plaintiffs who are suing in their home states where their injuries occurred. That makes them a lot more sympathetic than our clients’ mass tort litigation tourist opponents, all of whom have readily available (but not as pro-plaintiff) alternative fora. Will personal jurisdiction really require auto accident plaintiffs to sue manufacturers in the manufacturers’ “home” states, unless those plaintiffs bought their cars new in the states where they live? Courts have split all over the place on this issue, and our post-BMS cheat sheet includes defense-side wins.
We would have preferred that the Court clarify just what the specific personal jurisdiction “arising from”/”relating to” test means in a nationwide class action, but those cases move slower than individual auto accident cases like these two – so here we are. Whatever the Supreme Court holds in these cases about the need for a causal connection between the defendant’s in-state contacts and the plaintiff’s claimed injuries will also determine the extent to which litigation tourists will be able to sue our clients in places like Philadelphia or St. Louis (to name two). We’ve stated our preferred test in these situations – based on the BMS holding about “loose and spurious” forms of ersatz general jurisdiction – here. We’ll see what happens.