Supreme Court opinions on civil procedure really only garner attention and excitement from a select group of lawyers and academics, but the opinion in Ford Motor Co. v. Montana Eighth Judicial District could signal the beginning of a shift in specific jurisdiction that will have far reaching consequences. In this case, Ford sought to inject a proximate cause consideration into the minimum contacts test that determines whether a court has specific jurisdiction over a claim. In an 8-0 decision, Justice Kagan, writing for the Court, soundly rejected Ford's approach. However, in doing so, Justice Kagan and the concurring opinions from Justices Alito and Gorsuch began to grapple with what specific jurisdiction should look like in the 21st century.
The traditional test for specific jurisdiction stems from the seminal case, International Shoe Co. v. Washington, 326 U.S. 310 (1945), and the Court has steadily built on this foundation over the past 76 years. To determine whether specific jurisdiction comports with due process, a court must determine whether the three-part minimum contacts test has been satisfied. First, the court must determine whether the defendant "purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws."[1] Second, does the dispute "aris[e] out of or relat[e] to the defendant’s contacts with the forum."[2] Third, jurisdiction may still be defeated if there are compelling reasons that the presence of some other consideration would render jurisdiction unreasonable due to concerns of "fair play and substantial justice."[3]
The two plaintiffs in Ford, one in Montana and one in Minnesota, purchased used Ford vehicles that originally had been sold in Washington and North Dakota, respectively.[4] Over the years the vehicles were resold and ended up in Montana and Minnesota where alleged design flaws injured the plaintiffs. Ford tried to defeat jurisdiction in Montana and Minnesota by arguing that the second prong of the minimum contacts test requires the defendant's conduct in the forum give rise to the plaintiffs claim.[5] Ford argued that the mere fact a plaintiff was injured in a Ford vehicle that plaintiff brought into a specific jurisdiction does not allow Ford to be haled into court in that jurisdiction because its actions did not bring the vehicle there.[6] Moreover, Ford argued that a "causal test" would give Ford fair warning as to what activities would subject it to jurisdiction in particular States, and Ford can structure its business activities accordingly.[7]
Justice Kagan's opinion builds squarely on International Shoe and its progeny to reach the conclusion that "Ford's causation-only approach finds no support in this Court's requirement of a connection between plaintiff's suit and the defendant's activities."[8] The opinion then takes the step of drawing a distinction in the "arise out of or relate to the defendant’s contacts with the forum" language.[9] The opinion holds that the first half of the formulation contemplates causation while the "or" denotes that some relationships will support jurisdiction without a causal showing.[10] Ultimately, the Court concluded the state courts had jurisdiction because Ford's efforts to advertise, sell, and service all of their vehicles in both Montana and Minnesota supported a strong connection among "the defendant, the forum, and the litigation."[11]
Justice Kagan acknowledges that the opinion does not "consider internet transactions, which may raise doctrinal questions of their own."[12] Whether the current jurisdictional analysis is agreeable to the complexities that the internet invites is clearly on the mind of Justice Alito; his concurrence questions whether International Shoe is well suited to the business world of the twenty-first century.[13] Justice Alito further expresses concern that the parsing of the "arise out of or relate to" language creates a new category of cases for specific jurisdiction where a defendant's contacts need simply relate to the complained of conduct in some nebulous way.[14] The concurrence from Justice Alito shows that he is more than willing to reconsider specific jurisdiction cases in the future and would vote in favor of replacing International Shoe if a better approach was offered.
Indeed, Justice Gorsuch[15] similarly criticizes Justice Kagan's opinion for breaking up the "arise out of or relate to" language and injecting unnecessary ambiguity into jurisdictional analysis.[16] Moreover, Justice Gorsuch invited litigants "to address the challenges posed by our changing economy in light of the Constitution’s text and the lessons of history."[17]
While the opinion and concurrences all agree that Ford had done more than enough to subject itself to jurisdiction in Montana and Minnesota, the justices are clearly divided over the future of specific jurisdiction and International Shoe. With this in mind, counsel should be aware of the shifting landscape of specific jurisdiction, and cognizant of potential arguments regarding party's contacts with the forum. One should read the opinion and concurrences as a ready acknowledgement that the internet will, sooner or later, create doctrinal questions that the Court will have to address. Whether that answer is a complete reworking of the traditional International Shoe standard or the adoption of an entirely new standard is too soon to tell.
For businesses, it is important to understand the risks new business ventures may pose in the way of exposure to litigation. If sales are expanding into new territories or you have slowly built-up business in a state other than where you are incorporated or headquartered, you should consider whether you are doing enough business to expose yourself to lawsuits in those other states. Given the vagaries in laws among the states, it is increasingly important for businesses to keep litigation exposure in other states' courts in mind while pursuing opportunities.
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[1] Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
[2] Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780 (2017) (internal citation omitted).
[3] Burger King Corp., 471 U.S. at 476-78.
[4] Ford Motor Co. v. Montana Eighth Judicial District, Slip Op. No. 19-368, pp. 2-3.
[5] Id. at p. 3.
[6] Brief for Petitioner, pp. 32-3.
[7] Id. at pp. 26-7.
[8] Ford, p. 8.
[9] Id.
[11] Id. at p. 12.
[12] Id. at fn. 4.
[13] Alito, J. concurring, p. 1.
[14] Id. at p. 3.
[15] Justice Thomas joined Justice Gorsuch's concurrence.
[16] Gorsuch, J. concurring, p. 4.
[17] Id. at p. 11.
