United States: Applying The "Arising Out Of Or Relating To" Personal Jurisdiction Test

Our careers have seen several major pro-defense trends in product liability litigation:

Mainstreaming summary judgment: This happened when we were still young lawyers. A trilogy of United States Supreme Court cases established that summary judgment wasn't an "extraordinary" or "disfavored" procedure, but rather part and parcel of modern litigation. The lead case in the trilogy was Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Preemption and product liability: We remember when our most powerful in product liability litigation was hardly available at all. That changed beginning with Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).

Limiting junk science: The Supreme Court required the curbing of abusive expert opinions, based mostly on who was paying the supposed "expert," and imposed a significant degree of scientific rigor on defect and causation opinions. The lead case was Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

Purging bogus class actions: Class actions for personal injury used to be a real threat in product liability litigation. They aren't anymore, not since the door was closed by Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).

Making pleadings matter: Not so long ago, complaints were formalities that told us practically nothing about what actually happened, not even what the plaintiff thought happened. That's no longer the case (at least in most courts), thanks to Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) (or "TwIqbal" – the term popularized by this blog).

With last term's decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) ("BMS"), we think it's now safe to add reducing litigation tourism to our megatrends list. As we discussed at the time, Justice Alito's opinion in BMS (joined by the entire Court, except Justice Sotomayor) meant that the crackdown on general personal jurisdiction epitomized by Daimler AG v. Bauman, 134 S. Ct. 746 (2014), could not be evaded by "loose and spurious" importation of extraneous forum contacts into the separate Due Process analysis for specific personal jurisdiction. As explained in more detail in that post and others, specific personal jurisdiction is just that – specific, or "case-linked" – to the plaintiff, to the defendant, and the forum. Indeed, the very idea of non-residents attempting to invoke specific jurisdiction is radical – it never happened before Bauman.

BMS reiterated that the purported jurisdictional contacts of other plaintiffs and other defendants don't count in specific personal jurisdiction. 137 S. Ct. at 1781 ("The mere fact that other plaintiffs were prescribed, obtained, and ingested [the product] in California − and allegedly sustained the same injuries as did the nonresidents − does not allow the State to assert specific jurisdiction over the nonresidents' claims."); 1783 ("[A] defendant's relationship with a ... third party, standing alone, is an insufficient basis for jurisdiction") (quoting Walden v. Fiore, 134 S.Ct. 1115, 1123 (2014)). But the Court, as is its practice, didn't just say no. Rather it held that the minimal record the plaintiffs had established in BMS (they had been content to rely on the penchant of California courts for adopting pro-plaintiff theories) didn't meet the longstanding test for specific personal jurisdiction – "arising from or relating to" the litigation in question.

In BMS the defendant "did not develop [the product] in California, did not create a marketing strategy for [it] in California, and did not manufacture, label, package, or work on the regulatory approval of the product in California." 137 S. Ct. at 1778. "[T]he nonresident [plaintiff]s were not prescribed [the product] in California, did not purchase [it] in California, did not ingest [it] in California, and were not injured by [it] in California. Id. at 1781. Nor was there any claim that the defendant was "derivatively liable" for anyone else's in-state conduct. Id. at 1783. "The bare fact that [the defendant] contracted with [an in-state] distributor is not enough to establish personal jurisdiction in the State." Id.

So that's where we are in the ongoing process of restoring sanity to personal jurisdiction that the Supreme Court has undertaken. Except for a few pockets of "jurisdiction by consent" holdouts (see our post here) general personal jurisdiction is off the board except where a corporate defendant is "at home" – where it is incorporated or has its principal place of business. The new battleground is whether, and to what extent, courts will allow non-residents to assert specific personal jurisdiction under the "arising from or relating to" test. That's what we're looking at today

Thus, we know from BMS that "the suit must arise out of or relate to the defendant's contacts with the forum." 137 S. Ct. at 1780 (citation and quotation marks omitted) (emphasis original). "[T]he primary [Due Process] concern is the burden on the defendant." Id. (citation and quotation marks omitted). The required "affiliation between the forum and the underlying controversy" means that "an activity or an occurrence [must] take[] place in the forum State." Id. (citation and quotation marks omitted). "[S]pecific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction." Id. (citation and quotation marks omitted). In determining these questions, "the primary concern is "the burden on the defendant. Id. (citation and quotation marks omitted).

