We wrote a few months ago about what you will see from the plaintiffs’ side as they try to evade the Supreme Court’s opinion in BMS v. Superior Court.  That opinion has combined with Bauman to reset personal jurisdiction and restore fairness to a system that had gotten out of whack, particularly in the mass tort world in which we often dwell.  Plaintiffs have resisted this reset, even though there is no rational reason why they should.  A more disciplined approach to personal jurisdiction imposes absolutely no burden on plaintiffs, who remain free to sue where the defendants are “at home” or (if different) where the operative facts occurred with regard to those defendants.  The resistance comes from their attorneys, who would prefer to concentrate masses of case in fewer jurisdictions of their choosing so they can make more money with less effort.  We are not judging; they are merely exploiting the incentives built into our civil litigation system.

So what is in their personal jurisdiction playbook? We reported before that plaintiffs will try to stretch even the most tenuous forum contacts into specific personal jurisdiction.  Or they will assert that defendants “consented” to jurisdiction in a particular state through such routine activities as registering to do business.  If those do not work, the fallback position will always be to request “jurisdictional discovery,” even when the facts relevant to forum contacts are either undisputed or are already within the plaintiffs’ control.

Plaintiffs recently added to those tactics in a hernia mesh MDL in New Hampshire, In re Atrium Medical Corp. C-Qur Mesh Products Liability Litigation, No. 16-md-2753, 2017 WL 5514193 (D.N.H. Nov. 14, 2017), where the issue was whether the court had personal jurisdiction over a holding company based in Sweden.  The company did not make or sell the products in question, and it was undisputed that the company had no direct contacts with the United States.  Of course, the plaintiffs sued the device manufacturers too, and those companies did not contest jurisdiction in New Hampshire.  But wanting deeper pockets in which to reach, or simply to increase their nuisance value through harassment, the plaintiffs opposed the holding company’s motion to dismiss on multiple grounds.

First, the plaintiffs argued that the Swedish company waived its personal jurisdiction defense by participating in the MDL and complying with the court’s initial case management orders.  That argument was obviously frivolous.  The Swedish company asserted the lack of personal jurisdiction as an affirmative defense in its answer and simultaneously filed a motion to dismiss on that basis.  It is certainly possible for a defendant to waive its personal jurisdiction defense, but the Federal Rules allow a defendant to preserve a personal jurisdiction defense by way of answer (unlike some states).  The Swedish company did that, and it also moved to dismiss as soon as it answered.  That is not a waiver.  Id. at *2.

Second, the plaintiffs argued that the Swedish company was judicially estopped from contesting jurisdiction because the company participated in product liability cases in New Hampshire and California and had itself sued someone in Delaware state court.  This argument borders on frivolous as well.  Judicial estoppel prevents litigants from taking a contested legal position in one case to gain an advantage then taking the opposite position in another case to gain an advantage there, too.  A common example is a plaintiff who discharges his debts in bankruptcy by representing that he has no product liability claims, but then turns around and represents to another court that he actually has a claim by filing a complaint.  You can’t do that.  Another example, which we wrote about here, is when a plaintiff defeats preemption by arguing that a drug manufacturer’s label change was voluntary, but then turns around and argues later that the label change was not a subsequent remedial measure because it was actually mandatory.  That’s wrong, too.  Here, the Swedish company was neither talking out of both sides of its mouth nor trying to gain an unfair advantage.  There are many reasons why a defendant would voluntarily submit to a court’s jurisdiction in one case but not in another, especially when the rules have recently changed.  Moreover, if the plaintiffs were correct, a defendant who voluntarily submitted to personal jurisdiction in any state would be permanently estopped from asserting the defense anywhere and everywhere.  Ridiculous.  The court did not think much of the argument either. Id. at *3.

Third, the plaintiffs argued that the other defendants’ forum contacts could be attributed to the Swedish company because the Swedish company assumed responsibility for the other companies’ liabilities and because the companies were alter egos or agents of each other.  This version of “piercing the corporate veil” is very difficult for plaintiffs to satisfy, and while the plaintiffs gained some traction with this argument, they are hardly out of the woods yet.  The rules as applied in an MDL are a little different, and because we have never seen them set forth quite so clearly, we will repeat them here:

In multi-district litigation cases . . . the [specific personal jurisdiction] inquiry is often more complicated. In multi-district litigation based on diversity jurisdiction, ordinarily personal jurisdiction in the transferee court is based on the jurisdiction of the transferor court.  The transferee court then separately applies the state law pertaining to personal jurisdiction applicable in each of the transferor courts.  The transferee court, however, conducts “this analysis according to the law not of the transferor circuit,” but rather according to the law of the circuit in which it sits.

2017 WL 5514193, at *4 (citations omitted).  In other words, an MDL court applies the long-arm statute of the state in which the case was initially filed, but ultimately determines personal jurisdiction under the precedent of the circuit in which it sits.  There are also issues around personal jurisdiction over out-of-state defendants when MDL judges permit “direct filing” into multidistrict litigation, which we discussed at some length here.  This is one reason why the venue of an MDL, as selected by the J.P.M.L., matters.

The court also set forth the various procedural approaches to deciding a personal jurisdiction challenge: The court can determine whether the plaintiff has made a mere prima facie showing that personal jurisdiction exists, or it can conduct a full-blown evidentiary hearing and decide personal jurisdiction on a preponderance-of-the-evidence standard.  A third option falls in between these two ends of the spectrum.  Under the “intermediate standard,” also known as the “likelihood standard,” the court can weigh evidence and find “whether the plaintiff has shown a likelihood of the existence of each fact necessary to support personal jurisdiction.” Id. at **4-5.

The district court decided it would apply the “intermediate standard,” but would do so only after allowing additional discovery. That’s right—jurisdictional discovery.  We have expressed our opinion on jurisdictional discovery—we don’t think that it will make any difference except in the most exceptional cases and should not be allowed.  We also think that jurisdictional discovery is an area appropriate for cost-shifting under Rule 26(c)(1)(B).  This court, however, is allowing it.  But not the oppressively overreaching discovery that, of course, the plaintiffs proposed, which the court rejected as “broader than necessary to address the jurisdictional issues that have arisen.” Id. at *9.  Instead, the court directed the plaintiffs to serve discovery “focused on the issues,” which presumably includes the agency and alter ego theories that the plaintiffs advanced. Id. The discovery many or may not make any difference.  Only time will tell, but either way, the DDL Blog will be monitoring.

We have not been shy in predicting that Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017) (“BMS”), and Daimler AG v. Bauman, 134 S. Ct. 746 (2014) (“Bauman”), should restrain certain abusive class action practices – specifically those involving attempts to bring multi-state class actions in any location other than where the defendant is “at home” and therefore subject to general personal jurisdiction under Bauman.  Note use of “the.”  A nationwide class purporting to sue multiple defendants “at home” in different states shouldn’t be possible at all, as BMS makes crystal clear that each defendant’s personal jurisdiction must be determined separately.

For this reason, we have been careful to note the class action nature of any case that appears on our original post-Bauman and our current post-BMS cheat sheets.  The first of these cases is Demaria v. Nissan N.A., Inc., 2016 WL 374145 (N.D. Ill. Feb. 1, 2016), an automotive consumer fraud case with eighteen class representatives from sixteen states.  Id. at *1.  Following Bauman, the court found no general jurisdiction, also rejecting a claim of consent to general jurisdiction by registering to do business in the forum state.  Id. at *6.  Specific jurisdiction failed as to every would-be class representative except the one resident of the forum state. Id. at *7.  Plaintiffs also raised a “pendent personal jurisdiction” claim similar to that later rejected in BMS:

Under the circumstances of this case, where each plaintiff’s claim is predicated on the law of the particular state where he or she purchased a car and the claims of the other plaintiffs as alleged remain unrelated to anything that transpired in [the forum state], imposing personal jurisdiction for all of the claims because specific jurisdiction may lie as to this one plaintiff’s claims would run afoul of the traditional notions of fair play and substantial justice.

Id. at *8.  The multi-state class action was no more.  “The consumer protection claims for violation of the laws of states other than [the forum state] . . . are dismissed for lack of personal jurisdiction.”  Id. at *14.

Then came Matus v. Premium Nutraceuticals, LLC, 2016 WL 3078745 (C.D. Cal. May 31, 2016), which involved a California consumer fraud class action brought by an in-state resident.  After finding no general jurisdiction under Bauman, id. at *2, the court also found no specific jurisdiction.  The defendant’s website was not oriented towards any particular state, nor did plaintiff claim to have used it to purchase anything from the defendant.  Id. at *3.  Simply “purchas[ing the product] through an unnamed reseller” – that is to say, stream of commerce − was insufficient, notwithstanding other product sales to other in-state residents.  Id. at *4.

Back in Illinois, Bauman also did in a multi-state junk fax class action in Kincaid v. Synchrony Financial, 2016 WL 4245533 (N.D. Ill. Aug. 11, 2016).  Anticipating BMS, the court refused to find specific jurisdiction based on forum contacts with the “putative class members” in the forum state counting as “suit-related contacts.”  Id. at *2.  Plaintiffs’ general jurisdiction claims fell far short of the “outsized proportion” of forum contacts required to establish an exceptional case under Bauman.  Id. at *3.  Nor did the defendant’s initiation (as a plaintiff) of unrelated litigation in the forum state create general jurisdiction.  Id.

Next, in Bauer v. Nortek Global HVAC LLC, 2016 WL 5724232 (M.D. Tenn. Sept. 30, 2016), “five Plaintiffs from four different states” brought a panoply of product liability-related claims against a non-resident defendant, purportedly as a class action.  Id. at *1. Bauman killed the out-of-state class representative’s claims, since there was nothing approaching exceptional case facts.  Id. at *6.  Specific jurisdiction failed because “units [that] were purchased and installed in [the class representatives’] respective . . . Home States” could not possibly “arise out of or relate to” any actions by the defendant in the forum state.  Id. at *6.  “[T]he Amended Complaint does not offer any factual allegations that the out-of-state Plaintiffs had any dealings with the Defendants in the” forum state.  Id. Therefore, “those Plaintiffs and the classes they represent will be dismissed.”  Id.

A third Illinois multi-state class action likewise failed in Demedicis v. CVS Health Corp., 2017 WL 569157 (N.D. Ill. Feb. 13, 2017).  This time, a forum plaintiff sought to assert “purely class-based claim[s] on behalf of others for violations of similar state consumer fraud statutes in other states.”  Id. at *3.  While that claim could have been decided on the basis of non-extraterritoriality (see our post here), Demedicis disposed of them on personal jurisdiction grounds:

Because specific personal jurisdiction is based on claims arising out of a defendant’s conduct within the forum state, this Court has no jurisdiction over claims based on out-of-state consumer fraud laws. . . .  As Defendants argue, “[p]ersonal jurisdiction over the defendant must be established as to each claim asserted.”  Here, Plaintiff has not established personal jurisdiction over the out-of-state claims as he is the sole connection between Defendants and Illinois.

Id. at 4-5 (citations omitted).

In Famular v. Whirlpool Corp., 2017 WL 2470844 (S.D.N.Y. June 7, 2017), nine would-be class representatives from nine states brought consumer protection claims against non-resident defendants.  Decided less than two weeks before BMS, Famular threw out all of the claims by non-resident class representatives against the non-resident defendants for lack of personal jurisdiction.  Anticipating BMS, Famular held that “the Court must determine whether there is general personal jurisdiction over each defendant” individually.  Id. at *3.  By then plaintiffs had given up arguing “exceptional case” general jurisdiction, and the court rejected their consent by virtue of registration to do business argument.  “[T]he Court agrees with defendants that . . . a foreign defendant is not subject to the general personal jurisdiction of the forum state merely by registering to do business with the state, whether that be through a theory of consent by registration or otherwise.”  Id. at *4.  Famular also rejected specific jurisdiction under a “pendent personal jurisdiction” rationale.  Relying in part on Demaria, Famular recognized that “neither specific personal jurisdiction nor pendent personal jurisdiction allow[s a court] to hear plaintiffs’ claims against the foreign defendant based on defendant’s actions occurring solely outside the forum state.  Id. at *7.  Good by non-forum-state class action allegations.

BMS, of course expressly held that specific personal jurisdiction must be decided as to each plaintiff and each defendant separately, so that neither the presence of other, in-state plaintiffs making similar claims, nor the presence of an in-state defendant against which personal jurisdiction could properly be asserted permitted the assertion of personal jurisdiction by non-resident plaintiffs against non-resident defendants.  137 S. Ct. at 1781 (lack of specific jurisdiction “remains true even when third parties (here, the plaintiffs who reside in California) can bring claims similar to those brought by the nonresidents”), 1783 (personal jurisdiction requirements “must be met as to each defendant over whom a state court exercises jurisdiction”; the “bare fact” of a “contract[] with” an in-state resident “is not enough”).  We discussed BMS at length here.

After BMS, a consumer protection class action alleging “violations of the consumer protection laws of forty-eight additional [to the forum] states and two territories” was trimmed to just the forum state.  Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., 2017 WL 3129147, at *1 (E.D. Pa. July 24, 2017).  There was no general jurisdiction against defendants not “at home” in the forum.  Id. at *4.  Nor could defendants that did not sell in the forum be subject to specific jurisdiction.  Id. at *7-8 (even if stream of commerce jurisdiction is viable, it cannot lie without in-state sales).  All of the claims asserted under the laws of the 50 non-forum jurisdictions likewise bit the dust.

Only [plaintiffs’] Pennsylvania Claims arise out of or relate to Selling Defendants’ sales of generic drugs in Pennsylvania. . . .  [T]he Non-Pennsylvania Claims do not arise out of or relate to any of Selling Defendants’ conduct within the forum state.  Accordingly, the Court cannot exercise specific jurisdiction over the Non-Pennsylvania Claims brought against Jurisdiction Defendants.

Id. at *9 (following Demaria and Demedicis).

Another multi-state (four non-forum jurisdictions) consumer class action was trimmed in Spratley v. FCA US LLC, 2017 WL 4023348, at *1 (N.D.N.Y. Sept. 12, 2017).  General jurisdiction by consent based the non-forum defendant’s registration to do business was rejected.  Id. at *3-4.  BMS precluded adjudication of claims asserted by the non-resident classes.  “[T]he out-of-state Plaintiffs have shown no connection between their claims and [defendant’s] contacts with the forum state.  Therefore, the Court lacks specific jurisdiction over the out-of-state Plaintiffs’ claims.”  Id. at *7.  For similar reasons, plaintiffs’ “different” assertion of “pendent jurisdiction” was also rejected.  Id. (following Famular and Demaria).

In an anti-trust case, In re Dental Supplies Antitrust Litigation, 2017 WL 4217115 (S.D.N.Y. Sept. 20, 2017), non-forum class action allegations based on sales made by a defendant’s independent intermediate sellers were dismissed under Bauman and BMS.  General jurisdiction, by this time was not even argued.  Id. at *3.  The would-be class representatives did not buy any of the defendant’s products in the forum state.  Id. at *6.  BMS precluded assertion of personal jurisdiction based merely on the defendant’s contract with an independent distributor, which in turn sold into the forum state.  Id. at *9. Most significantly, Dental Supplies firmly rejected plaintiffs’ argument that personal jurisdiction requirements should be loosened in the class action context.  “A putative class representative seeking to hale a defendant into court to answer to the class must have personal jurisdiction over that defendant just like any individual litigant must.”  Id. at *6 (quoting Newberg on Class Actions §6:25 (5th ed. 2011)).

Plaintiffs attempt to side-step the due process holdings in [BMS] by arguing that the case has no effect on the law in class actions because the case before the Supreme Court was not a class action.  This argument is flawed.  The constitutional requirements of due process does not wax and wane when the complaint is individual or on behalf of a class.  Personal jurisdiction in class actions must comport with due process just the same as any other case.

Id. at *9 (citation omitted).

Most recently, in McDonnell v. Nature’s Way Products, LLC, 2017 WL 4864910 (N.D. Ill. Oct. 26, 2017), the plaintiffs brought class action claims under “seven states’ consumer fraud laws” in addition to the forum state, against a non-resident defendant.  Id. at *1. Bauman and BMS killed the non-forum claims:

[A]ny injury [that non-resident plaintiffs] suffered occurred in the state where they purchased the products. Because the only connection to [the forum] is that provided by [resident plaintiff’s] purchase . . ., which cannot provide a basis for the Court to exercise personal jurisdiction over the claims of nonresidents where [defendant] has no other connection to this forum, the Court dismisses all claims . . . brought on behalf of non-[forum]residents or for violations of [other states’ consumer protection] law without prejudice.

Id. at *4.

