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.