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THE NEXUS REQUIREMENT AFTER BRISTOL-MYERS :
DOES “ARISE OUT OF OR RELATE TO” REQUIRE
CAUSATION?
Levi M. Klinger-Christiansen*
I. INTRODUCTION
In 2011, the Supreme Court took on the issue of minimum contacts
personal jurisdiction for the first time since 1988. The two cases it heard,
J. McIntyre Machinery v. Nicastro and Goodyear Dunlop Tires Operations,
S.A. v. Brown , resulted in opinions limiting the scope of both specific and
general jurisdiction.^1 This trend of diminishing the Court’s minimum
contacts jurisprudence has continued throughout the decade, leading to the
Court’s 2017 opinion in Bristol-Myers Squibb Co. v. Superior Court of
California.^2 The Bristol-Myers opinion also marked a first. It served as the
first time the Court analyzed the “nexus requirement” of specific
jurisdiction since the Court recognized the difference between general and
specific jurisdiction in Helicopteros De Colombia v. Hall over thirty years
earlier.^3 Specifically, the question of when a plaintiff’s claim, “arise[s] out
of or relate[s] to the [defendant’s] activities in the forum state.”^4
Bristol-Myers presented an opportunity for the Supreme Court to
provide much needed clarification to the nexus requirement after the Court
left the meaning of the nexus requirement rather unclear in Helicopteros.
- (^) J.D. Candidate, 2020, Seton Hall University School of Law; B.A, 2017, The College of New Jersey. I would like to thank Professor Denis McLaughlin for his insightful and careful guidance through the process of writing this Comment. Additionally, thank you Mom, George, and Jackie for your unconditional love and support. (^1) J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011). (^2) Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). (^3) Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 414 (1984). To assert specific jurisdiction a court must first find that the defendant had “certain minimum contacts with [the forum].” Id. (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). Second, the court must also find the “cause of action [to] arise out of or relate to [the defendant’s] activities in the forum state.” Id. Some courts and commenters use the term “nexus requirement” to refer to the second requirement; this Comment will borrow that language. See, e.g. , Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 332 (D.C. 2000); Linda Sandstrom Simard, Meeting Expectations: Two Profiles for Specific Jurisdiction , 38 IND. L. REV. 343, 348 (2005). (^4) Helicopteros , 466 U.S. at 414.
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As a result, courts and commenters have provided various interpretations of
the nexus requirement’s meaning since Helicopteros. Ultimately, Bristol-
Myers did not clarify every aspect of the nexus requirement’s meaning,
leaving many competing interpretations untouched. On the other hand,
despite the Court’s insistence that it decided Bristol-Myers on “settled
principles of personal jurisdiction,” this Comment suggests that the opinion
narrowed the understanding of what the nexus requirement means.^5
This Comment argues that Bristol-Myers has largely narrowed the
nexus requirement to require at-least but-for causation between the
plaintiff’s claim and the defendant’s forum contacts in most situations;^6
however, not in every situation. Language from Bristol-Myers creates
space for a narrow circumstance in which a non-causal connection between
the plaintiff’s claim and the defendant’s forum contacts may remain viable.
