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We have never been sued in Hawaii.  At least not yet.  It could be that someday someone will call us to task for eating too much shave ice or using the word “mahalo” incorrectly.  But so far we have traversed the Aloha State unscathed by legal exposure.  Our favorite Hawaiian island is Kauai, the Garden Isle (not to be confused with the Garden State, New Jersey), and we count hiking Kauai’s Waimea Canyon as one of the highlights of our vacation lives. 

The defendants in Yamashita v. LG Chem, Ltd., No. 20-17512, 2023 U.S. App. LEXIS 5268 (9th Cir. Mar. 6, 2023), were not so fortunate.  They got sued, but the news here is that the district court dismissed the claims for lack of personal jurisdiction, and the Ninth Circuit affirmed.  Moreover, the Ninth Circuit’s opinion very helpfully clarifies the Supreme Court’s most recent opinion on personal jurisdiction, Ford v. Montana

We wrote on the Supreme Court’s recent activity on personal jurisdiction just one week ago.  In a nutshell, the Supreme Court decided Bauman in 2014 and held that general personal jurisdiction would lie only where the defendant was “at home,” which for a corporation generally means the state of incorporation or its principal place of business.  By limiting general personal jurisdiction to those places, Bauman struck a blow against forum-shopping plaintiffs.  For specific personal jurisdiction, we have credited the Supreme Court’s opinion in Bristol-Myers Squibb in 2017 as restoring discipline in cases involving non-resident defendants and striking another blow against litigation tourism. 

Then came Ford, which held (in a case involving resident plaintiffs, i.e., not forum shoppers) that a court could take personal jurisdiction over claims that “arise out of or relate to” the defendant’s forum contacts.  That gloss on specific personal jurisdiction is not new, but what Ford added is that “arise out of” and “relate to” are alternatives, with “relate to” allowing a pathway to jurisdiction even absent a direct, causal nexus between the defendant’s forum contacts and the plaintiff’s claims.  In our view, the practical consequence of Ford is that forum residents bringing claims arising within the forum receive some leeway in establishing specific personal jurisdiction over non-resident defendants. 

The Supreme Court famously cautioned, however, that “relate to” does not mean “anything goes.”  Ford Motor Co. v. Montana Eighth Jud. Dist., 141 S. Ct. 1017, 1026 (2021).  To the contrary, the “relate to” prong still requires a close connection between the forum contacts and the injury.  In Ford, the plaintiffs resided in the forum and alleged injury in the forum, and the defendant had extensively marketed, sold, and serviced the exact product models at issue in the forum.  That was enough, even though the plaintiffs had purchased their specific cars in other states. 

The Ninth Circuit’s opinion in Yamashita provides a very useful comparison.  A Hawaii resident alleged an injury from a lithium battery that allegedly malfunctioned in a consumer device.  One defendant, however, was in South Korea and the other was a Delaware corporation with its principal place of business in Georgia.  Yamashita, at *6-*7.  Because neither defendant was “at home” in Hawaii (thus no general personal jurisdiction), the primary issue was specific personal jurisdiction. 

But unlike Ford, this forum resident alleging an injury within the forum fell short.  The plaintiff cited four “contacts”:  First, the defendants shipped products through the port of Honolulu, and some contained lithium batteries.  Second, one defendant sold residential solar batteries (i.e., a different product) in Hawaii.  Third, various consumer products sold in Hawaii contained the defendants’ lithium batteries.  Fourth, a third-party website sold the defendants’ batteries throughout the Internet-connected world, presumably including Hawaii. 

None of those contacts supported specific personal jurisdiction.  The shipment of products through the port of Honolulu constituted purposeful availment of the laws of Hawaii, but the record did not show whether any of those shipments included the battery model at issue.  The sale of residential solar batteries likewise was purposeful availment, but those were altogether different products, i.e., “as different as sedans and 18-wheelers.”  Id. at *20-*21.  Neither could satisfy the “arise out of” or “relate to” tests.

The other alleged contacts were even less relevant.  The sale of consumer products in Hawaii containing the defendants’ batteries (even if they were the exact same model as the battery at issue) shows only that the defendants placed their batteries in the stream of commerce somewhere.  The record did not show that the defendants “deliberately navigate[ ] the stream of commerce towards Hawaii, either by introducing these batteries into Hawaii [themselves] or by ‘creat[ing], control[ling], or employ[ing] the distribution systems’ which does so.”  Id. at *14 (quoting Asahi Metal).  Allegations that the defendants sold the batteries through a third-party website were not purposeful availment either.  The defendants denied that they authorized such third-party sales, and even if they had, there was no indication they targeted Hawaii.

The Ninth Circuit concluded that the plaintiff’s claims clearly did not “arise out of” these forum contacts, since there was no but-for causation link.  The plaintiff did not allege that the defendants shipped the subject battery into the port of Honolulu, and the one defendant’s solar batteries sold in Hawaii were completely different.  Id. at *19-*20.  The claims did not “relate to” the forum contacts either.  As the Ninth Circuit observed, “There is little reason to believe that either firm’s port contacts or [one firm’s] solar contacts have anything to do with Hawaii residents’ acquisition of [these particular] lithium-ion batteries.” 

The cherry on top is that the Ninth Circuit also affirmed the district court’s order denying jurisdictional discovery as unjustified:  “In sum, Yamashita has no viable route to establish personal jurisdiction.  Jurisdictional discovery would be little more than a fishing expedition seeking support for jurisdictional theories one of which is farfetched, and the other of which [the defendants] have specifically denied via sworn statements. . . .  [H]e has only a mere hunch that jurisdictional discovery will allow him to meet his burden.”  Id. at *25-*26. 

We like Yamashita because we take seriously the Supreme Court’s admonition in Ford that its opinion “does not mean anything goes.”  Whatever that means, we know at least two things in the Ninth Circuit.  First, while Ford might allow some leeway for forum residents alleging a forum injury, there are limits.  Mr. Yamashita resided in Hawaii and alleged an injury in Hawaii, but he still could not haul these defendants into Hawaii’s courts.  Second, to justify specific personal jurisdiction, a plaintiff’s claims must have a close connection to the defendant’s forum contacts, if not a but-for causal nexus.  This should certainly preclude the blatant forum shopping at which Bauman and Bristol-Myers Squibb took aim.