Id. at 1780-81 (citations and quotation marks omitted)

In sum, existence of specific personal jurisdiction after BMS requires "a connection between the forum and the specific claims at issue." Id. at 1781. Thus, BMS recognized two types of possible mass tort aggregation: (1) plaintiffs from anywhere may bring "a consolidated action" in a state that has "general jurisdiction" under Bauman. (2) Plaintiffs who are "residents of a particular state" can "probably sue together in their home states" (assuming that was also where they were injured, and maybe other things in specific cases). Id. at 1783. Although it did not draw the bright line our side would have liked, BMS did not recognize any instance where a non-resident could assert specific personal jurisdiction.

Finally, BMS pointed out that personal jurisdictional rules might be different where a federal court is asked to adjudicate a federal claim. Id. at 1784 (citing Omni Capital International, Ltd. v. Rudolf Wolff & Co., 484 U.S. 9 (1987)). The Court's page citation to Omni Capital, 484 U.S. at 103 n.5, explains that caveat, since that Omni Capital footnote had preserved a possibility that Congress could permit analysis of nationwide contacts by enacting a statute allowing nationwide service of process. Id. That's not something applicable to state-law product liability actions.

From the discussion in BMS we take away, first, the holding that a "defendant's relationship with a third party, standing alone, is an insufficient basis" for jurisdiction. A defendant's contracting with a separate in-state entity, such as the distributor in BMS, is not a relevant specific personal jurisdiction contact. There would have to be some basis, like alter ego or conspiracy, to impose a separate entity's contacts on a defendant.

Second, BMS requires that the defendant's jurisdictional contacts for specific jurisdiction must relate to a plaintiff's "specific claims" – ruling out more general contacts that would be the same for every plaintiff in the litigation. Thus, that the defendant has a manufacturing plant in a state that made the drug in question doesn't matter if no manufacturing defect claim is alleged, nor should it matter unless the plaintiff can establish that the drug s/he ingested was actually made in that facility. Ditto with testing. An in-state activity related to overall FDA approval wouldn't be "specific" to any plaintiff, and thus should not be not a relevant contact under BMS. However, if a plaintiff were actually enrolled in a clinical trial (say plaintiff X, a Pennsylvania resident, crossed the river and participated in an New Jersey study), and was claiming injury from that participation, that contact would be "specific" to that plaintiff's claims and thus relevant to a BMS specific personal jurisdiction analysis.

Beyond the BMS discussion of the "arising out of"/"relating to" specific personal jurisdiction test, we're doing two things – first, we take another look at the aforementioned Walden case, because of the heavy reliance on Walden in BMS. Second, we ran a search of all previous Supreme Court decision that used the words "arising" and "relating" (in any verb form) in the same sentence, and also mentioned "personal jurisdiction" anywhere in the opinion. That search produced 13 prior Supreme Court cases, a manageable number.

Walden: We already examined the Walden v. Fiore, 134 S. Ct. 1115 (2014), specific personal jurisdiction decision quite closely back in 2016, following the California Supreme Court's now overturned ruling in BMS. First we note that Walden involved federal constitutional claims (a so-called "Bivens" action), brought in federal court, id. at 1120, so the BMS Fifth/Fourteenth Amendment caveat doesn't seem to matter in practice (and we won't mention it further). Plaintiff was a Nevada resident, asserting the specific jurisdiction of his home state, suing over a currency seizure by a Georgia police officer who acted in Georgia. Id. at 1119-20. As an in-state plaintiff, not only did he assert specific personal jurisdiction in the usual way, but a fortiori he had far more forum contacts than the litigation tourists who frequent drug/device mass torts. However, as emphasized by BMS, the "primary concern" is with the defendant's situation, so our focus in Walden is on what the Court had to say about the defendant's contacts/conduct.

Walden held, as to a defendant, "the relationship must arise out of contacts that the defendant himself creates with the forum State," and "the defendant's suit-related conduct must create a substantial connection with the forum." Id. at 1122 (citations and quotation marks omitted). Further, "minimum contacts analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there," id., which in Walden included the plaintiff himself. "[R]andom, fortuitous or attenuated contacts [a defendant] makes by interacting with other persons affiliated with the State" are insufficient. Id. at 1123. Neither the plaintiffs nor a third-party's "unilateral activity" count. Id. at 1222. Mere knowledge that the future plaintiff was affiliated with the forum state doesn't count:

Id. at 1125. Thus, "the mere fact that [defendant's] conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdiction." Id. at 1126.