This narrow circumstance falls directly in line with Professor Sandstrom
Simard’s concept of “hybrid jurisdiction.”^7 Furthermore, not only does this
approach remain potentially viable, but the Court should also embrace it in
the interest of fairness.^8
Because an in-depth understanding of the nexus requirement is
necessary to understand the implication of Bristol-Myers , Part II of this
(^5) Bristol-Myers , 137 S. Ct. at 1783. (^6) But-for causation “is satisfied when the plaintiff’s claim would not have arisen in the absence of the defendant’s contacts” with the forum state. 16 Moore’s Federal Practice , § 108.42(7)(b) (Mathew Bender 3d Ed.). Courts have different approaches on what kind of causation between the defendant’s contacts and the plaintiff’s injury the Due Process Clause requires. See infra Sec. III. A and B. (^7) Linda Sandstrom Simard, Hybrid Personal Jurisdiction: It’s Not General Jurisdiction, or Specific Jurisdiction, but is it Constitutional? , CASE W. RES. L. REV. 559 (1998). Professor Sandstrom Simard describes “hybrid jurisdiction” as a combination of the “requirements of general jurisdiction and specific jurisdiction without satisfying either type of jurisdiction completely,” though ultimately arguing that “hybrid jurisdiction may satisfy the underlying goals of specific jurisdiction and thus be constitutional.” Id. at 563. This Comment suggests that the Bristol-Myers opinion has further bolstered the argument for hybrid jurisdiction’s constitutionality. (^8) On January 17, 2020, the United States Supreme Court granted petitions for certiorari on two State Supreme Court cases coming out of Minnesota and Montana. See Bandemer v. Ford Motor Co., 931 N.W.2d 744 (Minn. 2019), cert. granted , 2020 WL 254152 (U.S. Jan. 17, 2020) (No. 19-369); Ford Motor Co., v. Mont. Eighth Jud. Dist. Ct., 443 P.3d 407 (Mont. 2019), cert. granted , 2020 WL 254155 (U.S. Jan. 17, 2020) (No. 19- 368). The resolution of these two cases, Ford Motor Company v. Montana Eighth Judicial District Court and Bandemer v. Ford Motor Co. , which the United States Supreme Court has consolidated into one case, will necessarily require answering the question posed by this Comment: does “arise out of or relate to” require causation? Significantly, both the Minnesota and Montana Supreme Courts, in their respective opinions, accepted the viability of a non-causal test for the nexus requirement, with both opinions generally tracking the function of hybrid jurisdiction. See Bandemer , 931 N.W.2d at 751–55; Ford , 443 P.3d at 414 – 17. Thus, the Supreme Court now has the opportunity to embrace hybrid jurisdiction as a valid test under the nexus requirement, which this Comment suggests would be a prudent decision. See infra Sec. V.B.
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B. The Nexus Requirement
Starting with International Shoe , the Supreme Court hinted at the
existence of two types of personal jurisdiction through minimum contacts.^15
The Court explained:
[T]o the extent that a [defendant] exercises the privilege of
conducting activities within a state, it enjoys the benefits and
protection of the laws of that state. The exercise of that privilege
may give rise to obligations; and, so far as those obligations arise
out of or are connected with the activities within the state, a
procedure which requires the [defendant] to respond to a suit
brought to enforce them can, in most instances, hardly be said to
be undue.^16
The Court also stated, however, that “there have been instances in which
the continuous corporate operations within a state were thought so
substantial and of such a nature as to justify suit against it on causes of
action arising from dealings entirely distinct from those activities.”^17
Hence, the Court suggested two situations in which a forum may be able to
assert personal jurisdiction by means of minimum contacts: one where the
claim is connected to the defendant’s activity in the forum and one where it
is not.^18 Professors Von Mehren and Trautman defined the former as
“specific jurisdiction” and the latter as “general jurisdiction.”^19
The Supreme Court officially adopted Professors Von Mehren and
Trautman’s framework in Helicopteros.^20 The case was a wrongful death
action resulting from a helicopter crash in Peru that killed four American
citizens.^21 The defendant helicopter company, Helicol, was a Colombian
corporation that provided helicopter transportation in South America for a
pipeline project by the decedents’ employer.^22 The defendant purchased
the helicopter involved in the crash in Texas.^23 The defendant and the
decedents’ employer also negotiated the helicopter transportation contract
in Texas that resulted in the fatal crash in Peru.^24 Furthermore, the
noting that when such contacts are coupled with the nexus requirement “the State is exercising ‘specific jurisdiction’ over the defendant.” (quoting Int’l Shoe , 326 U.S. at 319.)). (^15) See Int’l Shoe , 326 U.S. at 319. (^16) Id. (^17) Id. at 318_._ (^18) See id. (^19) Arthur Von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis , 79 HARV. L. REV. 1121, 1136 (1966). (^20) Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 414 nn.8–9 (1984). (^21) Id. at 410. (^22) Id. at 409. (^23) Id. at 426 (Brennan, J., dissenting). (^24) Id. at 410–11.
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defendant “sent prospective pilots to Fort Worth[, Texas] for training,” and
the pilot who crashed the helicopter in question received his training in
Texas.^25 The families of the American citizens sued the foreign helicopter
company in Texas state court.^26
The Court used this case as an opportunity to adopt Professors Von
Mehren and Trautman’s concepts of “specific” and “general” jurisdiction.^27
The Court stated that “when a State exercises personal jurisdiction over a
defendant in a suit arising out of or related to the defendant’s contacts with
the forum, the State is exercising ‘specific jurisdiction’ over the
defendant.”^28 Conversely, the Court then explained that “when a State
exercises personal jurisdiction over a defendant in a suit not arising out of
or related to the defendant’s contacts with the forum, the State has been
said to be exercising ‘general jurisdiction’ over the defendant.”^29
With the adoption of Professors Von Mehren and Trautman’s
framework, the nexus requirement officially entered the Court’s minimum
contacts jurisprudence and serves as the second requirement for specific
jurisdiction.^30 The Court, however, did not go any further in attempting to
clarify what the nexus requirement actually means; rather, “[b]ecause the
parties [did not] argue[] any relationship between the cause of action and
Helicol’s contacts with the State of Texas [the Court] assert[ed] no ‘view’
with respect to that issue.”^31 The Court only considered “whether
[Helicol’s contacts with Texas] constitut[ed] the kind of continuous and
systematic general business contact” necessary to assert general
jurisdiction, and ultimately held that Helicol’s contacts were not sufficient
to assert general jurisdiction.^32 Thus, the Court declined to answer:
(1) whether the terms ‘arising out of’ and ‘related to’ describe
different connections between a cause of action and a
defendant’s contacts with a forum, and (2) what sort of tie
between a cause of action and a defendant’s contacts with a
forum is necessary to a determination that either connection
(^25) Id. at 411; id. at 426 (Brennan, J., dissenting). Helicol had other contacts with Texas including the purchasing of “helicopters (approximately 80% of its fleet), spare parts, and accessories for more than $4 million from Bell Helicopter Company in Fort Worth.” Id. at
(^26) Helicopteros , 466 U.S. at 412. (^27) Id. at 414 nn.8–9. (^28) Id. at 414 n.8 (citing Von Mehren & Trautman, supra note 19 , at 1144–64). (^29) Id. at 414 n.9 (citing Von Mehren & Trautman, supra note 19 , at 1144–64). (^30) See id. at 414. (^31) Id. at 415 n.10. Justice Brennan contested this finding. Id. at 425 n.3 (Brennan, J., dissenting) (“Nor do I agree with the Court that the respondents have conceded that their claims are not related to Helicol’s activities within the State of Texas.”). (^32) Helicopteros , 466 U.S_._ at 416.
2020] COMMENT 1151
clarify or promulgate an operative test to define any parameters of how far
a court can go in finding that a defendant’s contacts with a forum “relate
to” the plaintiff’s injury. Therefore, while Justice Brennan’s dissent
provided some analysis of the nexus requirement and a way of separating
the requirement’s two key phrases, the dissent still left the nexus
requirement extremely broad and unclear. The Court did not analyze the
application of the nexus requirement again until Bristol-Myers.^40
III. VARYING INTERPRETATIONS OF THE NEXUS REQUIREMENT
The Supreme Court has never clarified what it means for a plaintiff’s
claim to “arise out of or relate to” the defendant’s contacts with the forum
State. As a result, lower courts and commenters have filled the void with
varying interpretations of the nexus requirement. This Comment will use
Justice Brennan’s separation of “arise out of” and “relate to” as a way of
categorizing these different interpretations. Under Justice Brennan’s lens,
most of these interpretations can be classified as an application of “relate
to,” as opposed to “arise out of.” Hence, most of these interpretations
allow a court to assert personal jurisdiction over a defendant even when an
element of a claim does not formally “arise out of” the defendant’s contacts
with the forum State as Justice Brennan’s articulation of “arise out of”
requires.^41 This expansion of “relate to” is largely in response to an issue
Professor Richman aptly described:
An issue that surfaces from time to time is whether jurisdiction is
proper in a case that falls between these two paradigms [general
and specific jurisdiction]: one where the defendant has
substantial contacts with the forum, but not so many as to justify
general jurisdiction, and where the plaintiff’s cause of action
does not arise out of the defendant’s forum activities, although it
is not totally unrelated to them.^42
Courts and commenters have tackled this issue by applying various
interpretations of what the nexus requirement can mean. This section
discusses the three various interpretations of the nexus requirement, which
include (A) the two causation approaches, (i) but-for causation and (ii)
(^40) To be sure, the Court did describe the nexus requirement in both Goodyear and Daimler AG v. Bauman. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923 – 24 (2011); Daimler AG v. Bauman, 571 U.S. 117, 127 (2014). Bristol-Myers, however, was the first time the Court’s holding required an application of the nexus requirement. See infra Sec. IV. (^41) See Helicopteros , 466 U.S. at 424. Note that courts do not necessarily rely on Justice Brennan’s framework, often referring to “arise out of or relate to” as one standard. This Comment simply uses Justice Brennan’s framework as a useful guide and classification system. (^42) William M. Richman, A Sliding Scale to Supplement the Distinction Between General and Specific Jurisdiction , 72 CALIF. L. REV. 1328, 1337 (1984).
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proximate causation, and (B) the similarity approach.^43 This section then
considers two scholarly contributions toward analyzing the nexus
requirement: (C) the sliding scale, and (D) hybrid jurisdiction.
A. The Causation Approaches
The Courts of Appeals for each of the federal circuits use some form
of causation as the basis of their nexus requirement analysis.^44 Courts and
commenters have generally narrowed the causal tests into two major
categories: but-for causation and proximate causation.^45 As noted above,
but-for causation is satisfied when the plaintiff’s claim would not have
arisen but-for the defendant’s contacts with the forum.^46 Proximate
causation, on the other hand, requires a closer connection between the
plaintiff’s injuries and the defendant’s contacts with the forum; in many
ways it more closely resembles Justice Brennan’s formulation of “arise out
of.”
1. But-for causation
But-for causation uses a relaxed causal test.^47 As the name suggests,
“this standard is satisfied when the plaintiff’s claim would not have arisen
in the absence of the defendant’s contacts.”^48 Hence, but-for causation
resembles the analysis Justice Brennan performed in his Helicopteros
dissent.^49 The Ninth Circuit is the primary adherent to this test.^50
The Ninth’s Circuit’s analysis in Shute v. Carnival Cruise Lines
provides a classic example of but-for causation.^51 The case involved an
injury the plaintiff sustained while on a cruise.^52 The plaintiff purchased a
ticket for the cruise through a sales agent in the plaintiff’s home state of
Washington; while on the cruise in international waters off the coast of
(^43) Bender, supra note 6 (“Three general approaches have emerged.”). These approaches are but-for causation, proximate causation, and the “substantial connection” or the “discernable relationship standard.” Id. Under the third approach, “causation is of no special importance.” Id. I have labeled the third approach the “similarity approach.” (^44) See id. (^45) Id. (^46) Id. (^47) O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 319 (3d Cir. 2007) (“A... more relaxed test requires only ‘but-for’ causation.”). (^48) Id. (citing Shute v. Carnival Cruise Lines, 897 F.2d 377, 385–86 (9th Cir. 1990)). (^49) See Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 425–26 (1984) (Brennan, J., dissenting). (^50) Shute v. Carnival Cruise Lines, 897 F.2d 377, 385 (9th Cir. 1990) rev’d on other grounds , 499 U.S. 585 (1991); Bender, supra note 6. (^51) See Shute, 897 F.2d at 379. (^52) Id.
