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Saturday, March 27, 2021

Court finds personal jurisdiction in Ford

SCOTUS decided Ford on Thursday, with all Justices agreeing that jurisdiction was proper. Kagan wrote for five (Chief, Breyer, Sotomayor, Kavanaugh); Alito concurred in the judgment; Gorsuch, joined by Thomas, concurred in the judgment. My SCOTUSBlog analysis is here.Kagan's opinion makes for a good teaching case, with a nice overview and summary of the doctrine (I am going back and forth about whether to use this instead of WW--I have a week to decide). On the relatedness question, Kagan concludes that a claim can "arise out of" the defendant's minimum contacts or it can "relate to" the defendant's minimum contacts; the former suggests causation, while the latter can looks for "an affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence that takes place in the forum State and is therefore subject to the State’s regulation." Relate to contemplates relationships lacking that causal showing. This is where Alito jumped off. Arise out of and relate to mean the same thing and both require some causation, which was present here. Gorusch and Thomas question the entire International Shoe framework, without identifying what might replace it.
The case leaves many unanswered questions.

What is the status of the reasonableness factors that are supposed to be the third step in the analysis? The Court has not mentioned or relied on them in any recent case. But they should control the result in the local-company hypos in FN 4 of Kagan's opinion (about a retiree wood-carver in Maine) and in Breyer's Nicastro concurrence (about Kenyan coffee producers); the defendant had contacts and the contacts gav rise, but it would be unreasonable to drag these small defendants to distant forums. Kagan alludes to considerations such as fairness  to the defendant and notice to the defendant and the competing interests of the forum state and other states in adjudicating, but appears to bury them in the first two prongs, rather than leaving them as a third step.

What else would satisfy relate to but not arise under? Some courts or judges have argued that relate to allows a longer causal chain, while arise under looks for  a transactional connection. For example, in Clemens v. McNamee (Roger Clemens' defamation suit against the former trainer who narced him out to the Mitchell Commission), the dissent argued that McNamee had contacts with Texas through his training activities in Texas (he traveled there 30+ times) and that those contacts "related to" Clemens' defamation claim because the Texas-based training put McNamee in a position to know about Clemens' PED use. Brennan made a similar move in his Helicol dissent--all the contracts and preliminaries for the relationship with Helicol were negotiated and entered into Texas, contacts that made the deal, and thus the accident, possible. Would the same majority endorse those views?

There has been some interesting discussion on the Civ Pro Profs List of what must be "related" for the second prong. Is it a relationship between the defendant's contacts and the claim and the forum? Or between the plaintiff's claim and the forum? Or some combination of the two.

Posted by Howard Wasserman on March 27, 2021 at 03:42 PM in Civil Procedure, Howard Wasserman | Permalink

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