Thus, we are now running out of fingers for the cases that have refused, on post-Bauman personal jurisdictional grounds to allow class actions where the effect would be to allow non-resident class members to sue a non-resident corporate defendant.  There is good reason for this.  The Federal Rules of Civil Procedure, and in particular Rule 23, being “rules” are prohibited by the Rules Enabling Act from “abridg[ing], enlarg[ing] or modify[ing] any substantive right.”  28 U.S.C. §2072(b).  See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011) (“[b]ecause the Rules Enabling Act forbids interpreting Rule 23 to ‘abridge, enlarge or modify any substantive right,’ a class cannot be certified on the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual claims”) (citations omitted).  Jurisdiction is, if anything, even more “substantive” than the defenses in Dukes.  Without jurisdiction, a plaintiff cannot litigate anything at all.  Nothing could be more “substantive” than to create jurisdiction where none would otherwise exist.

Fundamentally, this is why we disagree with the one decision, Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017) that goes the other way.  Plaintiffs in Fitzhenry-Russell purported to bring a “nationwide” class action, even though all of them were California residents and all the causes of action were under California law . Id. at *1, 5.  The court held that because “citizenship of the unnamed plaintiffs is not taken into account for personal jurisdiction purposes,” it was perfectly all right for the action to adjudicate claims by non-resident class members – who made up a “lopsided” 88% of the class – against a non-resident corporation.  Id. at *5.  Fitzhenry-Russell refused an “extension of [BMS] to class actions” by supposing that “this may be one of the those contexts” in which “[n]onnamed class members . . . may be parties for some purposes and not for others” to jurisdiction.  Id.  That’s all there is – a “may be.”  Moreover, the case quoted for that proposition, Devlin v. Scardelletti, 536 U.S. 1, 9-10 (2002), dealt with intervention, not any form of jurisdiction.

Fitzhenry-Russell cited no class action case – let alone one since Bauman (cf. In re Chinese Manufactured Drywall Products Liability Litigation, 894 F. Supp. 2d 819, 858 (E.D. La. 2012) (severing non-resident class member claims in identical situation pre-Bauman), aff’d, 742 F.3d 576 & 753 F.3d 521 (5th Cir. 2014)) – that had permitted personal jurisdiction in a litigation tourist situation, where non-resident absent class members were suing a non-resident corporation.  It found Plumbers’ Local. 690 “unpersuasive” because it supposedly contained “no analysis” of BMS.  2017 WL 4224723, at *5 n.4.  That is a misleading characterization because Plumbers’ Local. 690 devotes four full paragraphs to the issue, although discussing Demaria and Demedicis rather than BMS.  2017 WL 3129147, at *9.  Moreover, other than the footnote reference to Plumbers’ Local. 690, Fitzhenry-Russell addresses neither the other class action personal jurisdiction cases we have discussed in this post (although it must have been aware of at least Demaria and Demedicis) nor the Rules Enabling Act.  We think that the adjective “unpersuasive” more properly applies to Fitzhenry-Russell itself.

Thus, based on what our research has found, we think that our prediction, made shortly after Bauman, that personal jurisdiction would become a major obstacle to nationwide class actions based on state laws is accurate and has even more force after BMS.  Whenever faced with a state-law class action that is structured so that a non-resident (that is, not “at home” under Bauman) corporate defendant would be facing claims brought by non-resident class members (whether named or unnamed), the defendant should strongly consider moving to dismiss that non-resident claims for lack of personal jurisdiction.

Literally for decades plaintiffs in mass torts have employed the business model of flooding jurisdictions seen as friendly to them with more solicited plaintiffs than any court system can possibly handle.  They have employed every forum-shopping trick in the book to trap defendants in these jurisdictions, which usually have no relationship to any party.  After swamping the courts, they finish the job by advocating procedural shortcuts, such as abbreviated discovery and consolidated trials, that make it virtually impossible for defendants to undertake anything approaching an effective defense.

The result is tens, if not hundreds, of thousands of non-resident plaintiffs filing suit in favored(?) fora having nothing to do with either the parties or the supposed disputes.

Having thus sown the jurisdictional wind, however, the other side is now on the verge of reaping the jurisdictional whirlwind.  Their jurisdictional gamesmanship is circling the drain, following the United States Supreme Court’s decisions in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), and before that in Daimler AG v. Bauman, 134 S. Ct. 746 (2014) (“Bauman“).  Without personal jurisdiction over the defendants, plaintiffs can’t get to first base.  Let them explain to all these clients, who probably wondered about having their suits pending in far-off places to begin with, why all is for naught and they have to start over again (assuming they can at all – not every state tolls the statute of limitations) in a more logical forum they could have been in all along.

Two recent cases illustrate the yawning precipice into which so many litigation tourists find themselves staring.

The first is the Illinois Supreme Court’s decision a few weeks ago in Aspen American Insurance Co. v. Interstate Warehousing, Inc., ___ N.E.3d ___, 2017 WL 4173349 (Ill. Sept. 21, 2017), which we mentioned briefly in our recent post on Judge Herndon’s blowing up of a bunch of misjoined complaints dragged out of St. Claire County.  Aspen American wasn’t a product liability case at all – but it just as well could have been.  A litigation tourist insurance company sued on a subrogated claim in Chicago (Cook County).  The insured was a New Jersey company that claimed damages when a warehouse owned by the defendant allegedly collapsed, with the end result being that perishable goods owned by the Jersey entity … well, perished.  2017 WL 4173349, at *1.

The only trouble was that the warehouse wasn’t in Illinois either – it was in Michigan.  Id. at *1.  The defendant owned another warehouse in Illinois, as it did in many other states, but the plaintiff had never stored anything there.  Id.

After losing below, the non-resident defendant successfully argued that the non-resident plaintiff couldn’t obtain personal jurisdiction over it for litigation concerning an accident that also occurred out of state.

The Illinois Supreme Court’s decision was unanimous.

After Bauman and BMS, that the defendant conducted unrelated business – operating a different warehouse – in Illinois did not come close to a basis for personal jurisdiction.  The defendant had operated the Illinois warehouse for decades, but mere “continuous and substantial” business in a state isn’t enough anymore for general jurisdiction.  Aspen American, 2017 WL 4173349, at *3.  A warehouse wasn’t enough:

[T]o comport with the federal due process standards laid out in [Bauman] . . ., plaintiff must make a prima facie showing that defendant is essentially at home in Illinois.   This means that plaintiff must show that defendant is incorporated or has its principal place of business in Illinois or that defendant’s contacts with Illinois are so substantial as to render this an exceptional case.  Plaintiff has failed to make this showing.

Id. at *4.  If operating one warehouse was enough for jurisdiction, “then defendant would also be at home in all the other states where its warehouses are located.  The Supreme Court has expressly rejected this reasoning.”  Id.

Further, the defendant’s registration to do business in Illinois, as it had to do to operate that other warehouse, likewise was insufficient to support jurisdiction over a non-resident’s suit for out-of-state injuries.  “[T]he fact that a foreign corporation has registered to do business under the Act does not mean that the corporation has thereby consented to general jurisdiction over all causes of action, including those that are completely unrelated to the corporation’s activities in Illinois.”  Id. at *5,

So, why did Aspen American attract the attention of amici Illinois Trial Lawyers Association and the American Association for Justice, as well as several major asbestos defendants?  Id. at *2.  It all goes back to that gathering jurisdictional whirlwind.  Cook, Madison, and St. Clair counties are three of plaintiffs’ favorite litigation dumping grounds.  Indeed, as we mentioned in our other post, the same intermediate Illinois appellate court that got spanked in Aspen American decided M.M. v. GlaxoSmithKline LLC, 61 N.E.3d 1026 (Ill. App. 2016), less than two months later (Aspen on June 30, 2016, and M.M. on August 26 of the same year).  M.M. decided that a single clinical trial site was enough for jurisdiction, which means that it could be sued in “all the other states where” it recruited for such trials.  Aspen American unanimously rejected such broad jurisdictional arguments in the context of warehouses – we don’t see much difference.

Good luck with that now. The jurisdictional whirlwind is coming for the litigation tourist Rivieras of Illinois.

It’s already sweeping away the talc swamp in Missouri.

That’s the other decision we want to discuss, Fox v. Johnson & Johnson, ___ S.W.3d ___, 2017 WL 4629383 (Mo. App. Oct. 17, 2017).  Fox was an appeal from one of those gigantic talc verdicts we’ve all read about.  The plaintiff was a non-resident (we don’t know where from, and that doesn’t matter), who found her way into St. Louis by virtue of all that jurisdictional gamesmanship we mentioned earlier.  She was one of 65 plaintiffs from all over the country joined in the same complaint with one St. Louis resident.  Id. at *1.  However, after BMS, that jurisdictional subterfuge – and the boxcar verdict it produced – is for naught.

[A] non-resident plaintiff must establish an independent basis for specific personal jurisdiction over the defendant in the state. . . .  [S]pecific personal jurisdiction requires a connection between the forum state and the specific claims at issue.  “When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the state.”  The fact that resident plaintiffs sustained similar injuries does not support specific jurisdiction as to non-resident claims.  The parties agree that BMS is controlling here, but they disagree on the resulting outcome.

Id. at *2 (BMS citations omitted).  Another unanimous decision.

Plaintiff in Fox wanted to scurry about to see if she could find talc-related contacts between the defendant and an in-state company with which the defendant allegedly did business.  Id.  The court in Fox refused to allow such ex post facto discovery and argument.  Id. at *3 (“we find no authority supporting [plaintiff’s] request to rewind the case so as to supplement the pre-trial record to establish jurisdiction under the new standard”).  Poof.  A half billion dollars or so in talc verdicts just went up in smoke.

Further, that kind of discovery doesn’t advance the ball under BMS.  The contacts that matter are the defendant’s own relationship with the forum – not that the defendant had a relationship with somebody else that was in turn a resident of the forum.  This point was litigated in BMS.  The BMS plaintiffs themselves (like the 63 non-resident plaintiffs in the complaint in Fox) had no contacts with California.

[T]he nonresidents were not prescribed [the drug] in California, did not purchase [the drug] in California, did not ingest [the drug] in California, and were not injured by [the drug] in California.  The mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug] in California − and allegedly sustained the same injuries as did the nonresidents − does not allow the State to assert specific jurisdiction over the nonresidents’ claims.

BMS, 137 S. Ct. at 1781.  Nor did the defendant’s allegedly contracting with a drug wholesaler that was, in turn, located in California:

[Plaintiffs] contend that [defendant’s] “decision to contract with a California company to distribute [the drug] nationally” provides a sufficient basis for personal jurisdiction. . . .  [T]he requirements of [personal jurisdiction] must be met as to each defendant over whom a state court exercises jurisdiction.  In this case, it is not alleged that [defendant] engaged in relevant acts together with [the resident defendant] in California. . . .  The bare fact that [defendant] contracted with a California distributor is not enough to establish personal jurisdiction in the State.

Id. at 1783 (citations and quotation marks omitted).  “[C]ontracting with” an in-state entity doesn’t move the jurisdictional needle.

That a separately owned/incorporated in-state subcontractor was involved in some of the steps by which a product was prepared to enter the stream of commerce doesn’t cut it.  Whether it’s a frantic search for a Missouri talc subcontractor, or for some similar Pennsylvania subcontractor to try to prevent the coming whirlwind from decimating the Philadelphia litigation business, such efforts are highly unlikely to succeed.  What kind of facts are needed to circumvent the usual limits on personal jurisdiction?  Bauman told us.  Doing so requires an “exceptional case.”  134 S. Ct. at 761 n.18 (emphasis added).  Ordinary business relationships with third parties who themselves reside in the state aren’t going to be enough to support litigation tourism.  “Exceptional” cases that would expand specific jurisdiction under BMS should be about as frequent as “exceptional” cases that expand general jurisdiction under Bauman.  It takes something exceptional to make an exception to the constitutional Due Process limits to personal jurisdiction.

This is why we saw asbestos amici descend on Aspen American.  Non-resident asbestos plaintiffs aren’t going to be able, any more, to obtain personal jurisdiction over the great majority of the scores of defendants that they sue – only those few unfortunate enough to be “at home” in the forum.  The same would be true in a multi-defendant suit involving prescription medical products.  And what happens when those unfortunate few viable defendants find themselves unable to pursue cross-claims or otherwise obtain relief against absent parties, simply because the plaintiff didn’t sue in state where s/he was injured?  “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”  28 U.S.C. §1404(a); see, e.g., Schmidt v. Leader Dogs for the Blind, Inc., 544 F. Supp. 42, 47 (E.D. Pa. 1982) (“[d]efendant’s inability to implead or cross-claim herein against the medical defendants dismissed from this lawsuit is a determinative factor”; §1404(a) transfer of venue granted).  It took us all of two minutes to find a cross-claim-based venue transfer decision; there are undoubtedly more.

The jurisdictional whirlwind is upon us. Toto, we’re not going to be in Madison County anymore.

Bexis gave a talk the other day at the Washington Legal Foundation on personal jurisdiction after last term’s United States Supreme Court decisions in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), and BNSF Railway Co. v. Tyrrell, 137 S. Ct. 1549 (2017) (“BNSF”).  One of the highlighted areas of emerging jurisdictional issues was MDL practice – specifically the MDL practice of allowing plaintiffs anywhere in the country to “direct file” actions into the MDL after it has been established – thereby bypassing the provisions of the MDL statute, 28 U.S.C. §1407(a) that “transfers shall be made by the judicial panel on multidistrict litigation.”

We thought we’d examine that a bit today.

Essentially, we don’t think that there is any jurisdictional basis for direct filing – except the defendants’ waiver of any jurisdictional challenge.  Initially, the MDL statute itself does not confer such jurisdiction.  The statute nowhere mentions direct filing, and in only one instance is an MDL judge (also called the “transferee court”) clothed with extraordinary jurisdictional powers.  That has to do with depositions.  See 28 U.S.C. §1407(b) (MDL judge “may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions”).

Whether or not the legal maxim “expressio unius est exclusio alterius” (express mention of one item implies the exclusion of others of the same ilk) should apply here, we seriously doubt that Congress intended to hide any jurisdictional elephants in MDL statutory mouseholes.  Cf. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 40-41 (1998) (refusing to imply MDL court jurisdiction to try transferred cases).  It “may or may not” be more efficient to allow direct filings, but the MDL statute does not so state, so “the proper venue for resolving that issue remains the floor of Congress.”  Id. at 40 (citations omitted).  We further note that the Judicial Panel on Multidistrict Litigation’s rule that has been interpreted as allowing direct filing, J.P.M.D.L.R 7.2(a), likewise does not mention jurisdiction – providing only that “[p]otential tag-along actions filed in the transferee district do not require Panel action.”

In BNSF (previously discussed here) the Supreme Court rejected an attempt to use a statute (the venue provision of the Federal Employees’ Liability Act) to create personal jurisdiction where it did not otherwise exist.  When Congress intends to expand jurisdiction (as opposed to venue) it “typical[ly]” does so by “authoriz[ing] service of process.”  137 S. Ct. at 1555 (list of examples omitted).  This statute did not expressly do so, and to the extent any prior precedent suggested otherwise, that precedent was obsolete:

[A]ll these cases . . . were decided before this Court’s transformative decision on personal jurisdiction in International Shoe Co. v. Washington, 326 U.S. 310 (1945).  See [Bauman], 134 S. Ct. [746], 761, n.18 (cautioning against reliance on cases “decided in the era dominated by” the “territorial thinking” of Pennoyer v. Neff, 95 U.S. 714 (1878)).

Id. at 1555-56 (citations modified).  We’ve already raised this cautionary note with respect to century-old precedent in jurisdiction by consent cases, but it applies more broadly.

Demise of their statutory arguments left the plaintiffs in BNSF with nothing but state law to rely on.  While the defendant “ha[d] over 2,000 miles of railroad track and more than 2,000 employees” in the state, that was insufficient to permit suit by non-resident plaintiffs under either general or specific jurisdictional principles:

[T]he business BNSF does in [the state] is sufficient to subject the railroad to specific personal jurisdiction in that State on claims related to the business it does in [the state].  But in-state business . . . does not suffice to permit the assertion of general jurisdiction over claims like [plaintiffs’] that are unrelated to any activity occurring in [the state].

Id. at 1559 (footnote omitted).

Turning to BMS, which was a mass tort worthy of a breaking news post, hundreds of plaintiffs filed in California to escape (among other things) an existing federal MDL.  Non-resident plaintiffs could not establish specific personal jurisdiction over a non-resident defendant, even though (like BNSF) resident plaintiffs could, and the non-residents might be able to sue a different defendant that was “at home” in that state.  “The primary focus of our personal jurisdiction inquiry is the defendant’s relationship to the forum State.”  137 S. Ct. at 1779.  Jurisdiction is “a consequence of the territorial limitations” on state power; therefore even a ‘convenient location for litigation’ may, as a consequence ‘of interstate federalism,’ be “divest[ed]. . . of its power to render a valid judgment.”  Id. at 1781 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980)).