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formally arise out the defendant’s forum contacts.^63
2. Proximate Causation
In United Electric, Radio & Machine Workers v. 163 Pleasant St.
Corp. , the First Circuit articulated a more stringent interpretation of the
nexus requirement under the label of proximate causation.^64 The court
noted that “we steadfastly reject the exercise of personal jurisdiction
whenever the connection between the cause of action and the defendant’s
forum-state contacts seems attenuated and indirect.”^65 Rather, the First
Circuit requires the defendant’s forum contacts to “form an ‘important, or
[at least] material, element of proof’ in the plaintiff’s case.”^66 Hence, the
court has “suggested an analogy between the [nexus] requirement and the
binary concept of causation in tort law under which both elements—[but-
for causation] and legal cause (i.e., the defendant’s in-state conduct gave
birth to the cause of action)—must be satisfied to find causation sufficient
to support specific jurisdiction.”^67
The federal district court of Massachusetts’s opinion in Rodriguez v.
Samsung Electronics Co. , provides a useful modern application of the
proximate causation test articulated in United Electric.^68 This case
involved an employee of Axcelis Technologies, Inc. (“Axcelis-US”) who
sued Samsung after he sustained permanent injuries when he traveled to
Korea to install an ion implanter on Samsung premises.^69 During
discovery, Samsung indicated that, a separate company, Axcelis-Korea,
supervised and directed the installation.^70 Axcelis-Korea is a wholly-
owned subsidiary of Axcelis-US with its principal place of business in
Korea, providing sales and support services in both Korea and China.^71
Plaintiff then amended his complaint to include Axcelis-Korea; the
subsidiary filed a motion to dismiss for lack of personal jurisdiction.^72
The district court interestingly began its analysis with the nexus
requirement rather than the minimum contacts requirement.^73 Applying the
(^63) See Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 425–27 (1984). (^64) United Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992). (^65) Id. (^66) Id. (alteration in original) (quoting Marino v. Hyatt Corp., 793 F.2d 427, 430 (1st Cir. 1986)). (^67) Id. (^68) Rodriguez v. Samsung Elecs. Co., 827 F. Supp. 2d 47 (D. Mass. 2011). (^69) Id. at 50. (^70) Id. (^71) Id. (^72) Id. (^73) Id. at 51. After finding that specific jurisdiction did not exist under the nexus
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proximate causation test, the court first noted that “Axcelis-Korea’s in-state
contract with Axcelis-US was surely a but-for cause of Rodriguez’s
injury.”^74 Nonetheless, the court found that proximate causation did not
exist because the plaintiff’s “negligence claim sounds in tort, not contract,
and it arose directly out of allegedly tortious conduct which occurred
entirely in Korea.”^75 Hence, Axcelis-Korea’s “limited contacts with
Massachusetts [were] not... an important or material element of proof in
plaintiffs’ case.”^76
The proximate causation test is quite similar to Professor Brilmayer’s
“substantive relevance” test.^77 Professor Brilmayer’s test provides that,
“[a] contact is related to the controversy if it is the geographical
qualification of a fact relevant to the merits.”^78 This means that a specific
contact must be relevant to an element of the claim the plaintiff asserts.^79
For example, had the contract in Rodriguez included a clause imposing a
duty of reasonable care on Axcelis-Korea, the duty element of the
negligence claim may have been sufficiently linked to the contract in
Massachusetts and therefore allow for specific jurisdiction in the forum.
