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.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions