United States: Hotel California Stays Open: Another Look At Specific Jurisdiction In BMS

Last Updated: September 19 2016
Article by Eric Alexander

Recently, we offered a detailed breaking news post about how the California Supreme Court had messed up its jurisdictional analysis in Bristol-Myers Squibb Co. v. Superior Court, — P.3d — (Ca. 2016), even worse than the California Court of Appeal had two years earlier. We have taken a few whacks at this BMS beast already—with taut arguments and acerbic wit, we think—but it still lives. Our thrusts in prior posts have gone towards the Bauman case, the court's recognition that Bauman's general jurisdiction standards were not satisfied, and then its creation of a specific jurisdiction standard that "becomes indistinguishable from general jurisdiction." Based on plaintiffs' counsel's unilateral act of lumping together nonresident plaintiffs with some resident plaintiffs, all of whom allegedly have some commonalities (e.g., took the same drug), personal jurisdiction can be established over a nonresident defendant whose relationship with the nonresident plaintiff has nothing to do with plaintiff's preferred forum. That sounds an awful lot like general jurisdiction, notwithstanding Bauman and the first half of the BMS decision.

There is a recent Supreme Court authority on specific jurisdiction, Walden v. Fiore, 571 U.S. —, 134 S. Ct. 115 (2014), and we have talked about it before. The BMS court relegated Walden to a single see also cite and largely looked to state court authority in its specific jurisdiction analysis. We thought that was strange, so we decided to drag Walden out and see what guidance the Supreme Court's latest pronouncement on specific jurisdiction might have had for the BMS court if it looked.

Walden, as you may recall, involved a Nevada federal court Bivens action brought against Georgia police office deputized to work for DEA over a seizure of cash at a Georgia airport from travelers heading to Nevada, where they resided (along with holding some California status) and wanted to use the seized cash. The defendant also swore out an affidavit in Georgia in support of a forfeiture application, but plaintiffs got their cash back a few months later anyway. The Ninth Circuit pointed to the affidavit as an intentional act by the defendant committed "with knowledge that it would affect persons with a 'significant connection' to Nevada" and would cause "foreseeable harm" in Nevada." This was enough for specific jurisdiction in Nevada per the Ninth Circuit. The Supreme Court reversed.

Rather than walk through the BMS specific jurisdiction analysis again, we are going to highlight the Walden analysis (omitting cites) to see if it is consistent with the idea that a purported common course of conduct by the nonresident defendant can bestow specific jurisdiction over nonresident plaintiffs when some resident plaintiffs are also in the mix.

  • Walden: "For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State."
    • As to BMS: "Suit-related conduct" sounds like something that must be related to the particular plaintiff's allegation about her case, not somebody else's case. The BMS rejoinder is that common conduct in terms of nationwide marketing is "suit-related conduct" that can connect the case to the forum even if the plaintiff has no connection.
  • Walden: "First, the relationship must arise out of contacts that the 'defendant himself' creates with the forum State. Due process limits on the State's adjudicative authority principally protect the liberty of the nonresident defendant—not the convenience of plaintiffs or third parties. We have consistently rejected attempts to satisfy the defendant-focused 'minimum contacts' inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State."
    • As to BMS: So much for that rejoinder. The convenience of joining together a bunch of plaintiffs from different states in a single case in a state of their lawyer's choosing should not alter these principles.
  • Walden: "Second, our 'minimum contacts' analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there."
    • As to BMS: The defendant's contacts with the resident plaintiffs is critical to the BMS court's decision to find specific jurisdiction over nonresident plaintiffs' claims. While there is a look at contacts with the forum state, these are meaningless if not for the contacts with other plaintiffs.
  • Walden: "But a defendant's relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction. Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the 'random, fortuitous or attenuated' contacts he makes by interacting with other persons affiliated with the State."
    • As to BMS: That does not sound like an endorsement of using specific jurisdiction over a resident plaintiff's claims as a hook to extend specific jurisdiction over the claims of many more nonresident plaintiffs' claims.
  • Walden: The analysis of the Calder v. Jones cases, where there was specific jurisdiction for a California resident's libel claims against a Florida magazine, focused on the California distribution of the article at issue, not just other articles or issues.
    • As to BMS: The suit-related conduct of the Calder defendant was that distribution in California of the libelous article allegedly produced harm to the plaintiff in California. That the magazine allegedly had a practice of writing libelous articles and distributing them around the county was irrelevant to the jurisdictional analysis. Similarly, allegedly producing harm to resident plaintiffs should add nothing to whether the alleged harm to the nonresident plaintiff resulted from the defendant's actions in the forum.
  • Walden: "In short, when viewed through the proper lens—whether the defendant's actions connect him to the forum—petitioner formed no jurisdictionally relevant contacts with Nevada. The Court of Appeals reached the contrary conclusion by shifting the analytical focus from petitioner's contacts with the forum to his contacts with respondents."
    • As to BMS: As above, it looks to us like the BMS court used the wrong lens.
  • Walden: "Petitioner's actions in Georgia did not create sufficient contacts with Nevada simply because he allegedly directed his conduct at plaintiffs whom he knew had Nevada connections. Such reasoning improperly attributes a plaintiff's forum connections to the defendant and makes those connections 'decisive' in the jurisdictional analysis. It also obscures the reality that none of petitioner's challenged conduct had anything to do with Nevada itself."
    • As to BMS: Attributing another plaintiff's contacts with the forum to defendant when it comes to a nonresident plaintiff should be even more improper.
  • Walden: "Unlike the broad publication of the forum-focused story in Calder, the effects of petitioner's conduct on respondents are not connected to the forum State in a way that makes those effects a proper basis for jurisdiction."
    • As to BMS: The alleged effects of the BMS defendant's conduct on the nonresident plaintiffs were not connected to the forum state at all.
  • Walden: "In this case, the application of [personal jurisdiction] principles is clear: Petitioner's relevant conduct occurred entirely in Georgia, and the mere fact that his conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdiction."
    • As to BMS: The BMS defendant's conduct with regard to the nonresident plaintiffs occurred in states other than California and the mere fact that its conduct allegedly affected other plaintiffs in California should not suffice to authorize jurisdiction over the nonresident plaintiffs.

To us, the lack of personal jurisdiction over the nonresident plaintiffs' claims in BMS was pretty clear. We think Walden, although involving very different facts—just like the facts in the Vons case that BMS purported to follow were also very different—undercuts the result even further. General jurisdiction and specific jurisdiction are supposed to involve different analyses. Those analyses are supposed to be conducted as to each plaintiff, claim, and defendant. That is not what happened in BMS, though. We will look with interest at what happens with the forthcoming cert petition.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.