Thus, the proximate causation test and the substantive relevance test fall
under Justice Brenan’s definition of “arise out of,” as both require that a
formal element of the claim arises out of the defendant’s contacts with the
forum.^80
requirement, the court then performed a minimum contacts analysis and found that Axcelis- Korea did not even have sufficient minimum contacts with Massachusetts. Id. at 52. This is interesting because typically courts analyze the minimum contacts requirement first, likely because it is often an easier inquiry. (^74) Rodriguez , 827 F. Supp. 2d at 51 (“Had Axcelis-Korea not entered into a contract in Massachusetts with Axcelis-US to perform services in Korea, its managers would not have been present at Samsung’s facility to supervise the installation and Rodriguez would not have been injured as a result of their allegedly negligent acts or omissions.”). (^75) Id. (^76) Id. (^77) Lea Brilmayer, How Contacts Count: Due Process Limitations on State Court Jurisdiction , 77 SUP. CT. REV. 77, 82 (1980). See also O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 318–19 (3d. Cir. 2007) (“The most restrictive standard is the ‘proximate cause’ or ‘substantive relevance’ test.”) (citing id. ). Other commenters, however, disagree with this conflation. Charles W. Rhodes & Cassandra Burke Robertson, Toward a New Equilibrium in Personal Jurisdiction , 48 U.C. DAVIS. L. REV. 207, 237 (2014) (noting the “erroneous conflation of [substantive relevance] with the proximate cause approach adopted by some lower courts and commentators... .”). (^78) Brilmayer, supra note 77 , at 82. (^79) Id. (^80) O’Connor , 496 F.3d at 319 (“Justice Brennan, dissenting in Helicopteros , similarly described [proximate causation or substantive relevance] as a requirement that ‘the cause of action... formally “arise out of” the [defendant’s] contacts.’”) (quoting Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 426–27 (1984) (Brennan, J., dissenting)).
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involved a District of Columbia resident who slipped and injured herself at
a Shoppers store in Maryland.^90 Shoppers advertised its stores, located in
Virginia and Maryland, in the District of Columbia.^91 The plaintiff sued in
the Superior Court of the District of Columbia.^92 On appeal, the court of
appeals held that jurisdiction over Shoppers was valid because a
“discernible relationship” existed between Shoppers’s continuous conduct
in the District of Columbia and the conduct that caused the claim of
action.^93 The court found a “discernable relationship” noting: “it is
reasonably foreseeable that, as a result of advertising extensively and over
a substantial period of time in the District’s major circulation newspaper,
Shoppers could be sued in the District on a claim similar to that filed by
Ms. Moreno [plaintiff].”^94 Hence, the “discernable relationship” test, as
used in Shoppers , uses similarity as a basis of establishing the nexus
requirement. Under Justice Brennan’s framework, the similarity approach
must fall under Justice Brennan’s definition of “relate to” if it fits into the
framework at all, as it certainly does not fulfill the requirements of Justice
Brennan’s definition of “arise out of.”
C. The Sliding Scale
Professor Richman’s solution to the problem of the grey area between
general and specific jurisdiction is the “sliding scale” approach.^95 This test
can plausibly operate as a supplement to either the causal tests or the
similarity approach. The concept rests on the idea of viewing general and
specific jurisdiction as the opposite poles of a spectrum.^96 Across this
spectrum, Professor Richman considered two key variables: the “extent of
the defendant’s forum contacts” and the “proximity of the connection
between those contacts and the plaintiff’s claim.”^97 He noted that as the
forum activity and the activity which gave rise to the controversy.” Brilmayer, supra note 77 , at 83. It is also worth noting that specific jurisdiction likely could have been asserted in this case under a but-for causation theory, but the court explicitly rejected the causal tests in favor of the “discernable relationship” test, thus suggesting that this test is less stringent than even but-for causation. Shoppers , 746 A.2d at 335 (“Based upon our review of nexus tests [the court discussed but-for causation in this review]... we see no reason to deviate from... our past decisions which have interpreted the ‘arise from’ language of [the District of Columbia’s long arm statute] flexibly and synonymously with ‘relate to’ or having a ‘substantial connection with’... .”). (^90) Shoppers , 746 A.2d at 323. (^91) Id. (^92) Id. (^93) Id. at 336. (^94) Id. (emphasis added). (^95) Richman, supra note 42 , at 1345. (^96) Id. (“The concepts of general jurisdiction and specific jurisdiction are simply the two opposite ends of this sliding scale.”). (^97) Id.
