SCOTUS symposium: Developments in Personal Jurisdiction

Thanks to Howard for inviting me to participate in the SCOTUS symposium! I wanted to follow up on Howard's post about the Court's decision today in BNSF with a few additional thoughts on  the case and where the Court might be going with its personal jurisdiction doctrine:

(1)  I think Justice Sotomayor is right when she writes in her dissent that effect of BNSF and the Court's earlier decision in Daimler effectively means that general jurisdiction is available only where the defendant is domiciled (state of incorporation and/or principal place of business). It earlier seemed possible that "at home" jurisdiction could be broader than domicile. But outside of the most exceptional of circumstances, "at home" jurisdiction does appear to be limited to domicile only.

(2) Howard also points out that a forthcoming decision in Bristol-Myers Squibb will be more telling about the future of jurisdiction, because the Court will finally have to determine just how "related" the defendant's in-forum contacts have to be to the events giving rise to the suit.  Rocky Rhodes and I have written about that issue here and  most recently here. It seems clear to me that the relatedness question is a much more difficult issue for the Court to decide--though Bristol-Myers was argued on the same day, it was not decided concurrently with BNSF.

(3) When the Court does decide Bristol-Myers, I suspect that the decision will be much more split. BNSF followed Daimler very closely, and Justice Ginsberg's majority opinion was joined by eight other justices--only Justice Sotomayor wrote separately, concurring in part and dissenting in part, concerned that the Court's opinion "grants a jurisdictional windfall to large multistate or multinational corporations" and that "individual plaintiffs, harmed by the actions of a farflung foreign corporation . . . will bear the brunt" of the decision. As Rocky and I have written, however, that concern is lessened if the Court allows a broader conception of "relatedness."  A broader version of specific jurisdiction can make up for a narrower version of general jurisdiction, returning the parties to roughly the same equilibrium. 

(4)  It's more difficult to read the tea leaves about where the Court will come out on the relatedness question. Both BNSF and Bristol-Myers were argued at the April sitting that included Justice Gorsuch, and he joined the majority in BNSF. His earlier writing on personal jurisdiction suggests that he might be open to a broader version of specific jurisdiction. In a trademark case involving fabric sold on eBay, Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008), then-Judge Gorsuch affirmed jurisdiction. In that case, the plaintiffs were fabric sellers in Colorado who sold textiles over eBay. The defendant, who believed its trademark rights were violated by the plaintiffs' sales, had sent a cease-and-desist letter to eBay in California. Then-Judge Gorsuch held that the defendant's letter could count as a contact with Colorado, because although the letter

"formally traveled only to California, it can be fairly characterized as an intended means to the further intended end of cancelling plaintiffs' auction in Colorado. In this way, it is something like a bank shot in basketball. A player who shoots the ball off of the backboard intends to hit the backboard, but he does so in the service of his further intention of putting the ball into the basket. Here, defendants intended to send the NOCI to eBay in California, but they did so with the ultimate purpose of cancelling plaintiffs' auction in Colorado. Their “express aim” thus can be said to have reached into Colorado in much the same way that a basketball player's express aim in shooting off of the backboard is not simply to hit the backboard, but to make a basket."

Id. at 1075.  

(5) Although Bristol-Myers primarily raises the question of relatedness of contacts, that question is frequently tied to the question of whether "effects" in the forum state can count as a contact. Judge Gorsuch's opinion in Dudnikov relied on the effects test set out in Calder v. Jones, 465 U.S. 783 (1984). The Supreme Court recently attempted to distinguish Calder in its opinion in Walden v. Fiore, which held that defendant accused of wrongfully seizing assets in Georgia could not constitutionally be subject to jurisdiction in the plaintiff's home forum of Nevada, in spite of the fact that the deprivation of funds was felt in her home forum. However, I have argued elsewhere that Walden may have operated as a "stealth overruling" of Calder. That issue is unlikely to be decided by Bristol-Myers Squibb, but it is raised in a pending cert petition, TV Azteca v. Ruiz, which I will blog more about later.