Specific jurisdiction, as explained in BMS, requires “an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State.”  Id.  “[U]nconnected activities,” no matter how extensive, are irrelevant.  Id.  That “other,” in-state plaintiffs could bring suit was “an insufficient basis for jurisdiction,” as was the ability of the non-resident plaintiffs to sue other, in-state defendants.  Id. at 1781, 1783.  Jurisdictional requirements “must be met as to each defendant over whom a state court exercises jurisdiction.”  Id. at 1783 (citation and quotation marks omitted).  Where:

[t]he relevant plaintiffs are not [in-state] residents and do not claim to have suffered harm in that State[, and] all the conduct giving rise to the nonresidents’ claims occurred elsewhere[, i]t follows that the [state’s] courts cannot claim specific jurisdiction.

Id. at 1782 (citation omitted).  Mass tort plaintiffs have two choices after BMS:  they can all sue “in the States that have general jurisdiction” over a particular defendant, or “plaintiffs who are residents of a particular state . . . could probably sue together in their home States.”  Id. at 1873.

Returning to MDLs, as in BNSF, there is no “typical” jurisdictional provision anywhere in the MDL statute.  Unless a particular MDL happens to be located in a forum with “general jurisdiction” over a defendant, there is no constitutional basis for allowing plaintiffs anywhere in the country to file directly into the MDL and thereby bypass statutory procedures.  Further, since jurisdiction must exist “as to each defendant” individually, in MDLs with more than one major defendant (most MDLs), it is unlikely (albeit not impossible) for there to be any jurisdiction where all such defendants are “at home” so as to permit direct filing as a matter of constitutional Due Process.

Thus, the only jurisdictional basis for MDL direct filing is the acquiescence – and thus the waiver – of the defendant(s) being sued.  That is particularly dangerous in an MDL setting, as the recent decision in the Pinnacle Hip MDL litigation (discussed here) exemplifies.  See In re Depuy Orthopaedics, Inc., 870 F.3d 345 (5th Cir. 2017).  The defendants’ agreement to a direct filing order was – wrongly, a majority of the Court of Appeals held – interpreted as a waiver of jurisdictional objections.  Id. at 351-52.  As for the propriety of direct filing, there was no majority.  The lead opinion viewed direct filed cases as being “treated ‘as if they were transferred from a judicial district sitting in the state where the case originated.’”  Id. at 348 (quoting In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 2011 WL 1375011, at *6 (S.D. Ill. April 12, 2011)).  The first concurrence declined to reach the issue.  Id. at 356-57.  The second, concurring and dissenting, opinion would find direct filing invalid:

But for the possibility of a “global waiver” of personal jurisdiction, the [MDL court] had no claim to personal jurisdiction over the cases:  none of the plaintiffs’ surgeries occurred in [the state]; the plaintiffs aren’t [in-state] residents; and neither general nor specific jurisdiction exists over the [defendants] for purposes of these disputes.  For that reason, the district court relied solely on the “global waiver”. . . .  Petitioners are being forced to trial over their objections to personal jurisdiction.

By comparison, a scholarly opinion . . . in an MDL case resulted in dismissal of a nonresident defendant against which there was a “direct filed” case by a nonresident plaintiff.  In re Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, 2011 WL 1232352 (S.D. Tex. March 31, 2011).  The court first noted that the defendant’s agreement to transfer for purposes of pretrial proceedings was not inconsistent with and did not waive its personal jurisdiction challenge.  2011 WL 1232352 at *5–6.  Finding no waiver, the court then decided that it lacked personal jurisdiction over the non-consenting defendant based on [its] lack of minimum or relevant contacts with the [state in question]. 2011 WL 1232352 at *6–10.

Depuy Orthopaedics, 870 F.3d at 357.

This is a good place to start, so we examined the decisions cited by both sides.  Looking at Yasmin/Yaz, we were disappointed.  That decision doesn’t even discuss the jurisdictional ramifications of MDL direct filing.  Rather, as the first sentence of the opinion makes clear, “[t]his matter is before the Court for the purpose of resolving choice of law considerations.”  2011 WL 1375011, at *1.  The direct filing order at issue specified that direct filing would have no effect on choice of law.  Id. at *4 n.2, so the reference in Yasmin/Yaz to how direct filings were “treated” occurred in the context of deciding what “no effect” on choice of law meant:

As to the foreign direct filed cases, the choice of law decision is not as clear.  Foreign direct filed cases are filed in this Court pursuant to a direct filing order . . . [that] expressly provides that the parties’ direct filing agreement will not impact the choice of law that otherwise would apply to the direct filed actions.

In general, direct filing orders are beneficial to both parties because they streamline the litigation and help to eliminate the judicial inefficiency. . . .  However, direct filing orders also present difficult choice of law issues. . . .  The Court concludes that the better approach is to treat foreign direct filed cases as if they were transferred from a judicial district sitting in the state where the case originated.  For purposes of this analysis, the Court considers the originating state to be the state where the plaintiff purchased and was prescribed the subject drug.

Id. at *5-6 (citations omitted).  There is not one mention of personal jurisdiction in the entire Yasmin/Yaz opinion.

Turning instead to Heartland Payment, that case did involve a dispute over personal jurisdiction in a directly filed action.  See 2011 WL 1232352, at *4 (observing that “direct filings may present jurisdictional, venue, or related issues”).  The defendant moved to dismiss a direct filed action under Fed. R. Civ. P. 12(b)(2) on the ground that the state in which the MDL was situated had no personal jurisdiction over it.  Id. at *5.  March, 2011 was, of course, three years before Bauman was decided and even several months before the Supreme Court’s “at home” test debuted in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).  But even under the more lax standards of that time, personal jurisdiction did not lie simply because an MDL against the defendant happened to exist in the state in question.

As in Depuy Orthopaedics, the MDL plaintiffs in Heartland Payment first attempted to use the defendant’s agreement to direct filing as a waiver of personal jurisdiction.  2011 WL 1232352, at *7.  Unlike Depuy Orthopaedics, the MDL court in Heartland Payment rejected that argument.  Id.  As for specific jurisdiction, neither the defendant’s use of an in-state processing center nor its agreements with national credit card networks sufficed.  “[M]erely contracting with a resident of the forum state is insufficient to subject the nonresident defendant to personal jurisdiction in that state.”  Id. at *8.  Plaintiff did not even try to argue that the fortuitous, after-the-fact creation of an MDL in the jurisdiction could be a “minimum contact” justifying jurisdiction.  Without a basis for jurisdiction, the directly filed case had to be either transferred or, if the parties could not agree, dismissed.  Id. at *12, 14.

On the basis of these two cases, we’d have to give the edge to the dissent on the jurisdictional issue, since Heartland Payment decided the question at issue – the jurisdictional impact of MDL direct filing – while Yasmin/Yaz did not.  But is there anything else out there, other than these two opinions, decided two weeks apart, in 2011?

We took a look, but most of what we found were either MDL orders creating negotiated direct filing regimes, or cases, like Yasmin/Yaz, that dealt with the impact of direct filing on substantive choice of law issues.  See, e.g., In re Incretin Mimetics Products Liability Litigation, 2013 WL 12171761 (S.D. Cal. Nov. 13, 2013) (an example of the former); Wahl v. General Electric Co., 786 F.3d 491, 498-99 (6th Cir. 2015) (an example of the latter).  Other than that, it appears that the two 2011 precedents are pretty much all there is.  The issue was raised in In re New England Compounding Pharmacy, Inc. Products Liability Litigation, 2015 WL 178130 (D. Mass. Jan. 13, 2015), but mooted by plaintiffs refiling in their home jurisdiction and getting a JPMDL “tag along” order before it could be decided.  Id. at *1 n.3.  The court in In re Vioxx Products Liability Litigation, 478 F. Supp.2d 897, 904 n. 2 (E.D. La. 2007), noted the possibility that “the MDL forum” might not be able to “exercise personal jurisdiction over the defendant” in discussing direct-filed complaints, but that was an aside in another choice of law decision.  A direct-filed case was dismissed for lack of subject matter jurisdiction in In re Pradaxa (Dabigatran Etexilate Products Liability Litigation, 2014 WL 7145470, at *3 (S.D. Ill. Dec. 15, 2014), where the plaintiffs were from a foreign country – but personal jurisdiction was not discussed.  Thus, it appears that Depuy Orthopaedics and Heartland Payment are the only cases actually addressing personal jurisdiction in the context of direct-filed MDL actions.

In the context of an ordinary (non-MDL) transfer, the Supreme Court has sought to “ensure that the ‘accident’ of federal diversity jurisdiction does not enable a party to utilize a transfer to achieve a result in federal court which could not have been achieved in the courts of the State where the action was filed.”  Van Dusen v. Barrack, 376 U.S. 612, 638 (1964).  We think that this principle logically extends to personal jurisdiction – and to direct filed actions.

In MDLs that rest – as product liability litigation does – on state law and diversity of citizenship, there is no jurisdictional basis for direct filing of MDL actions other than the defendant’s waiver of their rights to assert lack of personal jurisdiction.  The Supreme Court’s recent jurisdictional decisions, culminating (so far; there will be more) with BMS and BNSF, have put the other side’s mass tort business model in significant jeopardy.  Thus, we see plaintiffs making extreme and exorbitant waiver arguments based on MDL direct filing agreements, not only in Depuy Orthopaedics, but also in the earlier Heartland Payment case, which also involved an aggressive waiver claim.  Our best advice is “don’t do it anymore.”  There is no statutory basis for personal jurisdiction in a direct filed MDL case, and Lexecon indicates that the Supreme Court won’t be inclined to create one.  Except for the rare MDL located in a place where every defendant is “at home,” there is no constitutional basis for direct filing creating personal jurisdiction either.

Weighing all these considerations, and given how the jurisdictional law is evolving, it is not a good idea for a defendant to waive any personal jurisdiction defense at this time.  Thus, we believe that there is no constitutional basis for personal jurisdiction in direct-filed MDL cases, and defendants should not do plaintiffs any favors by voluntarily agreeing to such procedures.

Once the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), definitively determined that non-resident plaintiffs can’t go suing non-resident defendants anywhere they want, attention turned to one of the primary types of forum-shopping gamesmanship that plaintiffs used to trap defendants in their preferred venues.

St. Louis – and thus the Eastern District of Missouri – were one of the first battle grounds, and as we celebrated here, here, and here, a jurisdiction that had previously been almost impervious to attempts to combat fraudulent misjoinder seems to be coming around.  See Jinright v. Johnson & Johnson, Inc., 2017 WL 3731317, at *4-5 (E.D. Mo. Aug. 30, 2017); Covington v. Janssen Pharmaceuticals, Inc., 2017 WL 3433611, at *4-5 (E.D. Mo. Aug. 10, 2017); Turner v. Boehringer Ingelheim Pharma, Inc., 2017 WL 3310696, at *3 (E.D. Mo. Aug. 3, 2017); Jordan v. Bayer Corp., 2017 WL 3006993, at *4 (E.D. Mo. July 14, 2017); Siegfried v. Boehringer Ingelheim Pharmaceuticals, Inc., 2017 WL 2778107, at *4-5 (E.D. Mo. June 27, 2017).  So far every post-BMS removal of a misjoined, multi-plaintiff action in Missouri has followed the rationale discussed in our prior posts (and below), except for those with timing issues.

So that’s one “magnet jurisdiction” seemingly on the way towards at least some degree of redemption.

Another one is the Southern District of Illinois, home to Madison and St. Clair Counties. That one started out looking a lot more doubtful.  The first court to decide a post-BMS removal case had the attitude that nothing had changed.  The court elected to ignore BMS – not even deigning to discuss it, beyond mentioning the defendant’s reliance.  Rios v. Bayer Corp., 2017 WL 3600374, at *1 (S.D. Ill. Aug. 22, 2017).  Otherwise, it appeared that the Southern District was going to continue a status quo that had allowed it to keep its docket largely free of escapees from Madison and St. Clair, no matter what:

Plaintiff’s Complaint alleges that Defendants are citizens of [numerous states and foreign countries], and that some of the plaintiffs are also citizens of [the same states].  Thus, complete diversity does not exist on the face of the Complaint.  In their Notice of Removal, Defendants state that this Court nonetheless has diversity jurisdiction because the out-of-state Plaintiffs’ claims were either fraudulently joined or procedurally misjoined, and thus the non-diverse Plaintiffs’ citizenship should be ignored for purposes of determining jurisdiction.  But because it is clear from the face of the Complaint that diversity jurisdiction is lacking, the Court need not first determine the existence of personal jurisdiction, and once again opts not to do so in this case.

Id. at *2.

And so things stood until just recently, until another jurist in the district (one who wasn’t a former member of ATLA’s board of governors), former Chief Judge Herndon, decided that he couldn’t in good conscience say that BMS changed nothing.  In a series of seven Xarelto cases, Judge Herndon recognized that there could be no more jurisdictional business as usual in the Southern District after BMS.  See Berousee v. Janssen Research & Development, LLC, 2017 WL 4255075 (S.D. Ill. Sept. 26, 2017); Douthit v. Janssen Research & Development, LLC, 2017 WL 4224031 (S.D. Ill. Sept. 22, 2017); Braun v. Janssen Research & Development, LLC, 2017 WL 4224034 (S.D. Ill. Sept. 22, 2017); Bandy v. Janssen Research & Development, LLC, 2017 WL 4224035 (S.D. Ill. Sept. 22, 2017); Pirtle v. Janssen Research & Development, LLC, 2017 WL 4224036 (S.D. Ill. Sept. 22, 2017); Roland v. Janssen Research & Development, LLC, 2017 WL 4224037 (S.D. Ill. Sept. 22, 2017); and Woodall v. Janssen Research & Development, LLC, 2017 WL 4237924 (S.D. Ill. Sept. 22, 2017).

Since they are all by the same judge on the same subject, these seven opinions not surprisingly track the same rationale.  We’ll reference the most recent decision, Berousee, in our discussion. Berousee is a typical (actually somewhat on the small side, in our experience) misjoined mishmash of “32 non-Illinois plaintiffs from 18 different states who were embedded in the lawsuit explicitly to destroy diversity jurisdiction” by making sure that at least one plaintiff was not diverse from the non-resident defendant being sued.  Id., 2017 WL 4255075, at *1.  This motley crew of plaintiffs were blatantly misjoined, having nothing to do with one another, except allegedly taking the same product and suffering similar types of injuries

Notwithstanding the facial non-diversity of the complaint, the defendant removed (from St. Clair county), citing (“draw[ing] attention to”) BMS for the proposition that “state courts lack specific jurisdiction to entertain non-resident plaintiff claims.”  Id.  The court agreed that BMS “established the Fourteenth Amendment’s due process clause did not permit the exercise of specific personal jurisdiction in state court over nonresident consumer’s claims.”  Id. at *1 n.2.

The key point in all these cases is the federal district court’s “discretion in jurisdiction.”  That is, under Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999), such courts, in determining their jurisdiction, are free to invert the usual process and consider personal jurisdiction before diving into subject matter jurisdiction where the personal jurisdiction question is “straightforward” and “present[s] no complex question of state law,” and conversely “subject-matter jurisdiction is problematic.”  Berousee, 2017 WL 4255075, at *2 (discussing Ruhrgas).

[D]istrict courts do not overstep Article III limits when declining jurisdiction of state-law claims on discretionary grounds without determining whether those claims fall within their pendent jurisdiction without deciding whether the parties present a case or controversy.  Where a straightforward personal jurisdiction issue presenting no complex question of state law is pending before the Court − and the dispute over subject-matter jurisdiction is problematic − the court does not abuse its discretion by turning directly to personal jurisdiction.

Id. at *2 (Ruhrgas quotations omitted).

Now – that is to say, after BMS – personal jurisdiction is much more “straightforward” than the subject matter jurisdictional thicket of fraudulent misjoinder and CAFA jurisdiction:

[S]everal courts [have] utilized the BMS holding [and] conclusively held personal jurisdiction − instead of subject-matter jurisdiction − is the more straightforward inquiry.  Based on the above recent legal decisions combined with lack of “unyielding jurisdictional hierarchy,” interests of judicial economy, and weight of the precautionary effect on ruling on an issue that could regress and bind the state court, the Court finds that in this matter personal jurisdiction is the more straightforward inquiry − and will analyze same before addressing challenges to subject-matter jurisdiction.

Id. at *3 (citations to E.D. Mo. decisions already cited in this post omitted).

That was the hard part, because once the court gets to the personal jurisdiction inquiry, application of BMS really is pretty cut and dried in the context of mass torts and multi-plaintiff misjoined complaints.  General personal jurisdiction was out under our old friend Daimler AG v. Bauman, 134 S. Ct. 746 (2014), as the defendant was neither incorporated nor headquartered in Illinois. Berousee, 2017 WL 4255075, at *3.