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defendant’s forum contacts increase, the proximity to the plaintiff’s claim
may decrease, leading to the one polar extreme of general jurisdiction.^98
On the other hand, as the defendant’s forum contacts decrease, the test
requires a stronger connection between those contacts in order to assert
jurisdiction.^99 This connection could, of course, be a causal connection.
As the contacts become stronger, the more attenuated the causal connection
can be until reaching the point of a highly attenuated, but-for causation; as
the contacts decrease, perhaps something akin to proximate causation
would be more appropriate.^100 The test, can also conceivably lead to the
assertion of jurisdiction even when there is not a causal link between the
plaintiff’s claim and the defendant’s forum activities, or at least so
attenuated a causal link that a court would not even entertain the assertion
of personal jurisdiction under a but-for causation analysis.
Professor Richman provides a factual hypothetical that suggests the
use of the sliding scale approach when a potentially non-causal relationship
exists between the defendant’s forum contacts and the plaintiff’s claim.^101
He uses an example of a California resident who regularly uses a drug in
California.^102 The manufacturer advertises and sells the drug in
California.^103 The plaintiff then travels to New York, buys a dosage of the
drug in New York, and sustains injuries in New York from the drug.^104
The plaintiff sues in California.^105 In this example, the defendant’s actions
in California do not cause the plaintiff’s claim.^106 Under the sliding scale
approach, Professor Richman suggests that the continuous contacts with
California and the plaintiff’s relationship to California should be enough to
allow for specific jurisdiction over the drug company.^107 Further, because
the continuous contacts are identical to the actions by the company in New
York that caused the injury, there would be no unreasonableness or
(^98) Id. (^99) Id. (^100) See id. (“As the quantity and quality of the defendant’s forum contacts increase, a weaker connection between the plaintiff’s claim and those contacts is permissible; as the quantity and quality of the defendant’s forum contacts decrease, a stronger connection between the plaintiff’s claim and those contacts is required.”). (^101) Richman, supra note 42 , at 1344. (^102) Id. (^103) Id. (^104) Id. (^105) Id. (^106) Id. Of course, one can argue that the plaintiff would not have bought the drug in New York had the drug company in California not exposed him to the drug in California. This scenario, however, clearly differs from the other examples where but-for causation has been found, when the defendant enters the contract in the forum and then the plaintiff gets injured somewhere else. Here, the actual contract of sale for the drug occurs in New York. Id. (^107) Richman, supra note 42 , at 1344.