In Walden, like BMS, "no part of [defendant's] course of conduct occurred in" the forum state. Id. at 1124. Plaintiff could not compensate for that lack of activity through reliance on "knowledge of [plaintiff's] strong forum connections. Id. at 1124-25. "The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaningful way." Id. at 1125. The Court also held that, where a plaintiff "would experience this same [injury] . . . wherever else they might have" been, specific personal jurisdiction on the basis of such a contact could not be sustained. Id. If "the effects of [defendant's] conduct" would be the same anywhere, that conduct was "not connected to the forum State in a way that makes those effects a proper basis for jurisdiction." Id.

Walden thus yields the following takeaways: (1) The defendant's contacts must create a "substantial connection." One of several dozen clinical trials shouldn't cut it. Nor should a trivial and irrelevant step in the manufacturing process, such as the presence of a packaging or processing facility where packaging/processing is not an issue in litigation. (2) As held in BMS, jurisdictional contacts must be a defendant's own, not those of some other in-state entity with which the defendant has some sort of relationship. (3) Walden's "same injury wherever else [a plaintiff] might have been" holding reinforces the "specific claims" discussion in BMS. A general contact, as to which any plaintiff from anywhere could claim the same sort of injury and causation, cannot be a specific jurisdiction forum contact. Purported contacts relating to, for example, the invention of a medical device, the testing of a prescription medical product, the preparation of FDA submissions – all of these are general contacts that any plaintiff anywhere could equally well assert. Those are not what specific jurisdiction is about under BMS and Walden.

Other specific personal jurisdiction cases: First, where did the "arising out of"/"relating to" specific personal jurisdiction test originate? We tracked that down. Ironically, the current formulation of this test was first articulated in Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984), a case that neither involved specific jurisdiction nor applied the test. See 466 U.S. at 415 ("[a]ll parties . . . concede[d] that [plaintiffs'] claims . . . did not "arise out of," and are not related to, [defendant's] activities within" the forum state"). That being said, the Court in Helicopteros Nacionales stated:

Id. at 414 (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)) (other citations and quotation marks omitted) (emphasis added). Shaffer, however, does not contain "arising out of"/"relating to" language – that phraseology actually comes from a law review article cited in a footnote in Helicopteros Nacionales. See 466 U.S. at 414 n.8 (citing von Mehren & Trautman, "Jurisdiction to Adjudicate: A Suggested Analysis," 79 Harv. L. Rev. 1121, 1144-64 (1966)). The von Mehren & Trautman article stated, "[i]n the case of specific jurisdiction, the assertion of power to adjudicate is limited to matters arising out of − or intimately related to − the affiliating circumstances on which the jurisdictional claim is based." 79 Harv. L. Rev. at 1144-45. So that is the origin of the relevant test applied in subsequent specific personal jurisdiction cases, up to and including BMS.

Helicopteros Nacionales contains a second interesting footnote, noting the existence (but did not deciding) of some specific personal jurisdiction issues:

Id. at 415 n.10. Aside from this mention in Helicopteros Nacionales, these questions have never been addressed by the Supreme Court. We will not address them either.

Other than BMS and Walden, the most recent specific personal jurisdiction case utilizing the "arising out of"/"relating to" specific personal jurisdiction test is J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011), a decision concerning so-called "stream of commerce" jurisdiction that did not produce a majority opinion. We previously discussed Nicastro here. "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193 (1977). Thus, we need to pay careful attention to the concurring opinion of Justices Breyer and Alito in Nicastro.

Nicastro was brought in New Jersey. Specific personal jurisdiction over an overseas defendant had been asserted on the basis of: (1) an out-of-state independent national distributor; (2) attendance at conventions elsewhere in the United States, and (3) the injury-causing product ending up in New Jersey. 564 U.S. at 878. Four justices (in an opinion by Justice Kennedy) held that none of these contacts involved an "act by which the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum State" that would allow personal jurisdiction. Id. at 880 (citation and quotation marks omitted). None of the facts supported the specific targeting of New Jersey, therefore no specific personal jurisdiction existed. Id. at 886.

A state's "strong interest in protecting its citizens from defective products" cannot overcome Due Process, since "the Constitution commands restraint before discarding liberty in the name of expediency." Id. at 887. A defendant:

Id. at 881 (citations and quotation marks omitted) (emphasis added). Applying federalism over foreseeability, these four justices rejected stream of commerce altogether. See Id. at 886 ("the stream-of-commerce metaphor cannot supersede either the mandate of the Due Process Clause or the limits on judicial authority").