As for specific jurisdiction, “[i]n exercising specific personal jurisdiction, defendants’ contacts with Illinois must be directly related to the challenged conduct.”  Id. (citations omitted).  There must be “purposeful availment” related to litigation.  Id. at *3 n.3.  Plaintiffs claimed that “defendants purposefully targeted Illinois as the location for multiple clinical trials which formed the foundation for defendants’ [FDA new drug] application.”  Id. at *4.  That was insufficient under BMS:

It is undisputed that the non-Illinois plaintiffs do not claim injuries from ingesting [the drug] in Illinois, and all conduct giving rise to the non-Illinois plaintiffs’ claims occurred elsewhere. The instant matter is analogous to BMS where the United States Supreme Court held that California state courts do not retain specific personal jurisdiction over non-resident defendant pharmaceutical companies, for non-resident plaintiff claims not arising out of or relating to defendant’s contacts with California. . . .  [T]his Court lacks specific personal jurisdiction over defendants regarding the non-Illinois plaintiffs’ claims.

Id. (emphasis original).

The plaintiff-side jurisdictional argument that Berousee rejected was the same one allowed by an Illinois intermediate appellate court last year in M.M. v. GlaxoSmithKline LLC, 61 N.E.3d 1026 (Ill. App. 2016), which is why M.M. became our #8 worst case of the year.  While the Supreme Court recently denied certiorari, see 2017 WL 1153625 (U.S. Oct. 2, 2017), that means next to nothing.  Consider, for example, the number of denied certiorari petitions in PMA preemption cases before the Court took, and affirmed, the pro-preemption decision in Riegel.  Off the top of our heads (and it’s been a while) we can name at least four − Martin v. Medtronic; Brooks v. Howmedica; Kemp v. Medtronic (one of Bexis’); and Mitchell v. Collagen.  There are probably more.

So we wouldn’t read anything into the denial in M.M.  It’s reasoning didn’t impress us – at minimum it is another “grasping” and “exorbitant” theory of personal jurisdiction that, like those in Bauman and BMS, cannot pass Due Process muster.  More importantly, M.M. is questionable in light of the Illinois Supreme Court’s recent decision in Aspen American Insurance Co. v. Interstate Warehousing, Inc., 2017 WL 4173349 (Ill. Sept. 21, 2017), which not only decisively rejected jurisdiction by consent, id. at *4-5,  but also had this to say about a similar theory, involving warehouses rather than clinical trials:

[P]laintiff has established that defendant does business in Illinois through the warehouse. . . .  But this fact falls far short of showing that Illinois is a surrogate home for defendant.  Indeed, if the operation of the warehouse was sufficient, in itself, to establish general jurisdiction, then defendant would also be at home in all the other states where its warehouses are located. The Supreme Court has expressly rejected this reasoning.

Id. at *4.  Granted, Aspen Insurance was addressing general jurisdiction, but since we’re discussing non-resident plaintiffs and Due Process, the “grasping”/”exorbitant” principle is the same.  Substitute “clinical trials” for “warehouses” and you can see where this is going….

Nor, getting back to the focus of this post, did the clinical trials argument impress Judge Herndon.  He was so unimpressed, he didn’t even cite M.M. while rejecting its rationale.  In Berousee,“the non-Illinois plaintiffs failed to allege ingestion of [the drug] in Illinois, or suffered from injuries caused by [the drug] in Illinois.”  2017 WL 4255075, at *4.  Without such allegations, “there is no connection between Illinois and the underlying [drug] controversy, which in itself is unconnected to Illinois.”  Id.  Allegations like the plaintiffs, about clinical trials generally, merely involved “general connections with forum [that] are not enough; a corporation’s continuous activity of some sort within a state is not enough to support demand that corporation be amenable to lawsuits unrelated to specified activity.”  Id.  The same sort of conduct “took place throughout the United States.”  Id. at *4 n.4.  But the non-resident plaintiffs “were not prescribed [the drug] here, nor did they purchase the drug, suffer any injury, or receive treatment in [this state].”  Id.

There being no personal injury over non-resident plaintiffs’ claims against non-resident defendants, those plaintiffs had to be dismissed, without prejudice.  Id. at *4-5.  Dismissal of those plaintiffs’ claims meant that complete diversity existed between the lone Illinois plaintiff and the defendants, so remand of that claim to state court was denied.  Id. at *5.

The other six decisions by Judge Herndon apply the same core jurisdictional reasoning as Berousee almost verbatim.  See Douthit, 2017 WL 4224031, at *3-6; Braun, 2017 WL 4224034, at *3-6; Bandy, 2017 WL 4224035, at *3-6; Pirtle, 2017 WL 4224036, at *3-6; Roland, 2017 WL 4224037, at *2-5; Woodall, 2017 WL 4237924, at *3-6.

That is not to say that they are identical in all respects, however.  In Douthit, the plaintiffs’ back-up argument, that the removal was untimely, was rejected almost out of hand.  The Supreme Court’s decision in BMS constituted an “order or other paper” under 28 U.S.C. § 1446(b)(3) opening up a new 30-day removal period.  2017 WL 4224031, at *6.  Plaintiffs made only “a feeble attempt to persuade the Court that pleadings and orders filed in other suits, not related to the removed case” weren’t “orders or other papers” under this statute . Id.  The court decisively rejected this “erroneous[] conten[tion]”:

Correctly, defendants attest BMS conclusively established the Due Process Clause prohibits non-Illinois plaintiffs from filing claims against defendants in Illinois state courts.  The Court agrees with defendants and finds plaintiffs’ argument unfounded.  When a “different case resolve[s] a legal uncertainty concerning the existence of original federal jurisdiction[,]” removal is allowed on that basis.

Id. (quoting Wisconsin v. Amgen, Inc., 516 F.3d 530, 534 (7th Cir. 2008)). Accord Braun, 2017 WL 4224034, at *6; Bandy, 2017 WL 4224035, at *6; Pirtle, 2017 WL 4224036, at *6; Roland, 2017 WL 4224037, at *5; Woodall, 2017 WL 4237924, at *6.

We hope that Judge Herndon’s septilogy (while not as entertaining as J.K. Rowling’s) nails down post-BMS jurisdictional issues in Southern District of Illinois, just as firmly as those issues appear to be resolved in the Eastern District of Missouri.  On to California and Pennsylvania.

“I am from Missouri. You have got to show me.” That quote attributed to Congressman Willard Duncan Vandiver in 1899 is reputedly the source of Missouri’s unofficial nickname, the “Show Me” state.  Or maybe it isn’t.  Whatever the slogan’s origin, a federal judge in Missouri recently said “show me” when 83 plaintiffs from 30 different states claimed personal jurisdiction in Missouri over a New Jersey-based talcum powder manufacturer.  These litigation tourists predictably could not meet the challenge, resulting in their claims being dismissed and the federal court retaining diversity jurisdiction over those who remained.

The case is Jinright v. Johnson & Johnson, Inc., No. 4:17-cv-01849, 2017 WL 3731317 (E.D. Mo. Aug. 30, 2017).  Sure, this is not a drug or medical device case, but the plaintiffs’ business model is the same as what we often see in the drug and medical device space—dozens of out-of-state plaintiffs joining in a lawsuit with one or two resident plaintiffs and one or two plaintiffs who defeat diversity, all as a ploy to forum shop their cases into a state court that their attorneys perceive as friendly.  The Jinright plaintiffs followed the playbook to a tee:  Eighty-three plaintiffs in one civil action with two Missourians and at least one plaintiff each from California and New Jersey—the latter to defeat diversity of citizenship with the California and New Jersey defendants.

If this configuration looks familiar to you, it should. Almost identical facts were before the U.S. Supreme Court in BMS v. Superior Court, where the Supreme Court held that a plaintiff cannot establish specific personal jurisdiction over his or her claims by reference to transactions involving other parties. See Bristol Myers Squibb v. Superior Court, 137 S. Ct. 1773, 1781-84 (2017).  With those ground rules, the outcome in Missouri was correct.  The defendants removed the 83-plaintiff petition to federal court and moved to dismiss the non-Missouri plaintiffs, who had no basis for asserting personal jurisdiction over the defendants in Missouri.  The plaintiffs moved to remand, citing the non-diverse parties.

The defendants won, and there are two interesting aspects of the court’s order to highlight.

First, the district court decided personal jurisdiction first, before it determined subject matter jurisdiction. Jinright, 2017 WL 3731317, at *2.  The plaintiffs argued, with some support, that the district court should decide whether it had subject matter jurisdiction as a threshold matter.  But the district court took a more pragmatic approach after BMS, observing that “there are circumstances in which a court may first address personal jurisdiction, such as where personal jurisdiction is straightforward while subject matter jurisdiction is ‘difficult, novel, or complex.’” Id. (emphasis added).

This nugget is extremely useful in today’s climate, where the Supreme Court in BMS and before that in Bauman has made the rules governing personal jurisdiction as clear and straightforward as they have been in decades.  As the district judge in Jinright found, “The personal jurisdiction question is straightforward.  Remanding this case for lack of complete diversity only to have the case removed again later once the non-Missouri plaintiffs are dismissed would be a waste of judicial resources.” Jinright, at *2 (emphasis added).  Perhaps the district judge saw our post from about six weeks ago presciently titled “Post-BMS Personal Jurisdiction is Pretty Straightforward.”  Regardless, when faced with complaints like these, we have three options to invoke federal jurisdiction:  (1) Move to dismiss the plaintiffs who can’t establish personal jurisdiction, then remove; (2) remove and ask the district court to sever and remand the non-diverse claims, or (3) remove and simultaneously move to dismiss the non-diverse plaintiffs.  These options won’t always work, depending on the case and the applicable deadlines.  The Jinright order squarely recommends option 3.  The Supreme Court’s opinion in Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999), similarly supports adjudicating personal jurisdiction before establishing subject matter jurisdiction where the former is “a straightforward . . . issue presenting no complex question of state law.”

Second, the district court rejected the plaintiffs’ argument that they needed discovery into personal jurisdiction. They claimed evidence that another defendant had talc-related dealings with a Missouri-based company, which “processed, bottled and labeled” product in Missouri. Id. at *4.  The district court, however, ruled that even if it considered these facts (which the plaintiffs did not allege in their petition), they did not establish specific personal jurisdiction over the talcum powder manufacturer because “it did not establish a connection between Plaintiffs’ injuries, the product which caused the harm in this matter, and Defendants’ contacts in Missouri.” Id. at *4.  This was similar to BMS, where the plaintiffs relied on the drug manufacturer defendant’s contacts with a California-based distributor.  It was not sufficient to establish specific personal jurisdiction in BMS, and it was not sufficient in Missouri either. Id. As such, no further discovery was needed or allowed because “[a]ll they have shown is a connection with a third party in Missouri.  This is not enough to create specific jurisdiction for nonresidents’ claims.” Id. at *5.

This last part is significant because these plaintiffs made a go at identifying talcum-related Missouri contacts, but the district court did not bite. We predicted that plaintiffs would try to stretch tenuous forum contacts into specific jurisdiction when confronted with motions to dismiss, but it does not always work.  It did not work here.  We also note that this is the second order that we know of rejecting “jurisdictional discovery” as futile.  There are likely others, but if two cases can be a trend, we like this trend.  It should lead to less talc-related litigation tourism in Missouri, but time will tell.

The result is that the claims of 79 plaintiffs with no articulable connection to Missouri were dismissed. The remaining claims are staying in federal court and will be transferred to multidistrict litigation in New Jersey.  Perhaps their dismissed cohorts will re-file there and join them, or maybe they will not re-file at all.  Either way, when this Missouri-based judge asked these litigation tourists if they knew their way to the door, they likely said “show me.”

As we publish this post, lawyers in the Pinnacle Hip Implant MDL are gathering in the Bob Casey Courthouse in Houston or in coffee shops, breakfast cafés or law offices nearby awaiting the argument to come.  At 10:00 a.m., the arguing starts.  The Fifth Circuit will officially begin to consider whether to issue a writ of mandamus telling the Pinnacle Hip Implant MDL Court in Dallas that it cannot exercise personal jurisdiction over the upcoming September bellwether trial involving eight New York plaintiffs. The Fifth Circuit will tackle the substance of the appeal—did defendants waive their personal jurisdiction defense as to those eight cases and, in fact, as to all cases in the MDL when they gave a waiver in connection with the first two bellwether trials? Maybe more important, the Fifth Circuit will tackle procedure—are these the type of rare circumstances that require it to issues a writ of mandamus?

We first posted on this petition to the Fifth Circuit on August 8.  Defendants’ petition argued—fairly convincingly—that the context of their waivers, and the language of the waivers themselves, made clear that they applied only to the cases selected for the previous bellwether trials that were upcoming at the time that the waivers were made, and not to all MDL cases.  (Here is a copy of the petition.)  The defendants’ petition challenged an order issued by the MDL trial holding that the waivers applied more broadly, encompassing all future MDL cases, even (seemingly) those that had not even been filed yet.  (Here is the trial court’s opinion.)

Since our first post, the plaintiffs’ filed an opposition brief, and the defendants have since filed a reply brief.

Plaintiffs’ response brief is confusing at times. It argues (at 19) that MDL courts can exercise the personal jurisdiction necessary to conduct bellwether trials with the consent of the parties. Well, yes. With the consent of the parties. But the existence of consent is the very issue being considered by the Fifth Circuit. Plaintiffs’ response also argues (at 18) that an MDL court’s “direct-file order”—an order that allows plaintiffs to file complaints directly in the MDL court even if the underlying claims have no connection to the state in which the MDL court sits—allows it to exercise personal jurisdiction over those directly-filed cases and to conduct trials. No it doesn’t. Courts can’t create personal jurisdiction that otherwise did not exist simply by issuing an administrative filing order. On “waiver,” at one point plaintiffs’ opposition states (at 5) that defendants had previously explained that their waiver for the second bellwether trial was “in order to allow the court to select the next round of bellwether cases.” Plaintiffs then just let that phrase lie there out in the open, essentially making defendants’ argument for them.

Defendant’s reply brief misses none of this, addressing all these seeming missteps. It also turns some of plaintiffs’ arguments in defendants’ favor. For instance, plaintiffs argue that only two cases address the states’ contacts that should be considered in a direct-file case, claiming that both cases were decided wrongly. Defendants highlight (at 1), however, that this is the precise type of lack of guidance that requires the Fifth Circuit to weigh in. Defendants’ reply brief (at 2) explains that such guidance would assist not only in the upcoming Pinnacle Hip Implant bellwether trials, but also in future Pinnacle bellwether trials and other future MDL proceedings in the Fifth Circuit, as well as dispose of a current Pinnacle appeal. Most important, defendants’ reply brief highlights (at 6) the strict standard for finding a waiver of personal jurisdiction: “a clear and unambiguous showing of a deliberate relinquishment of a known right.” Armstrong v. LaSalle Bank Nat. Assoc., 552 F.3d 613, 615 (7th Cir. 2009). Under this standard, it’s hard to see how the waivers by defendants could ever be reasonably interpreted to apply broadly to all MDL cases.

The Fifth Circuit will test and probe all of these issues and arguments later this morning. It will likely be a fascinating back-and-forth. Now, as with any writ of mandamus, this is a long shot. But personal jurisdiction is a hot button issue right now. And the Fifth Circuit’s decision could affect many cases, as this MDL trial court has a penchant for arranging incredibly large multi-plaintiff bellwether trials. Regardless, one thing that we are reasonably sure of is that the Fifth Circuit will rule quickly. The next bellwether trial is only a couple of weeks away. And so we expect to be posting on the Fifth Circuit’s decision soon.

Risperdal, an antipsychotic drug prescribed to treat serious mental conditions – schizophrenia, manic depression, and autism – allegedly causes some male users to develop abnormal breast tissue growth. Particularly when compared to the consequences of the conditions Risperdal is indicated to treat, that seems like a relatively minor risk.  It isn’t fatal.  It isn’t a long-term disability.  It doesn’t prevent one from making a living.  Thus, Risperdal litigation is a prime example of low-value cases that only exist because of the mass-tort system that has saddled the country for so long.

Thus, it is hardly surprising that Risperdal cases are on the front lines of the battle to rein in our long national mass-tort nightmare.

Just last week we learned of these two decisions:

(1) Covington v. Janssen Pharmaceuticals, Inc., 2017 WL 3433611 (E.D. Mo. Aug. 10, 2017).  Covington was one of the ridiculously misjoined multi-plaintiff complaints that mashed together residents from all over the country.  Before Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), Missouri federal courts routinely remanded these atrocities to the St. Louis litigation cesspool because there was always at least one diversity-destroying non-Missouri plaintiff, as well as one jurisdiction establishing Missouri plaintiff in the bunch.  Covington, 2017 WL 3433611, at *2 (“Historically − and especially in this district − courts generally have addressed subject matter jurisdiction first”).

Not anymore.

