Having already issued our posts on the best and worst cases of 2017, we will resist the temptation to comment on the year as a whole, particularly on the powder keg that is politics. We will note, however, two non-legal phenomena that we do not like. First, our collective attention span has gotten shorter, with the “news,” scandal, or development of the minute being partially digested before it is forgotten. When faced with a longer bit of print, it seems we do not get much past the headline or opening sentence—for those of us who read—before we start itching for something more pithy and less mentally taxing. That headlines and opening sentences might mislead us is increasingly less of a concern than it should be. Second, public discourse pretty much stinks, even if you ignore the constant interruptions of television pundits or the maniacal rants of radio monologists. The (anonymous) comments on seemingly benign stories on sports or science often devolve into personal attacks between the commenters and grammatically challenged pronouncements of intellectual or moral superiority. Both of these phenomena make us wish for the days when people thought more and argued less, or at least with less venom. We recall when the first comment on a news item would declare “First!” instead of epithets for the author and/or subject.
Today’s post is best viewed with some historical perspective, not just as short and straightforward decision of a state court, we tapped just yesterday as #9 on the best list. State ex rel. Bayer Corp. v. Moriarty, ___ S.W.3d ___, 2017 Mo. LEXIS 582 (Mo. Dec. 19, 2017), rules on the appeal of a trial court’s denial of a motion to dismiss the claims of non-resident plaintiffs on lack of personal jurisdiction. The case was brought in Missouri state court against the non-Missouri manufacturer of a contraceptive device, with 85 of 92 plaintiffs not being from Missouri either. Given that our readers do pay attention and can remember thing they have read before, we will not elaborate on how typical of litigation tourism this case looked. The timing should also ring some bells. The motion to dismiss was denied in December 2016—well after Bauman and many other strong general and specific personal jurisdiction decisions—and the Missouri Supreme Court allowed an interlocutory appeal in July 2017—after the Supreme Court decision in BNSF but before the Supreme Court decision in BMS (#1 on the best list) and some good Missouri decisions on personal jurisdiction. The interlocutory appeal also means that the defendant did not have to wait for an adverse trial result involving a non-Missouri resident—perhaps after more burdensome discovery than might have been permitted elsewhere—to have another court consider how 92% of the plaintiffs did not belong in Missouri.
The first argument that the non-resident plaintiffs raised on appeal was that the defendant’s on-going business in Missouri was sufficient to bestow general jurisdiction under pre-Bauman standards. Even if this were a good argument at the time of the trial court decision, BNSF made clear that “in-state business, [as] clarified in Daimler and Goodyear, does not suffice to permit the assertion of general jurisdiction over claims like [the nonresident plaintiffs’] that are unrelated to any activity occurring in [the forum state].” 2017 Mo. LEXIS 582, *9. Accordingly, without any need for debate, allegations that the defendant did substantial business in Missouri were not enough to bestow general jurisdiction. Plaintiff’s next argument—which had won below—also turned on a subsequent decision. In February 2017, the Missouri Supreme Court held in State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41, 52-53 (Mo. 2017), “registering to do business in Missouri and appointing registered agents here” does not amount to consent by a company to “personal jurisdiction in this state even over unrelated claims.” 2017 Mo. LEXIS 582, *11. (We covered the Norfolk decision in our post surveying jurisdiction by consent, which is here in case you did not memorize it.) Again, the recent precedent determined the result—no general personal jurisdiction by consent.
After BMS, BNSF, and Norfolk, specific jurisdiction did not require much argument. Plaintiffs’ argument below that they could piggyback on the jurisdiction over the in-state plaintiffs’ claims was rejected. In particular, BMS required “a connection between the forum and the specific claims at issue,” not claims some other plaintiffs might assert. Id. at *14. “Due process requires there be an affiliation between the forum and the underlying controversy. In the original petition, nonresident Plaintiffs failed to plead facts showing their claims arose out of or relate to Missouri activities of Bayer or their injuries occurred here.” Id. This would be the end of things as to the non-Missouri plaintiffs—they basically conceded such on appeal—except that the procedural posture required that the trial court gets to decide if plaintiffs can plead personal jurisdiction in an amended complaint or pursue jurisdictional discovery. Rather than reveal our personal preferences or offer characterizations of the practices pursued in cases like this, we end this last post of 2017 with the following weighty comment: “Last!”