"The principal inquiry in cases of this sort is whether the defendant's activities manifest an intention to submit to the power of a sovereign." Id. at 882. Thus, a "defendant's transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State." Id. Specific "personal jurisdiction requires a forum-by-forum, or sovereign-by-sovereign, analysis." Id. at 884. After all, where specific jurisdiction is unavailable, "the courts of [a defendant's] home State are available and can exercise general jurisdiction." Id.

The Nicastro concurrence did not reach as broadly. It held only that "a single sale of a product in a State does not constitute an adequate basis for asserting jurisdiction over an out-of-state defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place." Id. at 888-89 (citations omitted). The concurring justices refrained from adopting the plurality's "strict rules that limit jurisdiction where a defendant does not intend to submit to the power of a sovereign." Id. at 890.

[As an aside, with Justice Alito having since written the federalism-based BMS decision, the continued viability of any form of stream of commerce jurisdiction is now open to serious question − but that is not the focus of today's post.]

Nor could the Nicastro concurrence countenance specific jurisdiction based on foreseeability. Specific jurisdiction "rest[s] upon a particular notion of defendant-focused fairness." Id. at 891. They reject any rule that:

Id. (emphasis added).

Nicastro thus reinforces our takeaways from BMA and Walden with the concurrence's rejection of jurisdictional theories that would expand specific personal jurisdiction to allow product liability suits against corporate defendants to be brought in "every State" no matter how remote from where the defendant operates. "Fairness" concerns as to specific jurisdiction are "defendant-focused."

The specific personal jurisdiction test was also applied in Burnham v. Superior Court, 495 U.S. 604, 616 (1990). Burnham, like Walden, did not involve a corporate defendant. The issue was whether jurisdiction was still obtainable by personal service on a defendant physically in the jurisdiction, without regard for minimum contacts. Id. at 608. Burnham, thus decided an attempt to restrict, rather than expand, traditional jurisdictional principles. Moreover the decision is a mess. In Burnham, the Court was even more split than Nicastro, producing four opinions, mostly dealing with the whether the "time honored," id. at 622, tradition of individual personal service remained valid, in and of itself, or required an additional "minimum contacts" analysis.

Justice Scalia, writing for three justices (and sometimes four) in Burnham, predictably answered "no." "The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard." 495 U.S. at 619. Principles protecting "absent nonresident[]" defendants were not applicable. Id. at 620. These justices also rejected jurisdictional rules based on "fairness" as the guiding principle. Id. at 625-26. Justice White's partial concurrence in the opinion and concurrence in the result, also relied on tradition but not as rigidly. Id. at 629 ("I cannot agree that . . . all traditional rules of jurisdiction are, ipso facto, forever constitutional").

Justice Brennan, writing for three justices in Burnham, went the other way: "[E]very assertion of state-court jurisdiction, even one pursuant to a 'traditional' rule such as transient jurisdiction, must comport with contemporary notions of due process." Id. at 632. Justice Stevens agreed with everybody and nobody, found an "easy case," and offered practically no reasoning. Id. at 640. Only Justice Brennan undertook to apply the "arising out of"/"relating to" specific personal jurisdiction test:

Id. at 637 (citations and quotation marks omitted). Justice Brennan's concurrence, however, also advanced a proposition that was definitively rejected by BMS – "an out-of-state plaintiff may use state courts in all circumstances in which those courts would be available to state citizens." Id. at 638. As already discussed, BMS rejected this analogy, when it held that the non-resident plaintiffs could not assert specific jurisdiction to the same extent as resident plaintiffs. 137 S. Ct. at 1781.

The many peculiarities of Burnham – the number of opinions, most of the opinions' reliance on "tradition," the attempt to restrict (rather than expand) traditional jurisdiction, non-corporate parties – make it impossible to garner any significant takeaways from the decision. If Burnham stands for anything, it would be the inapplicability of Due Process tests involving "absent nonresident[]" defendants to cases involving individuals who were physically in the jurisdiction.

The "arising out of"/"relating to" specific personal jurisdiction test was also applied in Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).