Covington is typical of the multi-plaintiff complaint genre – 54 plaintiffs from 26 different states.  2017 WL 3433611, at *1.  “Only one plaintiff” alleged injury from use of the drug “in the state of Missouri.  Id.  As for the rest:

The Non-Missouri plaintiffs, or those who do not have any connection to the state of Missouri, do not allege that they were prescribed Risperdal or any of its variants in Missouri, ingested the same in Missouri, or were injured in Missouri.

Id.

With BMS, the personal jurisdiction issues involving litigation tourism of this sort were largely resolved.  With no fixed “jurisdiction hierarchy,” it was now logical to take up this “more straightforward issue first. ” Id. at *2.

However, these [contrary] cases were decided before [BMS] and State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017) (en banc) [our post on Dolan is here].  These decisions make the personal jurisdiction issue in this case much easier to decide. . . .  Further, analyzing the challenge to personal jurisdiction first avoids any issues relating to fraudulent joinder.  Personal jurisdiction is now the more straightforward inquiry and should be addressed first as it is in the interests of judicial economy and expeditiousness.

Id. (citations and quotation marks omitted).

The personal jurisdiction question was easy.  There could be no general jurisdiction.  “[N]o defendant is incorporated in Missouri nor has its principal place of business in Missouri.”  Id. at *4.  ‘Nuff said.  Nor was there specific personal jurisdiction for all but one of the plaintiffs – thus removing the planted plaintiffs from the defendants’ home states.

[B]esides the Missouri plaintiff, no other plaintiff allege that they, or a child or incapacitated person whom they represent as next friend, were prescribed or purchased Risperdal in this state, suffered an injury from Risperdal in this state, or received treatment for an injury from Risperdal in this state.

Id.  The “mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug in Missouri] − and allegedly sustained the same injuries as did the nonresidents − does not allow the State to assert specific jurisdiction over the nonresidents’ claims.”  Id. at *4 (quoting BMS).  Thus 53 of the 54 plaintiffs were dismissed (without prejudice, and with the laws of their home states determining whether an unsuccessful litigation tourism jaunt tolled their statutes of limitations).  A single plaintiff’s low-value case thus remained in Missouri federal court.  Id. at *5.  It probably won’t last long, since the March 8, 2017 filing date was more than a dozen years after 2004, when that plaintiff admits discovering the supposed injury.  Id. at *6.

Plaintiffs mounted unsuccessful rearguard actions in Covington.  They sought a stay – claiming “prejudice” from the need to sort out a supposed jurisdictional morass that they, themselves, created.  That went nowhere.  Id. at *3 (“A motion to stay should not be abused by a party to dictate which motion is first addressed by the Court.”).  They also sought “jurisdictional discovery” – a fishing expedition to search for Risperdal/Missouri contacts.  Covington likewise saw that request for what it was:

Here, the plaintiffs do not plead any specific facts that support their contention that this Court has personal jurisdiction over all of the plaintiffs’ claims. Alleging that facts might be discovered during a jurisdictional discovery expedition will not allow plaintiffs to survive a 12(b)(2) motion to dismiss.

Id. at *5.

Summing up, Covington observed:

Unfortunately for the plaintiffs, [BMS], under the facts of this case, made personal jurisdiction the more straightforward issue and therefore more proper to be analyzed first.  Further, [BMS] held that forums, like Missouri in this action, do not have specific personal jurisdiction over non-resident corporations when the plaintiffs do not allege any specific connection between the forum and the specific claims at issue.

Neither this Court nor the state court in which this action was removed can exercise personal jurisdiction − whether general or specific − over the defendants for the claims brought by the 53 non-Missouri plaintiffs.

Id. at *6.

That’s one.

(2) West v. Janssen Pharmaceuticals, Inc., 2017 U.S. Dist. Lexis 124276 (Mag. M.D. Ala. Aug. 4, 2017).  West is something of the obverse of Covington.  In Covington the plaintiffs joined together in an attempt to manufacture jurisdiction for a horde of weak cases, whereas in West, jurisdiction already existed, so the plaintiffs were trying to join their weak cases together to prejudice the defendant at trial.  Once again, the court wasn’t buying the consolidation.  West involved two plaintiffs, Harper and West, treated at one point by the same prescribing physician, both alleging the same injury from the same drug.  Id. at *2, 11.

But that was as far as the similarities went.

The two plaintiffs were of much different ages; one a minor, the other not. One involved off-label use; the other not.  One involved innovator liability (being filed during the few Weeks window when that theory was allowed in Alabama); the other not.  There were various other differences as well, such as duration of use, and when the drug was prescribed (affecting the relevant warnings), and the age at which the risk allegedly manifested.  Id. at *13-15.

The dissimilarities in the Plaintiffs’ claims have be-come more apparent as discovery and expert testimony have developed.  Harper began taking Risperdal as a five or six-year old and was always a minor while taking the medication.  In contrast, West did not begin taking the medication until he was almost eighteen years old and was physiologically an adult.  The significance of this difference is highlighted by the expert causation testimony. . . .  Further, the consequence of Risperdal not being approved for pediatric use takes on a much different meaning in the two cases.

Id. at *12-13.

These differences precluded a joint trial under Fed. R. Civ. P. 20.  “The critical differences between the claims asserted by Plaintiffs outweigh the similarities between the cases, and the court finds trying the cases together would thus be inefficient and confusing for both the Court and the jury.”  Id. at *14.  The presence of an innovator liability claim in one of the cases demonstrated their legal as well as factual disparity.  Id. at *15-16.  Further, “West and Harper were prescribed multiple prescriptions, written at different times by different physicians and in different doses at different physiological stages of their lives.”  Id. at *16.

Thus, two disparate plaintiffs could not claim injury “from the same series of transactions” as required by Rule 20. Id. at *17.  No consolidation synergies for these two weak cases.

*          *          *          *

Two Risperdal cases; two different jurisdictions; two attempts by plaintiffs to manipulate joinder to the disadvantage of defendants defeated.  We look forward to similar rulings in the future.

 

 

Posts on personal jurisdiction, or the lack of it, have been all over this blog ever since the Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court. Something similar happened three years ago after the Supreme Court decided Daimler AG v. Bauman. Together, these two decisions establish that federal courts are not empowered to find a reason to assert personal jurisdiction simply because the defendant is a large company doing business nationally. General jurisdiction requires the state in which the federal court sits to be the defendant’s “home,” meaning that it was incorporated there or has its principle place of business there. Specific jurisdiction requires that the very transaction from which the plaintiff’s claims arose involve the state in which the federal court sits. Otherwise, the court should dismiss the case. These decisions hold the promise of virtually eliminating litigation tourism.

But the plaintiffs in the Pinnacle Hip Implant MDL are trying to resurrect it, if only in their own litigation. The MDL is pending in federal court in Dallas. And yet the MDL court recently held, seemingly, that it can exert personal jurisdiction against the defendants and conduct trials in every case before it, even those that have no connection to Texas.

As many of us know, MDL courts have jurisdiction over the many cases that are transferred to them, but only for pretrial purposes. The transfer does not create personal jurisdiction for trial. Cases over which the MDL court does not have such personal jurisdiction must be transferred for trial back to the originating district court—or an appropriate district court that can exert personal jurisdiction. 28 U.S.C. 1407(a).

So, how is the MDL court doing this? Well, the lack of personal jurisdiction defense is waivable. And that’s where the MDL court is hanging its robe. It ruled in its June 28, 2017 decision that the defendants waived their defense of lack of personal jurisdiction—and not just for cases already tried, but (seemingly) for every Pinnacle hip implant case that has been filed and will be filed and that makes its way to the MDL. The defendants made this perpetual waiver, according to the MDL court, during proceedings before the special master, who at the time was working to arrange the first and second bellwether trials.

The defendants vehemently disagree. They say that their waiver, given the setting and the very language that they used, was limited only to personal jurisdiction as to the cases involved in the first and second bellwether trials, not all cases and forever. They believe this so strongly that they have filed a petition for a writ of mandamus to the Court of Appeals for the Fifth Circuit, asking that court to order that the MDL Judge cannot exercise personal jurisdiction in any of the eight cases with New York plaintiffs that the MDL court scheduled for the next bellwether trial, which starts in September.

It’s a petition for a writ of mandamus, so from the start defendants’ chances of victory are slim. But, last year, even in losing a petition for a writ of mandamus on another issue, the defendants got one of the Circuit Court judges (in a concurring opinion) to say that the MDL judge got it wrong. We’ll see what happens here. Plaintiffs must respond by the 14th. And the Fifth Circuit will almost certainly rule before September 5, when this next multi-plaintiff bellwether trial is set to begin.

The Pinnacle hip implant litigation is never without intrigue.

In the wake of the defense wins during the last Supreme Court term in Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017) (“BMS”), and BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549 (2017), we’re retiring the personal jurisdiction cheat sheet we had been maintaining for the last three-plus years since Daimler AG v. Bauman, 134 S.Ct. 746 (2014) (“Bauman”).  That cheat sheet, as our readers know, had covered general jurisdiction cases generally – all areas, not just prescription medical product liability, or product liability generally.  That was a big undertaking, but we did it because litigation tourism was, and remains, a huge issue for our clients.  Now we think that, between them, BMS, BNSF, and Bauman have now settled the larger general jurisdiction point.

So we think we can be more focused going forward in our ongoing monitoring of personal jurisdiction cases. So we’re creating a new cheat sheet devoted to a couple of specific lingering issues.  The first of these issues is the so-called (at least by us) “jurisdiction by consent” theory – that general personal jurisdiction is created in a state when a corporation registers to do business/appoints an agent for service of process in a state.  Since all states have such registration statutes, recognition of that theory would do what the United States Supreme Court has now held multiple times that Due Process prohibits – allowing a corporation to be sued in many jurisdictions where it is not “at home” by anybody, in particular out-of state litigation tourists.  Not surprisingly, since Bauman most courts have rejected this theory (as the cases below demonstrate) as incompatible with Due Process, but since the Supreme Court has not put a stake through itself, plaintiffs still raise it relatively frequently.

Almost all of the older – that is to say, pre-BMS − decisions in this new cheat sheet address jurisdiction by consent theories.  We were keeping specific track of jurisdiction by consent cases in our original cheat sheet, so we’ve pulled out those cases and compiled them here.

Another reason for keeping track of jurisdiction by consent cases is that we litigate a lot in Pennsylvania, and we expect Pennsylvania to be Ground Zero for the battle over this theory.  An unfortunate combination – Pennsylvania’s unique registration statute (42 Pa. C.S.A. §5301) that actually specifies “general” jurisdiction, and adverse pre-Bauman Third Circuit precedent interpreting Pennsylvania law (Bane v. Netlink, Inc., 925 F.2d 637, 640-41 (3d Cir. 1991)) – have led some Pennsylvania courts to ignore constitutional Due Process as interpreted by BMS and Bauman and hold mandatory registration to do business in Pennsylvania somehow to equate with “consent” to general jurisdiction.  E.g., Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., 2017 WL 3129147, at *11 (E.D. Pa. July 24, 2017); Hegna v. Smitty’s Supply, Inc., 2017 WL 2563231, at *3-4 (E.D. Pa. June 13, 2017); Bors v. Johnson & Johnson, 208 F. Supp.3d 648, 653–55 (E.D. Pa. 2016).

Surely, most Pennsylvania lawyers and judges learned in law school like we did that a state statute can’t override federal constitutional Due Process guarantees, but the litigation tourism industry in Pennsylvania is entrenched and well-funded.  Given that that most of plaintiffs’ other favorite jurisdictions:  California, Illinois, Missouri, and New Jersey, to name a few (see below for details), do not recognize jurisdiction by consent as a matter of state law, we expect to have a ring-side seat as the consent issue is eventually appealed, perhaps interlocutorily, from some Pennsylvania court all the way to the United States Supreme Court if necessary.

The second jurisdictional theory we’ll be keeping track of in this cheat sheet is what we call “BMS-lite.”  This is a litigation tourist’s last gasp in jurisdictions, such as those listed below, that have already rejected jurisdiction by consent. BMS-lite is the variant of specific jurisdiction based on corporate activities related, not to any plaintiff’s case, but to the product in general, that plaintiffs will argue somehow “caused” their injuries in a broad sense and thus justifies opening the courthouse doors in multiple states to litigation tourists.  We discussed an early example of that recently, and the theory’s most notable exemplar, M.M. v. GlaxoSmithKline LLC, 61 N.E.3d 1026 (Ill. App. 2016). M.M. (and the post-BMS case we discussed) predicated “specific” jurisdiction on the very non-specific fact that some of the drug’s clinical trials (17 of 361) included in-state investigators.

The type of facts that M.M. seized upon to preserve Illinois’ litigation tourism business don’t involve the plaintiffs, so “a defendant’s relationship with a third party, standing alone, is an insufficient basis for jurisdiction.” BMS, 137 S. Ct. at 1781 (citation and quotation marks omitted).  As the Illinois Supreme Court held, albeit in a discussion of general jurisdiction, in late September, 2017:

[P]laintiff has established that defendant does business in Illinois through the warehouse. . . .  But this fact falls far short of showing that Illinois is a surrogate home for defendant.  Indeed, if the operation of the warehouse was sufficient, in itself, to establish general jurisdiction, then defendant would also be at home in all the other states where its warehouses are located. The Supreme Court has expressly rejected this reasoning.

Aspen American Insurance Co. v. Interstate Warehousing, Inc., ___ N.E.3d ___, 2017 WL 4173349, at *4 (Ill. Sept. 21, 2017).  Substitute “clinical trial” for “warehouse” in this Aspen Insurance quote and you’ve got M.M.

Thus, we believe that, short of a major causal tie – such as the product being manufactured in the forum state in a manufacturing defect case – we don’t think BMS-lite theories are of any greater constitutional validity than what was rejected in BMS itself, so we’ll also be collecting favorable cases that make such holdings.  But so far, given how recent BMS is, we haven’t seen any favorable cases.  We expect them to be coming.

As always, with cheat sheets, we don’t do the other side’s research for them, so we won’t be including any bad cases.

With all this in mind, here is our Post-BMS Personal Jurisdiction Cheat Sheet:

  1. Renfroe v. Nichols Wire & Aluminum Co., 83 N.W.2d 590 (Mich. 1957) (Michigan) (non-product liability).  Grant of motion to dismiss affirmed.  Registration to do business did not subject a corporate defendant to litigation having nothing to do with Michigan.
  2. Byham v. National Cibo House Corp., 143 S.E.2d 225 (N.C. 1965) (North Carolina) (non-product liability).  Denial of motion to dismiss affirmed on specific jurisdiction grounds. The casual presence of an agent for service of process is not enough to subject a corporation to suit on causes of action unconnected with the activities within the state.
  3. Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745 (4th Cir. June 29, 1971) (South Carolina) (prescription medical product liability). Denial of motion to dismiss reversed.  Application to do business and the appointment of an agent for service does not establish general personal jurisdiction.
  4. Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1036 (10th Cir. March 6, 1975) (New Mexico) (non-product liability).  Affirming grant of motion to dismiss.  Registration to do business is not enough to subject a corporation to suit on causes of action unconnected with the activities within the state.
  5. In re Mid-Atlantic Toyota Antitrust Litigation, 525 F. Supp. 1265 (D. Md. Oct. 14, 1981) (West Virginia) (non-product liability).  Motion to dismiss granted.  Registration to do business is not consent to general personal jurisdiction. Modified on other grounds, 541 F. Supp. 62; affirmed on other grounds, 704 F.2d 125.
  6. Pearrow v. National Life & Accident Insurance Co., 703 F.2d 1067 (8th Cir. 1983) (Arkansas) (non-product liability).  Grant of motion to dismiss affirmed.  Appointment of an agent for service of process does not create general personal jurisdiction.
  7. Gray Line Tours v. Reynolds Electrical & Engineering Co., 238 Cal. Rptr. 419 (Cal. App. June 5. 1987) (California) (non-product liability).  Grant of motion to dismiss affirmed.  Designation of an agent for service of process and qualification to do business in California alone was not consent to general jurisdiction.
  8. Goodyear Tire & Rubber Co. v. Ruby, 540 A.2d 482 (Md. 1988) (Maryland) (non-product liability).  Denial of motion to dismiss reversed.  Agent for service of process insufficient to permit general jurisdiction.
  9. Sandstrom v. ChemLawn Corp., 904 F.2d 83 (1st Cir. May 17, 1990) (Maine) (product liability – non drug/device).  Grant of motion to dismiss affirmed.  Corporation that was licensed to do business in forum and had appointed agent for service of process did not consent to general personal jurisdiction.
  10. Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239 (7th Cir. Oct. 24, 1990) (Indiana) (non-product liability).  Denial of motion to dismiss remanded.  Registration to do business alone is not a basis for general personal jurisdiction.
  11. Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179 (5th Cir. July 17, 1992) (Texas) (product liability – non drug/device).  Grant of motion to dismiss affirmed.  Registration to do business and appointment of agent for service of process is not consent to general personal jurisdiction.
  12. Leonard v. USA Petroleum Corp., 829 F. Supp. 882 (S.D. Tex. Aug. 17, 1993) (Texas) (non-product liability).  Motion to dismiss granted.  Registration to do business was not automatic consent to general personal jurisdiction.
  13. Pittock v. Otis Elevator Co., 8 F.3d 325 (6th Cir. 1993) (Ohio)  (product liability – non drug/device).  Grant of motion to dismiss affirmed.  Registration to do business and appointment of agent for service of process is not consent to general personal jurisdiction.
  14. Arkwright Mutual Insurance Co. v. Transportes de Nuevo Laredo, 879 F.Supp. 699 (S.D. Tex. Aug. 31, 1994) (Texas) (non-product liability).  Motion to dismiss granted.  A certificate to do business does not create general personal jurisdiction.
  15. Samuelson v. Honeywell, 863 F. Supp. 1503 (E.D. Okla. Aug. 31, 1994) (Oklahoma) (non-product liability).  Motion to dismiss granted.  General personal jurisdiction could not be asserted over corporation based on its registration to do business.
  16. Washington Equipment Manufacturing Co. v. Concrete Placing Co., 931 P.2d 170 (Wash App. Feb. 13, 1997) (Washington) (non-product liability).  Grant of motion to dismiss affirmed.  That foreign corporation had registered to do business and appointed agent in state did not confer general personal jurisdiction.
  17. Sofrar, S.A. v. Graham Engineering Corp., 35 F. Supp.2d 919 (S.D. Fla. Feb. 5, 1999) (Florida) (non-product liability). Motion to dismiss granted.  Appointment of an agent for service of process and registration to do business were insufficient to create general personal jurisdiction.
  18. Allied Carriers Exchange, Inc. v. All. Shippers, Inc., 1999 WL 35363796, at *3 (D. Colo. Sept. 22, 1999) (Colorado) (non-product liability).  Transfer granted.  Appointment of a registered agent does not necessarily subject a foreign corporation to general jurisdiction.
  19. Freeman v. Second Judicial District, 1 P.3d 963 (Nev. June 9, 2000) (Nevada) (non-product liability). Mandamus from grant of motion to dismiss denied.  The mere act of appointing an agent to receive service of process does not subject a non-resident corporation to general jurisdiction.
  20. Consolidated Development Corp. v. Sherritt, Inc., 216 F.3d 1286 (11th Cir. July 5, 2000) (federal law) (non-product liability).  Grant of motion to dismiss affirmed.  On a federal claim, the casual presence of a corporate agent for service of process anywhere in the United States is not enough to subject an overseas corporation to general personal jurisdiction.
  21. Alderson v. Southern Co., 747 N.E.2d 926 (Ill. App. 2001) (Illinois) (non-product liability).  Reversing denial of motion to dismiss.  Appointment of agent for service of process is not automatically “doing business” that gives rise to general personal jurisdiction.
  22. DVI, Inc. v. Superior Court, 128 Cal. Rptr.2d 683 (Cal. App. Dec. 24, 2002) (California) (non-product liability).  Mandamus granted, reversing denial of motion to dismiss.  Designation of an agent for service of process and qualification to do business alone are insufficient to permit general jurisdiction.
  23. Tyler v. Gaines Motor Lines, Inc., 245 F. Supp.2d 730 (D. Md. Jan. 30, 2003) (Maryland) (non-product liability).  Transfer granted.  Having a registered agent for service of process is not consent to general personal jurisdiction.
  24. Reynolds & Reynolds Holdings, Inc. v. Data Supplies, Inc., 301 F. Supp.2d 545 (E.D. Va. Feb. 5, 2004) (Virginia) (non-product liability).  Motion to dismiss granted.  Complying with registration statutes and appointing an agent for service of process do not amount to consent to general personal jurisdiction.
  25. Norfolk Southern Railway Co. v. Burlington Northern, 2005 WL 1363210 (S.D. Miss. June 2, 2005) (Mississippi) (non-product liability).  Motion to dismiss tentatively granted, pending jurisdictional discovery.  Registration to do business and appointment of agent for service of process is not consent to general personal jurisdiction.
  26. DNH, LLC v. In-N-Out Burgers, 381 F. Supp.2d 559 (E.D. La. June 24, 2005) (Louisiana) (non-product liability).  Motion to dismiss granted.  Qualifying to do business in a state and appointing an agent for service of process there do not amount to a general business presence that could sustain general personal jurisdiction.
  27. Gabrish v. Strickland Marine Agency, Inc., 2005 WL 5168410 (S.C. Dist. Dec. 2, 2005) (South Carolina) (non-product liability).  Motion to dismiss granted.  Registration to do business and appointment of agent for service of process does not create general personal jurisdiction.
  28. In re Farmland Industries, Inc., 2007 WL 7694308 (M.D. Fla. March 30, 2007) (Florida) (non-product liability).  Summary judgment granted.  Registration to do business and appointment of agent for service of process does not create general personal jurisdiction.
  29. Asshauer v. Glimcher Realty Trust, 228 S.W.3d 922 (Tex. App. July 12, 2007) (Texas) (non-product liability).  Affirming grant of motion to dismiss.  Registration to do business is insufficient to support general jurisdiction.
  30. Bray v. Fresenius Medical Care Aktiengesellschaft Inc., 2007 WL 7366260 (N.D. Ill. Aug. 30, 2007) (Illinois) (prescription medical product liability). Motion to dismiss granted.  Registration to do business and appointment of agent for service of process is does not alone support general personal jurisdiction.
  31. Keston v. FirstCollect, Inc., 523 F. Supp.2d 1348 (S.D. Fla. Oct. 31, 2007) (Florida) (non-product liability).  Motion to dismiss granted.  Presence of a corporate agent for service of process and a license to do business in a state are not enough to support general personal jurisdiction.
  32. Miller v. Robertson, 2008 WL 270761 (D. Utah Jan. 29, 2008) (Utah) (non-product liability).  Motion to dismiss granted.  Appointment of an agent for process and registration to do business do not create general personal jurisdiction.
  33. North American Catholic Education Programming Foundation, Inc. v. Cardinale, 567 F.3d 8 (1st Cir. May 19, 2009) (Rhode Island) (non-product liability).  Motion to dismiss affirmed.  Appointment of an agent of process alone does not suffice to allow for the exercise of general jurisdiction.
  34. Ayers v. Tanami Trading Corp., 2009 WL 1362402 (D. Utah May 14, 2009) (Utah) (non-product liability).  Motion to dismiss denied on other grounds.  Designation of an agent for service of process is insufficient to permit general jurisdiction.
  35. Continental First Federal, Inc. v. Watson Quality Ford, Inc., 2009 WL 2032401 (M.D. Tenn. July 9, 2009) (Mississippi) (non-product liability).  Transfer denied.  Registering to do business and appointing an in-state agent for service of process do not establish general personal jurisdiction, so the matter cannot be transferred.
  36. Viko v. World Vision, Inc., 2009 WL 2230919 (D. Vt. July 24, 2009) (Vermont) (non-product liability).  Transfer granted.  A defendant foreign corporation’s registered agent does not, by itself, confer general personal jurisdiction over the defendant.
  37. Advanced Datacomm Testing Corp. v. PDIO, Inc., 2009 WL 2477559 (D. Md. Aug. 11, 2009) (Maryland) (non-product liability).  Transfer granted.  Registration to do business and appointment of an agent for service of process do not create general personal jurisdiction.
  38. McManaway v. KBR, Inc., 695 F. Supp.2d 883 (S.D. Ind. Feb. 25, 2010) (Indiana) (non-product liability).  Motion to dismiss granted.  Registration to do business and having an agent for service of process are not sufficient to establish general personal jurisdiction.
  39. Cossaboon v. Maine Medical Center, 600 F.3d 25 (1st Cir. March 25, 2010) (New Hampshire) (non-product liability).  Dismissal for lack of personal jurisdiction affirmed.  Registration to do business alone is an insufficient basis on which to assert personal jurisdiction.
  40. Gallaher v. KBR, Inc., 2010 WL 2901626 (N.D.W. Va. July 21, 2010) (West Virginia) (non-product liability).  Motion to dismiss granted.  Registration to do business and having an agent for service of process are not sufficient to establish general personal jurisdiction.
  41. Harrington v. C.H. Nickerson & Co., 2010 WL 3385034 (D.R.I. Aug. 25, 2010) (Rhode Island (non-product liability). In light of constitutional limitations on personal jurisdiction, registration to do business and appointment of an agent for service of process do not constitute consent to general jurisdiction.
  42. King v. American Family Mutual Insurance Co., 632 F.3d 570 (9th Cir. Jan. 31, 2011) (Montana) (non-product liability).  Grant of motion to dismiss affirmed.  Appointment of an agent for service of process does not, standing alone, create general personal jurisdiction in the absence of causal connection to the state.
  43. Crochet v. Wal-Mart Stores, Inc., 2012 WL 489204 (W.D. La. Feb. 13, 2012) (Louisiana) (non-product liability).  Motion to dismiss granted.  Appointment of an agent for service of process and registration to do business within the state is insufficient to create general personal jurisdiction.
  44. In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 1345175 (E.D. Ky. April 18, 2012) (Ohio, Oklahoma, Texas) (prescription medical product liability).  Motion to dismiss granted.  Registration to do business is insufficient to create general personal jurisdiction.
  45. JRM Investments, Inc. v. National Standard, LLC, 2012 WL 1956421 (Tenn. App. May 31, 2012) (Tennessee) (non-product liability).  Grant of motion to dismiss affirmed.  Appointment of an agent for service of process  is insufficient to create general personal jurisdiction.
  46. White Rosebay Shipping S.A. v. HNA Group Co., 2012 WL 6858239, at *14 (Mag. S.D. Tex. Dec. 5, 2012) (maritime law) (non-product liability).  Motion to dismiss granted.  Appointment of an agent for service of process  is insufficient to create general personal jurisdiction.
  47. Transverse, LLC v. Info Directions, Inc., 2013 WL 3146838 (Mag. W.D. Tex. June 17, 2013) (Texas) (non-product liability).  Motion to dismiss granted.  Appointment of an agent for service of process  is insufficient to create general personal jurisdiction.  Adopted, 2013 WL 12133970 (W.D. Tex. Aug. 30, 2013).
  48. Mio, LLC v. Valentino’s, Inc., 2013 WL 3364392 (M.D. Fla. July 3, 2013) (Florida) (non-product liability).  Summary judgment granted.  Registration to do business and appointment of agent for service of process does not create general personal jurisdiction.
  49. Kuennen v. Stryker Corp., 2013 WL 5873277 (W.D. Va. Oct. 30, 2013) (District of Columbia) (prescription medical product liability). Summary judgment granted.  A business certificate and appointed agent are not independent support for general jurisdiction.
  50. Louisiana Limestone & Logistics, LLC v. Granite Group International, Inc., 2014 WL 1217956 (W.D. La. Feb. 28, 2014) (Louisiana) (non-product liability).  Motion to dismiss granted.  Presence of the registered agent and registered business office alone is insufficient to support the exercise of general jurisdiction.
  51. Robinson v. Knight Protective Service, Inc., 2014 WL 1326096 (S.D. Miss. March 31, 2014) (Mississippi) (non-product liability).  Motion to dismiss granted.  Registration to do business and appointment of agent for service of process is not consent to general personal jurisdiction.
  52. Brown v. CBS Corp., 19 F. Supp.3d 390 (D. Conn. May 14, 2014) (Connecticut) (product liability – non drug/device).  Asbestos motion to dismiss granted.  Corporate registration/agent for service of process insufficient consent to justify jurisdiction after Bauman. Affirmed 2/19/16 see below.
  53. Gliklad v. Bank Hapoalim B.M., 2014 WL 3899209 (N.Y. Sup. Aug. 4, 2014) (New York) (non-product liability).  Motion to dismiss granted.  Rejecting jurisdiction through consent by service on registered agent.
  54. Overhill Farms Inc. v. West Liberty Foods LLC, 2014 WL 4180920 (C.D. Cal. Aug. 21, 2014) (California) (non-product liability).  Motion to dismiss granted.   Registration to do business insufficient to create general jurisdiction.
  55. Chambers v. Weinstein, 2014 WL 4276910, 997 N.Y.S.2d 668 (table) (N.Y. Sup. Aug. 22, 2014) (New York) (non-product liability). Motion to dismiss granted. Severance granted.  No jurisdiction on the basis of consent by registration of agent in-state.
  56. U.S. ex rel. Imco General Construction, Inc. v. Insurance Co. of Pennsylvania, 2014 WL 4364854 (W.D. Wash. Sept. 3, 2014) (Washington) (non-product liability).  Motion to dismiss granted.   Registration to do business insufficient to create general jurisdiction.
  57. Cossart v. United Excel Corp., 2014 WL 4927041 (D. Mass. Sept. 30, 2014) (Massachusetts) (non-product liability).  Motion to dismiss granted.   Registration to do business insufficient to create general jurisdiction.  Reversed on other grounds, 804 F.3d 13 (1st Cir. 2015) (specific jurisdiction held proper).
  58. Recao v. Bell Helicopter Textron, Inc., 2014 WL 12595302 (S.D. Fla. Sept. 23, 2014) (Florida) (product liability – non drug/device).  Motion to dismiss granted.  Registration to do business and having a registered agent is insufficient to create general personal jurisdiction.
  59. In re Asbestos Products Liability Litigation (No. VI), 2014 WL 5394310 (E.D. Pa. Oct. 23, 2014) (Virgin Islands) (product liability – non drug/device).  Motion to dismiss granted in asbestos case.  Registration to do business and appointment of an agent for service of process did not establish general jurisdiction.
  60. Sullivan v. Sony Music Entertainment, 2014 WL 5473142 (N.D. Ill. Oct. 29, 2014) (Illinois) (non-product liability). Motion to dismiss granted.   Registration to do business and having agent for service of process is not consent to general jurisdiction.
  61. AstraZeneca AB v. Mylan Pharmaceuticals, Inc., 72 F. Supp.3d 549 (D. Del. Nov. 5, 2014), certified for interlocutory appeal on other issue, 2014 WL 7533913 (D. Del. Dec. 17, 2014) (Delaware) (non-product liability).  Motion to dismiss granted in part.  No general jurisdiction through consent by registration to do business.  Denying motion to dismiss on specific jurisdiction.
  62. Shrum v. Big Lots Stores, Inc., 2014 WL 6888446 (C.D. Ill. Dec. 8, 2014) (Illinois) (product liability – non drug/device). Motion to dismiss granted.  No general jurisdiction by consent for having registration and agent for service of process.