Id. at 472 (citation and quotation marks omitted) (emphasis added). Michigan franchisees claimed they were not subject to suit in Florida (as provided by contract) because the litigation did not "arise" from Florida. Id. at 469. They had "never even visited there." Id. at 479. Burger King held that specific personal jurisdiction nonetheless existed, primarily because of the nature of the parties' contract. "[P]arties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other State for the consequences of their activities." Id. at 473. "[T]he Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed." Id. at 474.

Mere "foreseeability of causing injury in another State . . . is not a sufficient benchmark for exercising personal jurisdiction." Id. (citation and quotation marks omitted). While a contract, without more does not confer personal jurisdiction, id. at 748, a contract that "established a substantial and continuing relationship with" an out-of-state entity does. Id. at 487. Where a party "reached out" and entered into a contract that "voluntar[ily] accept[ed] the long-term and exacting regulation of his business from" out of state, then the relationship is not "random, fortuitous, or attenuated," so that a claim of breach does not "arise from" those out-of-state obligations. Id. at 479-80 (citations and quotation marks omitted).

The takeaway from Burger King is that defendants (including corporate defendants) that "reach out" and affirmatively "establish a substantial and continuing relationship" with someone in a jurisdiction are amenable to suit there, even if they have never had a physical presence there. If not, then they don't – or, at least, should not be subject to specific personal jurisdiction.

The rest of the cases turned up by our search were less relevant to the test for specific personal jurisdiction. As in Helicopteros Nacionales, the Court recited the specific personal jurisdiction test in Bauman, although that case turned on general, rather than specific, jurisdiction. Daimler AG v. Bauman, 134 S.Ct. 746 (2014). "Adjudicatory authority of this order, in which the suit 'aris[es] out of or relate[s] to the defendant's contacts with the forum,' is today called 'specific jurisdiction.'" Id. at 755 (quoting Helicopteros Nacionales). A similar statement – prescient, because the test itself was not formulated until decades later − is found in Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952), observing that because the "cause of action sued upon did not arise in [the forum] and does not relate to the corporation's activities there," the issue was general, not specific, jurisdiction. Id. at 439. Neither case contains any analysis if the specific jurisdiction test.

In Hanson v. Denckla, 357 U.S. 235 (1958), the terms appear in a dissent, and not as a test for jurisdiction. Id. at 258-59. The same is true (except for the dissent part) in the older (pre-International Shoe Co. v. Washington, 326 U.S. 310 (1945)) decision Milliken v. Meyer, 311 U.S. 457, 464 (1940). The remaining cases were not really personal jurisdiction cases at all. Several involve "arising out of"/"relating to" in arbitration agreements and dealt with arbitration-related issues. See CompuCredit Corp. v. Greenwood, 565 U.S. 95, 104 (2012); Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co., 529 U.S. 193, 195 (2000); Southland Corp. v. Keating, 465 U.S. 1, 4 (1984). Finally, the language also appears in a dissent in a sovereign immunity case. Saudi Arabia v. Nelson, 507 U.S. 349, 379 (1993).

Thus, based on review of every United States Supreme Court case ever expressly employing the "arising out of"/"relating to" test for specific personal jurisdiction we conclude, first, that to allow a non-resident plaintiff to maintain specific personal jurisdiction on any basis would be unprecedented. Every United States Supreme Court specific jurisdiction decision that we've read has involved a plaintiff who was a resident of the jurisdiction in which the suit was brought. Beyond that, the cases provide the following takeaways:

• For forum contacts to support specific personal jurisdiction, they must relate to a "specific" plaintiff. They cannot be such that "wherever else" plaintiffs might reside, they could all assert the same supposed contact.
• Specific jurisdiction contacts cannot support jurisdiction in multiple states.
• Contractual arrangements with in-state entities do not create specific jurisdiction. Unless a basis exists to create vicarious liability, the only relevant contacts are those of the defendant itself.
• Forum contacts related to the product (e.g., pertaining to FDA approval), but not specific to a particular plaintiff's claim, do not create specific jurisdiction.
• Forum contacts that are unrelated to the particular claims of a particular plaintiff (e.g. packaging in a design defect case) cannot support specific jurisdiction.
• Forum contacts must be "substantial" (or "substantial and continuing," depending on which decision one quotes), so the presence in the forum state of one of numerous similar activities conducted by the defendant nationwide (e.g., a sales representative, or a clinical trial) cannot create personal jurisdiction unless relevant to the plaintiff's particular circumstances.

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