  63. Smith v. Union Carbide Corp., 2015 WL 191118 (Mo. Cir. St. Louis City Jan. 12, 2015) (Missouri) (product liability – non drug/device). Motion to dismiss granted.  Asbestos defendant’s registration to do business and agent for service of process insufficient to create general jurisdiction by consent.
  64. Chatwal Hotels & Resorts LLC v. Dollywood Co., 90 F. Supp.3d 97 (S.D.N.Y. Feb. 6, 2015) (New York) (non-product liability). Motion to dismiss granted in part and denied in part.  Rejecting consent by registering to do business.
  65. Royal Acquisitions 001, LLC v. Ansur America Insurance Co., 2015 WL 14376894 (S.D. Fla. March 27, 2015) (Florida) (non-product liability).  Motion to dismiss granted.  Registration to do business and appointment of an agent for service of process did not establish general jurisdiction.
  66. Henderson v. United Student Aid Funds, Inc., 2015 WL 12658485 (S.D. Cal. April 8, 2015) (California) (non-product liability).  Motion to dismiss granted.  Registration to do business, even with other contacts, did not establish general jurisdiction.
  67. Fiduciary Network, LLC v. Buehler, 2015 WL 2165953 (N.D. Tex. May 8, 2015) (Texas) (non-product liability). Motion to remand denied.  Rejecting general jurisdiction by consent through “registration of an agent for process and registration to do business.”
  68. Hunt v. Auto-Owners Insurance Co., 2015 WL 3626579 (D. Nev. June 10, 2015) (Nevada) (non-product liability).  Neither registration nor an agent for service of process is sufficient to establish jurisdiction.
  69. Keeley v. Pfizer Inc., 2015 WL 3999488 (E.D. Mo. July 1, 2015) (Missouri) (prescription medical product liability). Motion to dismiss granted.  No consent to general jurisdiction by registration to do business.
  70. Rozumek v. Union Carbide Corp., 2015 WL 12831301 (S.D. Ill. July 1, 2015) (Illinois) (product liability – non drug/device). Motion to dismiss granted in asbestos case.  Registration to do business did not establish general jurisdiction.
  71. Rozumek v. General Electric Co., 2015 WL 12829795 (S.D. Ill. July 1, 2015) (Illinois) (product liability – non drug/device). Motion to dismiss granted in asbestos case.  Registration to do business did not establish general jurisdiction.
  72. Dokoozian Construction LLC v. Executive Risk Specialty Insurance Co., 2015 WL 12085859 (W.D. Wash. July 28, 2015) (Washington) (non-product liability).  Motion to dismiss granted.  Appointment of agent for service of process is insufficient to create general jurisdiction.
  73. Public Impact, LLC v. Boston Consulting Group, Inc., 117 F. Supp.3d 732 (M.D.N.C. Aug. 3, 2015) (North Carolina) (non-product liability).  Motion to dismiss granted.  Rejecting jurisdiction by consent by registration to do business.
  74. Mullen v. Bell Helicopter Textron, Inc., 136 F. Supp.3d 740 (S.D. Miss. Aug. 17, 2015) (Mississippi) (product liability – non drug/device). Motion to dismiss granted.  Registration to do business did not establish general jurisdiction.
  75. McCourt v. A.O. Smith Water Products Co., 2015 WL 4997403 (D.N.J. Aug. 20, 2015) (New Jersey) (product liability – non drug/device). Motion to dismiss granted in asbestos case.  No consent to jurisdiction by registering to do business.
  76. Pitts v. Ford Motor Co., 127 F. Supp.3d 676 (S.D. Miss. Aug. 26, 2015) (Mississippi) (product liability – non drug/device). Motion to dismiss granted.  Registration and appointment of agent for service of process insufficient to create general jurisdiction.
  77. Cox v. Alco Industries, Inc., 2015 WL 10891167 (Wash. Super. Sept. 10, 2015) (Washington) (product liability – non drug/device). Motion to dismiss granted in asbestos case.  Registration to do business, even with other contacts, did not establish general jurisdiction.
  78. Freedman v. Suntrust Banks, Inc., 139 F. Supp.3d 271 (D.D.C.Sept. 21, 2015) (District of Columbia) (non-product liability).  Motion to transfer granted.  Registration and appointment of agent for service of process insufficient to create general jurisdiction.
  79. United States Bank National Ass’n v. Bank of America, N.A., 2015 WL 5971126 (S.D. Ind. Oct. 14, 2015) (Indiana)  (non-product liability).  Motion to transfer granted.  Registration to do business not a waiver of objection to jurisdiction.
  80. Surita v. AM General LLC, 2015 WL 12826471 (N.D. Ill. Nov. 4, 2015) (Illinois) (product liability – non drug/device). Motion to dismiss granted in asbestos case.  Registration and appointment of agent for service of process insufficient to create general jurisdiction.
  81. Freeney v. Bank of America Corp., 2015 WL 12535021 (C.D. Cal. Nov. 19, 2015) (California)  (non-product liability).  Motion to dismiss granted.  Registration and appointment of agent for service of process insufficient to create general jurisdiction.  Jurisdictional discovery denied.
  82. ADT, LLC v. Capital Connect, Inc., 2015 WL 7352199 (N.D. Tex. Nov. 20, 2015) (Texas) (non-product liability).  Motion to dismiss granted.  Registration and appointment of agent for service of process are not consent to general jurisdiction.
  83. Handshoe v. Yount, 2015 WL 7572344 (S.D. Miss. Nov. 24, 2015) (Mississippi) (non-product liability).  Motion to dismiss granted.  Registration and appointment of agent for service of process insufficient to create general jurisdiction.
  84. Dimitrov v. Nissan North America, Inc., 2015 WL 9304490 (N.D. Ill. Dec. 22, 2015) (Illinois) (non-product liability). Motion to dismiss granted.  Defendant did not consent to jurisdiction by registering to do business.
  85. Angelini Metal Works Co. v. Hubbard Iron Doors, Inc., 2016 WL 6304476 (C.D. Cal. Jan. 5, 2016) (California) (non-product liability).  Motion to dismiss granted.  Registration to do business, even with other contacts, is insufficient to support general jurisdiction.
  86. Tulsa Cancer Institute, PLLC v. Genentech Inc., 2016 WL 141859 (N.D. Okla. Jan. 12, 2016) (Oklahoma) (prescription medical product liability).   Multi-plaintiff complaint.  Reconsideration and motion to dismiss granted.  That resident and non-resident plaintiffs share a common nucleus of facts does not provide non-residents with specific personal jurisdiction.
  87. Spear v. Marriott Hotel Services, Inc., 2016 WL 194071 (E.D. Pa. Jan. 15, 2016) (Pennsylvania) (non-product liability).  Motion to dismiss granted.  Registration to do business, by itself, is insufficient to establish general jurisdiction.
  88. Demaria v. Nissan, Inc., 2016 WL 374145 (N.D. Ill. Feb. 1, 2016) (Illinois) (product liability – non drug/device).  Multi-plaintiff class action complaint.  Motion to dismiss granted.  Defendant did not consent to jurisdiction by registering to do business.  Pendent jurisdiction does not exist to allow non-residents allegedly injured by same product defect sue because one resident plaintiff can do so.
  89. Brown v. Lockheed-Martin Corp., 814 F.3d 619 (2d Cir. Feb. 18, 2016) (Connecticut) (product liability – non drug/device).  “If mere registration and the accompanying appointment of an in state agent − without an express consent to general jurisdiction – nonetheless sufficed to confer general jurisdiction by implicit consent, every corporation would be subject to general jurisdiction in every state in which it registered, and Daimler’s ruling would be robbed of meaning by a back‐door thief.”   Affirming 19 F. Supp.3d 390, above.
  90. Long v. Patton Hospitality Management, LLC, 2016 WL 760780 (E.D. La. Feb. 26, 2016) (Louisiana) (non-product liability).  Motion to dismiss granted.  Contacts including registering to do business and maintaining a registered agent for service insufficient to establish general personal jurisdiction.
  91. Hood v. Ascent Medical Corp., 2016 WL 1366920 (Mag. S.D.N.Y. March 3, 2016) (New York) (non-product liability).  Recommending vacation of default judgment. Jurisdiction by consent argument based on contractual choice of law provision “borderline frivolous.”  Adopted 2016 WL 3453656, below.
  92. Firefighters’ Retirement System v. Royal Bank PLC, 2016 WL 1254366 (M.D. La. March 29, 2016) (Louisiana) (non-product liability).  Motion to dismiss granted.  Registration to do business, appointment of agent for service of process, and payment of taxes insufficient.  Registration was not consent to general jurisdiction.
  93. Thompson v. Carnival Corp., 174 F. Supp.3d 1327 (S.D. Fla. March 30, 2016) (maritime law) (product liability – non drug/device).  Motion to dismiss granted. Contractual consent to jurisdiction insufficient absent independent basis for jurisdiction. Rule 4(k)(2) cannot confer general jurisdiction where defendant is not “at home.”
  94. Weiss v. National Westminster Bank PLC, 176 F. Supp.3d 264 (E.D.N.Y. March 31, 2016) (New York) (non-product liability).  Motion to dismiss denied, but only as to specific jurisdiction.  Registration was not consent to general jurisdiction.
  95. Strauss v. Credit Lyonnais, S.A., 175 F. Supp.3d 3 (E.D.N.Y. March 31, 2016) (New York) (non-product liability).  Motion to dismiss denied, but only as to specific jurisdiction.  Registration was not consent to general jurisdiction.
  96. In re Foreign Exchange Benchmark Rates Antitrust Litigation, 2016 WL 1268267 (S.D.N.Y. March 31, 2016) (New York) (non-product liability).  Granting motion to dismiss.  Registration was not consent to general jurisdiction. General jurisdiction criteria the same under both federal and state law.
  97. Hovsepian v. Crane Co., 2016 WL 2997641 (E.D. Mo. April 13, 2016) (Missouri) (product liability – non drug/device).  Granting motion to dismiss.  Out-of-state asbestos plaintiff failed to establish general personal jurisdiction or consent to general jurisdiction.
  98. Agribusiness United DMCC v. Blue Water Shipping Co., 2017 WL 1354144 (S.D. Tex. April 13, 2017) (Texas) (non-product liability). Motion to dismiss granted.  Registration to do business and appointment of agent for service of process do not establish general jurisdiction.
  99. Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. April 18, 2016) (Delaware) (product liability – non drug/device). Denial of motion to dismiss reversed.  Registration to do business and appointment of agent for service of process do not establish consent to general jurisdiction.  Prior contrary precedent is no longer viable after Bauman.
  100. Display Works, LLC, v. Bartley, 182 F. Supp.3d 166 (D. N.J. April 25, 2016) (New Jersey) (non-product liability). Motion to dismiss granted.  Registration to do business is not consent to general jurisdiction, nor is doing business in a state.  Prior contrary precedent is no longer viable after Bauman.
  101. Beard v. Smithkline Beecham Corp., 2016 WL 1746113 (E.D. Mo. May 3, 2016) (Missouri) (prescription medical product liability). Motion to transfer granted.  Registration to do business and appointment of agent do not establish consent to general jurisdiction.  Prior contrary precedent is no longer viable after Bauman.
  102. In Re: Zofran (Ondansetron) Products Liability Litigation, 2016 WL 2349105 (D. Mass. May 4, 2016) (Missouri) (prescription medical product liability). Motion to dismiss granted.  Motion to remand denied.  Registration to do business and appointment of agent for service do not establish consent to general jurisdiction.  Prior contrary precedent is no longer viable after Bauman, and would “distort” the registration statute.
  103. Oversen v. Kelle’s Transportation Service, 2016 WL 8711343 (D. Utah May 12, 2016) (Utah) (product liability – non drug/device).  Motion to transfer granted.  Registration to do business and appointment of agent do not establish consent to general jurisdiction.  Jurisdictional discovery denied.
  104. Leibovitch v. Islamic Republic of Iran, 188 F. Supp.3d 734 (N.D. Ill. May 19, 2016) (Illinois) (non-product liability). Motions to quash granted. Bauman is not limited to defendants and applies to third-party subpoenas.  Registration to do business and appointment of agent for service do not establish general jurisdiction by consent or waiver.  Prior contrary precedent is no longer viable after Bauman.
  105. Aclin v. PD-RX Pharmaceuticals, Inc., 189 F. Supp.3d 1294 (W.D. Okla. June 1, 2016) (Oklahoma) (prescription medical product liability). Motion to dismiss granted.  Registration to do business and appointment of agent for service of process do not establish consent to general jurisdiction.  See Guillette v. PD-RX Pharmaceuticals. Inc., 2016 WL 3094073 (W.D. Okla. June 1, 2016); Manning v. PD-RX Pharmaceuticals Inc., 2016 WL 3094075 (W.D. Okla. June 1, 2016); Nauman v. PD-RX Pharmaceuticals Inc., 2016 WL 3094081 (W.D. Okla. June 1, 2016) (identical opinions).
  106. Magna Powertrain De Mexico S.A. De C.V. v. Momentive Performance Materials USA LLC, 2016 WL 3574652 (E.D. Mich. June 16, 2016) (Michigan) (product liability – non drug/device). Motion to transfer granted.  Registration to do business and appointment of agent for service is not consent to general jurisdiction.
  107. Hood v. Ascent Medical Corp., 2016 WL 3453656 (S.D.N.Y. June 20, 2016) (New York) (non-product liability). Adopting magistrate’s recommendation (2016 WL 1366920, above) to grant motion to dismiss.  Forum selection clause not consent to general jurisdiction. Affirmed 691 F. Appx. 8, below.
  108. Garcia v. LQ Properties, Inc., 2016 WL 3384644 (N.D. Ind. June 20, 2016) (Indiana) (non-product liability).  Transfer granted.  Registration to do business, even with other contacts, is insufficient to support general jurisdiction.
  109. Johnson v. Barrier, 2016 WL 3520157 (N.D. Ill. June 28, 2016) (Illinois) (non-product liability). Motion to dismiss granted.  Consent to jurisdiction in previous cases not judicial estoppel.
  110. Singh v. Diesel Transportation, LLC, 2016 WL 3647992 (D. N.J. July 7, 2016) (New Jersey) (non-product liability). Motion to transfer granted.  No consent to jurisdiction through registration and appointment of agent for service.
  111. Evans v. Andy & Evan Industries, Inc., 2016 WL 8787062, at *3 (S.D. Fla. July 15, 2016) (Florida) (non-product liability). Motion to dismiss granted as to general jurisdiction; denied as to specific jurisdiction; transfer granted.  Registration to do business, even with other contacts, is insufficient to support general jurisdiction.
  112. Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874 (August 29, 2016) (California) (prescription medical product liability). Denial of dismissal affirmed on other grounds.  Registration to do business and appointment of an agent for service of process does not create general personal jurisdiction. Reversed 137 S. Ct. 1773, on other (very important) grounds as discussed here.
  113. Bonkowski v. HP Hood, LLC, 2016 WL 4536868 (E.D.N.Y. Aug. 30, 2016) (New York) (product liability – non-drug/device). Motion to transfer granted.  No consent to general jurisdiction by registration to do business.  Prior contrary consent precedent no longer viable after Bauman.
  114. Erwin v. Ford Motor Co., 2016 WL 7655398 (M.D. Fla. Aug. 31, 2016) (Florida) (product liability – non-drug/device). Motion to dismiss deferred to consider transfer.  No consent to general jurisdiction by appointment of agent for service of process.
  115. Magwitch, LLC v. Pusser’s West Indies Ltd., 200 So. 3d 216 (Fla. App. Sept. 7, 2016) (Florida) (non-product liability).  Affirming grant of motion to dismiss.  Registration to do business and appointment of agent for service is not consent to general jurisdiction.
  116. Magill v. Ford Motor Co., 379 P.3d 1033 (Colo. Sept. 12, 2016) (Colorado) (product liability – non drug/device). Reversing denial of motion to dismiss.  Registration to do business and appointment of agent for service is not consent to general jurisdiction.
  117. Sciortino v. CMG Capital Management Group, Inc., 2016 WL 4799099 (E.D. La. Sept. 14, 2016) (Louisiana) (non-product liability). Motion to dismiss granted.  Registration to sell securities in state not consent to general jurisdiction.
  118. Gulf Coast Bank & Trust Co, v. Designed Conveyor Systems, LLC, 2016 WL 4939113 (M.D. La. Sept. 14, 2016) (Louisiana) (non-product liability). Motion to dismiss granted.  No consent to jurisdiction through licensing, registration, or appointment of agent for service of process.
  119. George v. A.W. Chesterton Co., 2016 WL 4945331 (W.D. Pa. Sept. 16, 2016) (Pennsylvania) (product liability – non-drug/device). Remanding for lack of jurisdiction.  Registration to do business is not retroactive consent to general jurisdiction in asbestos case where it occurred after the alleged injury.
  120. U.S. Bank National Ass’n v. Bank of America, N.A., 2016 WL 5118298 (S.D.N.Y. Sept. 20, 2016) (Indiana) (non-product liability). Retransfer denied.  Registration and appointment of in-state agent is neither consent to nor waiver of general jurisdiction.
  121. American Insurance Co. v. R&Q Reinsurance Co., 2016 WL 5930589, at *2 (N.D. Cal. Oct. 12, 2016) (California)  (non-product liability).  Motion to dismiss granted.  Registration to do business and appointment of agent does not create general jurisdiction.
  122. Addelson v. Sanofi S.A., 2016 WL 6216124 (E.D. Mo. Oct. 25, 2016) (Missouri) (prescription medical product liability).  Motion to dismiss granted.  Registration to do business and appointment of agent is not consent to general jurisdiction.  Prior contrary precedent is no longer viable after Bauman.
  123. Perez v. Air and Liquid Systems Corp., 2016 WL 7049153 (S.D. Ill. Dec. 2, 2016) (Illinois) (product liability – non-drug/device). Motion to dismiss granted.  Asbestos case.  No consent to jurisdiction by registration and appointment of agent.
  124. Bertolini-Mier v. Upper Valley Neurology Neurosurgery, P.C., 2016 WL 7174646 (D. Vt. Dec. 7, 2016) (Vermont) (non-product liability). Motion to dismiss granted.  Motion to dismiss denied on other grounds pending jurisdictional discovery.  No consent to jurisdiction by registration to do business.
  125. Taormina v. Thrifty Car Rental, 2016 WL 7392214 (S.D.N.Y. Dec. 21, 2016) (New York) (non-product liability). Motion to dismiss granted.  No consent to jurisdiction through registration and appointment of agent for service.  Prior contrary precedent no longer viable after Bauman.
  126. Minholz v. Lockheed Martin Corp., 227 F. Supp.3d 249  (N.D.N.Y. Dec. 30, 2016) (New York) (product liability – non-drug/device). Motion to dismiss granted.  No consent to jurisdiction through registration and appointment of agent for service.  Prior contrary precedent no longer viable after Bauman.
  127. Gulf Coast Bank v. Designed Conveyor Systems, LLC, 2017 WL 120645 (M.D. La. Jan. 12, 2017) (Louisiana) (non-product liability). Denying motion to alter judgment.  No consent to jurisdiction through registration and appointment of agent for service.  Prior contrary precedent no longer viable after Bauman, and interpreting a registration statute as providing consent to general jurisdiction would “rob [Bauman] of its central meaning.”
  128. Sullivan v. Barclays PLC, 2017 WL 685570 (S.D.N.Y. Feb. 21, 2017) (New York) (non-product liability). Motion to dismiss granted.  Forum selection clause is not consent to general jurisdiction.  Neither is registration to do business.
  129. State ex rel. Norfolk Southern Railway Co. v. Dolan, 512 S.W.3d 41 (Mo. Feb. 28, 2017) (Missouri) (non-product liability). Writ of prohibition issued.  No consent to jurisdiction through registration and appointment of agent.  Contrary prior precedent no longer viable after Bauman.
  130. Figueroa v. BNSF Railway Co., 390 P.3d 1019 (Or. March 2, 2017) (Oregon) (non-product liability). Mandamus granted.  No consent to general jurisdiction through registration and appointment of agent for service of process.  Registration is not implied consent to personal jurisdiction.
  131. Am Trust v. UBS AG, 681 F. Appx. 587 (9th Cir. March 3, 2017) (California) (non-product liability). Affirming dismissal for lack of jurisdiction.  No consent to jurisdiction through registration and appointment of agent.  Acceptance of service in prior litigation insufficient.
  132. Phoenix Insurance Co. v. Cincinnati Indemnity Co., 2017 2017 WL 3225924 (Mag. D.R.I. March 3, 2017) (Rhode Island) (non-product liability).  Motion to transfer granted. No consent to general jurisdiction through insurance registration and appointment of the agent for service.  The statues cannot be “construed as a consent or submission to personal jurisdiction,” and if they could they would violate Due Process.  Adopted 2017 WL 2983879 (D.R.I. July 13, 2017).
  133. New York Commercial Bank v. Heritage Green Development, LLC, 2017 WL 954197 (Va. Cir. March 7, 2017) (Virginia) (non-product liability).  Motion to quash service granted.  Registration to do business insufficient to establish general jurisdiction.
  134. Rizack v. Signature Bank, N.A., 2017 WL 5197917 (Fla. Cir. March 20, 2017) (Florida) (non-product liability).  Registration to do business insufficient to establish general jurisdiction.
  135. Kearns v. New York Community Bank, 400 P.3d 182 (table), 2017 WL 1148418 (Kan. App. March 24, 2017) (Kansas) (non-product liability) (unpublished). Affirming dismissal for lack of jurisdiction.  Consent to jurisdiction by registration to do business in-state by non-party subsidiary insufficient.
  136. Muenstermann v. United States, 2017 WL 1408037 (S.D. Ill. April 20, 2017) (Illinois) (non-product liability).  Motion to dismiss granted.  No jurisdiction through registration and appointment of agent for service.  Contrary prior precedent no longer viable after Bauman.
  137. Mischel v. Safe Haven Enterprises, LLC, 2017 WL 1384214 (N.Y. Sup. April 17, 2017) (New York) (non-product liability).  Motion to dismiss granted.  No jurisdiction through registration and appointment of agent for service.  Contrary prior precedent no longer viable after Bauman.
  138. MacCormack v. The Adel Wiggins Group, 2017 WL 1426009 (E.D. Mo. April 21, 2017) (Missouri) (product liability – non-drug/device).  Granting motion for reconsideration, and dismissing.  No consent to jurisdiction for registration and an appointment of agent for service.  Contrary prior precedent no longer viable under Norfolk Southern v. Dolan.
  139. Justiniano v. First Student Management LLC, 2017 WL 1592564 (E.D.N.Y. April 26, 2017) (New York) (non-product liability).  Motion to transfer granted.  No consent to jurisdiction through registration and appointment of agent for service.  Contrary prior precedent no longer viable after Bauman.
  140. L.A. Gem & Jewelry Design, Inc. v. Ecommerce Innovations, LLC, 2017 WL 1535084 (C.D. Cal. April 27, 2017) (California) (non-product liability).  Motion to dismiss granted.  Registration to do business insufficient to support general jurisdiction.
  141. Alvarracin v. Volume Services, Inc., 2017 WL 1842701 (W.D. Mo. May 4, 2017) (Missouri) (non-product liability).  Motion to transfer granted.  No consent to jurisdiction through registration and appointment of agent for service.  Contrary prior precedent no longer viable after Bauman.
  142. McCaffrey v. Windsor at Windermere Ltd. Partnership, 2017 WL 1862326, at *4 (E.D. Pa. May 8, 2017) (Pennsylvania) (non-product liability).  Motion to dismiss granted.  Registration to do business insufficient to support general jurisdiction.
  143. Wal-Mart Stores, Inc. v. Lemaire, 395 P.3d 1116 (Ariz. App. May 11, 2017) (Arizona) (non-product liability).  Reversing denial of motion to dismiss.  No express or implied consent to jurisdiction through registration and appointment of agent for service.
  144. Antoon v. Securus Technologies, Inc., 2017 WL 2124466 (W.D. Ark. May 15, 2017) (Arkansas) (non-product liability).  Motion to dismiss granted. No consent to jurisdiction through registration and appointment of agent for service, where statute provided express jurisdictional restriction, and “exception [would be] so large as to swallow the rule.”
  145. Madlock v. Westar Energy, Inc., 517 S.W.3d 678 (Mo. App. May 16, 2017) (Missouri) (non-product liability).  Grant of motion to dismiss affirmed.  Corporate representation is not a basis for general personal jurisdiction.
  146. Matthews v. BNSF Railway Co., 2017 WL 2266891 (W.D. Mo. May 23, 2017) (Missouri) (non-product liability).  Motion for reconsideration granted and transferred.  No consent to jurisdiction for registration and appointment of agent for service.
  147. Hood v. Ascent Medical Corp., 691 F. Appx. 8 (2d Cir. May 24, 2017) (New York) (non-product liability). Affirming grant of motion to dismiss.  Forum selection clause insufficient to constitute consent to general jurisdiction. Affirming, 2016 WL 1366920, and 2016 WL 3453656, above.
  148. Mercury Rents, Inc. v. Crenshaw Enterprises Ltd., 2017 WL 2382483 (W.D. La. May 30, 2017) (Louisiana) (non-product liability).  Motion to dismiss granted. Registration to do business and appointment of agent for service of process are not consent to general jurisdiction.
  149. Famular v. Whirlpool Corp., 2017 WL 2470844 (S.D.N.Y. June 7, 2017) (New York) (non-product liability).  Motion to dismiss granted as to out-of-state class action plaintiffs.  No consent to jurisdiction through registration and appointment of agent for service. Contrary prior precedent longer viable after Bauman.
  150. Siegfried v. Boehringer Ingelheim Pharmaceuticals, Inc., 2017 WL 2778107 (E.D. Mo. June 27, 2017) (Missouri) (prescription medical product liability).  Motion to dismiss granted.  Out-of-state plaintiffs lacked personal jurisdiction Bauman and BMS.  No consent to jurisdiction through and appointment of agent for service.
  151. Everett v. Aurora Pump Co., 2017 WL 2778091 (E.D. Mo. June 27, 2017) (Missouri) (product liability – non-drug/device).  Motion to dismiss granted.  No consent to jurisdiction through registration and appointment of agent for service.
  152. Boswell v. Cable Services Co., 2017 WL 2815077 (D.N.J. June 28, 2017) (New Jersey) (non-product liability).  Motion to dismiss granted.  No consent to jurisdiction through registration and appointment of agent for service.  Statute lacked “express language” indicating consent.  Contrary prior precedent no longer viable after Bauman.
  153. Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, 898 N.W.2d 70 (Wis. June 30, 2017) (Wisconsin) (non-product liability).  Reversing denial of dismissal and remanding.  No consent to jurisdiction through registration and appointment of the agent.  Statute contains no language regarding consent or jurisdiction.  Contrary prior precedent no longer viable after Bauman.
  154. Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, 164 A.3d 435 (N.J. Super. App. Div. July 5, 2017) (New Jersey) (non-product liability).  Dismissal for lack of jurisdiction affirmed.  Registration to do business and appointment of agent for service of process do not establish consent to general jurisdiction.  Prior contrary precedent is no longer viable after Bauman.
  155. JPB Installers, LLC v. Dancker, Sellew & Douglas, Inc., 2017 WL 2881142 (M.D.N.C. July 6, 2017) (North Carolina) (non-product liability).  Motion to dismiss granted.  Registration to do business does not establish general personal jurisdiction.
  156. Nationwide Signs, LLC v. National Signs, LLC, 2017 WL 2911577 (E.D. La. July 7, 2017) (Louisiana) (non-product liability).  Motion to dismiss granted.  Registration to do business does not establish general personal jurisdiction.
  157. MG Design Assocs. Corp. v. CoStar Realty Information, Inc., ___ F. Supp.3d ___, 2017 WL 3070848 (N.D. Ill. July 19, 2017) (Illinois) (non-product liability).  Motion to dismiss granted in pertinent part and denied in part on other grounds.  Registration to do business does not establish general personal jurisdiction.
  158. Hinkle v. Continental Motors, Inc., 2017 WL 3333120 (M.D. Fla. July 21, 2017) (Florida) (product liability – non-drug/device).  Motion to dismiss granted.  Registration to do business does not establish general personal jurisdiction.
  159. Smith/Hill v. United States Steel Co., No. 170207649, order & hearing transcript (Pa. C.P. Philadelphia Co. July 24, 2017) (Pennsylvania) (product liability – non-drug/device).  Jurisdictional preliminary objections granted. Registration to do business cannot establish general personal jurisdiction after BNSF and BMS.  A state registration statute cannot legitimize what is otherwise a due process violation.
  160. Northern Frac Proppants, II, LLC v. 2011 NF Holdings, LLC, 2017 WL 3275896 (Tex. App. July 27, 2017) (unpublished) (Texas) (non-product liability).  Affirming in part and reversing in part on the basis of lack of jurisdiction.  General jurisdiction not established registration to do business and having agent for service of process.
  161. Sebastian v. Davol, Inc., 2017 WL 3325744 (W.D.N.C. Aug. 3, 2017) (North Carolina) (prescription medical product liability).  Motion to dismiss granted. Registration to do business does not establish general personal jurisdiction.
  162. Frontpoint Asian Event Driven Fund, L.P. v. Citibank, N.A., 2017 WL 3600425 (S.D.N.Y. Aug. 18, 2017) (New York) (non-product liability).  Motion to dismiss granted.  No consent to general jurisdiction through registration under banking statute.
  163. Wilderness USA, Inc. v. DeAngelo Bros. LLC, ___ F. Supp.3d ___, 2017 WL 3635123 (W.D.N.Y. Aug. 23, 2017) (New York) (non-product liability).  Motion to dismiss granted.  Registration to do business and appointment of agent for service is not consent to general personal jurisdiction.  The statute did not support such a reading, and contrary prior precedent is no longer viable after Bauman and Brown.
  164. Antonini v. Ford Motor Co., 2017 WL 3633287 (M.D. Pa. Aug. 23, 2017) (Pennsylvania) (product liability – non-drug/device).  Registration to do business, among other contacts, insufficient to make corporation “at home” for general jurisdiction purposes.
  165. Guaranteed Rate, Inc. v. Conn, ___ F. Supp.3d ___, 2017 WL 3704845 (N.D. Ill. Aug. 28, 2017) (Illinois) (non-product liability).  Motion to dismiss granted.  Registration to do business insufficient to support general jurisdiction.
  166. Jinright v. Johnson & Johnson, Inc., 2017 WL 3731317 (E.D. Mo. Aug. 30, 2017) (Missouri) (pharmaceutical drug product liability).  Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal.  No general jurisdiction under Bauman.  No specific jurisdiction over non-resident plaintiff claims under BMS.  Alleged in-state contacts had no connection with the alleged injuries and the allegedly harmful products.  The in-state contacts belonged to another party.
  167. Australia & New Zealand Banking Group Ltd. v. APR Energy Holding Ltd., 2017 WL 3841874 (S.D.N.Y. Sept. 1, 2017) (New York) (non-product liability).  Granting motion to quash subpoena for lack of jurisdiction.  Compelling discovery requires personal jurisdiction.  No consent to jurisdiction through registration to do business.  Jurisdictional discovery denied.
  168. Amelius v. Grand Imperial LLC, 2017 WL 4158854, ___ N.Y.S.3d ___ (N.Y. Sup. Sept. 11, 2017) (New York) (non-product liability).  Denying motion to compel compliance with subpoena.  No consent to jurisdiction through registration to do business and appointment of agent for service of process.  Pre-Bauman contrary cases are no longer good law.
  169. Spratley v. FCA US LLC, 2017 WL 4023348 (N.D.N.Y. Sept. 12, 2017) (New York) (product liability – non-drug/device).  Motion to dismiss granted in part. Multi-plaintiff class action complaint.  No consent to general jurisdiction through registration to do business and appointment of agent for service.  Pre-Bauman contrary cases are no longer good law.  Dismissing claims of non-resident plaintiffs.  A non-resident’s exposure to an alleged nationwide marketing scheme does not establish specific jurisdiction.  No pendent jurisdiction based on single in-state resident’s claims.
  170. Aspen American Insurance Co. v. Interstate Warehousing, Inc., ___ N.E.3d ___, 2017 WL 4173349 (Ill. Sept. 21, 2017) (Illinois) (non-product liability).  Denial of motion to dismiss reversed.  Jurisdictional theory that would allow non-residents to sue the defendant in every state where it operated a warehouse fails Due Process.  Registration to do business and appointment of agent for service is not consent to general personal jurisdiction.  The statute did not support such a reading.
  171. Douthit v. Janssen Research & Development, LLC, 2017 WL 4224031 (S.D. Ill. Sept. 22, 2017); Braun v. Janssen Research & Development, LLC, 2017 WL 4224034 (S.D. Ill. Sept. 22, 2017); Bandy v. Janssen Research & Development, LLC, 2017 WL 4224035 (S.D. Ill. Sept. 22, 2017); Pirtle v. Janssen Research & Development, LLC, 2017 WL 4224036 (S.D. Ill. Sept. 22, 2017); Roland v. Janssen Research & Development, LLC, 2017 WL 4224037 (S.D. Ill. Sept. 22, 2017); Woodall v. Janssen Research & Development, LLC, 2017 WL 4237924 (S.D. Ill. Sept. 22, 2017); and Berousee v. Janssen Research & Development, LLC, 2017 WL 4255075 (S.D. Ill. Sept. 26, 2017) (Illinois) (pharmaceutical drug product liability).  Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal.  No general jurisdiction under Bauman.  No specific jurisdiction over non-resident plaintiff claims under BMS.  Conducting in-state clinical trials not sufficient contact to support specific personal jurisdiction in suits by non-residents.
  172. HomeRun Products, LLC v. Twin Towers Trading, Inc., 2017 WL 4293145 (D.N.D. Sept. 27, 2017) (North Dakota) (non-product liability).  Motion to dismiss denied on other grounds, pending jurisdictional discovery.  Corporate registration does not support general jurisdiction.
  173. Salgado v. OmniSource Corp., 2017 WL 4508085 (Tex. App. Oct. 10, 2017) (Texas) (product liability – non-drug/device).  Affirming dismissal for lack of jurisdiction. No general jurisdiction through registration to do business and appointment of agent for service.  Contracting with in-state entity not enough for specific jurisdiction where plaintiff and accident are out of state.
  174. Sae Han Sheet Co. v. Eastman Chemical Corp., 2017 WL 4769394 (S.D.N.Y. Oct. 19, 2017) (New York) (product liability – non-drug/device).  Motion to dismiss granted.  No consent to general jurisdiction through registration and appointment of agent for service.  Pre-Bauman contrary cases are no longer good law.  No specific jurisdiction under BMS for harm to a nonresident caused by products not sole in-state.
  175. Western Express, Inc. v. Villanueva, 2017 WL 4785831 (M.D. Tenn. Oct. 24, 2017) (Tennessee) (non-product liability).  Motion to dismiss granted.  No consent to general jurisdiction through registration and appointment of agent for service.
  176. Congdon v. Cheapcaribbean.com, Inc., 2017 WL 5069960, at *8 (N.D. Ill. Nov. 3, 2017) (Illinois) (non-product liability).  Motion to dismiss granted.  No consent to general jurisdiction through registration and appointment of agent for service.
  177. Grice v. VIM Holdings Group, LLC, 2017 WL 6210891 (D. Mass. Dec. 8, 2017) (Massachusetts) (non-product liability).  Motion to dismiss denied, but only as to specific jurisdiction.  Corporate registration alone is insufficient for personal jurisdiction.