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the similarity approach, hybrid jurisdiction falls under Justice Brennan’s
category of “relate to” as opposed to “arise out of.” 115
Professor Sandstrom Simard pointed out that not many courts have
explicitly adopted hybrid jurisdiction, but some have functionally used it.^116
For example, in Vermeulen v. Renault , the Eleventh Circuit found specific
jurisdiction in a factual situation implicating hybrid jurisdiction.^117 In
Vermeulen, the plaintiff bought a used Renault vehicle in North Carolina.^118
She then moved to Georgia where she was involved in a car accident.^119
Renault regularly sold cars in Georgia, though the plaintiff did not buy her
specific vehicle there.^120 The plaintiff sued Renault in Georgia.^121 The
federal district court dismissed the case for lack of personal jurisdiction; the
supra note 77 , at 240. Their proposal, however, relies on Professor Brilmayer’s substantive relevance. Rhodes and Robertson, supra note 77 , at 237 (“Professor Brilmayer’s substantive relevance... is probably the best candidate.”). Rhodes and Robertson noted that substantive relevance asks whether “any of the factual occurrences that are conditions for the claim,” including “injury... arose from the defendant’s actions within or directed at the forum.” Id. Therefore, when the injury occurs in a state that the defendant has continuous and similar contacts with, that state can assert personal jurisdiction because an element of the claim, “injury,” arose out of the defendant’s contacts with the forum. Id. This ends in the same result as hybrid jurisdiction. Rhodes and Robertson’s proposal, however, used the word “arose,” which still seems to suggest that causation is needed, and thus creating tension within their proposal. This Comment argues that hybrid jurisdiction is a more sound way of reaching the same goal, considering causation is necessarily lacking in the situations where either approach would allow a court to assert specific jurisdiction. Additionally, Robertson and Rhodes’ proposal differs from hybrid jurisdiction in that they also suggest that their formulation of substantive relevance be expanded to also allow a court to assert jurisdiction in a forum the defendant has continuous contacts in and that the plaintiff resides in even though they were not injured in the forum. Rhodes and Robertson, supra note 77 , at 242. (“[I]f the defendant is conducting extensive forum activities similar to the episode in dispute, and the suit implicates another sovereign state interest (such as providing a convenient forum for state citizens or protecting against harms suffered in the state), the relevant state interests will typically outweigh the minimal litigation burdens on the defendant.”). (^115) Professor Sandstrom Simard indicated that hybrid jurisdiction fails the nexus requirement completely, stating that hybrid jurisdiction does not “require the plaintiff’s cause of action to arise out of (or even relate to) the defendant’s forum contacts.” Sandstrom Simard, supra note 7 , at 575. Instead, Professor Sandstrom Simard argued that hybrid jurisdiction is constitutional, based on a functionalist argument that hybrid jurisdiction still achieves the constitutional rationales of specific jurisdiction, without necessarily fulfilling the formal nexus requirement. Sandstrom Simard, supra note 7 , at 582 – 83. Under Justice Brennan’s framework, there is no indication that hybrid jurisdiction cannot fit into his sweeping definition of “relate-to.” Furthermore, as this comment later argues, hybrid jurisdiction likely fulfills the nexus requirement even under Bristol-Myers. Infra Sec. V. B. (^116) See Sandstrom Simard, supra note 7 , at 602, 608. (^117) Sandstrom Simard, supra note 7 , at 601–02. (^118) Vermeulen v. Renault, U.S.A., Inc., 975 F.2d 746, 748 (11th Cir. 1992). (^119) Id. (^120) Id. at 748–50. (^121) Id. at 747.
2020] COMMENT 1161
Eleventh Circuit reversed.^122
The Eleventh Circuit found that Renault’s contacts with Georgia were
“sufficiently related to [the plaintiff’s] cause of action to confer specific
jurisdiction” because its “activities... were inextricable links in the
advertising and distribution network by which the [plaintiff] obtained her
vehicle... .”^123 As Professor Sandstrom Simard argued, the Eleventh
Circuit attempted to show a causal connection in its “inextricable link”
argument, when in reality there was “no evidence of a causal link between
the defendant’s contacts with Georgia and the plaintiff’s cause of
action.”^124 Therefore, while the court attempted to shoehorn its analysis to
fit a causal test, its analysis more properly fit the requirements of hybrid
jurisdiction.
Another factual scenario where a court implicitly applied hybrid
jurisdiction, though labeled it as general jurisdiction, is in Lemke v. St.
Margaret Hospital.^125 In Lemke , Dr. U.H Patel, a surgeon, worked for St.
Margaret—a hospital based in Indiana.^126 The hospital regularly advertised
in Illinois.^127 Dr. Patel treated the plaintiff’s son, an Illinois resident, in the
Indiana hospital.^128 The record, however, did not reveal any evidence that
the plaintiff’s son came to St. Margaret because of the advertisements in
Illinois.^129 The plaintiff’s son returned to Illinois and then died because of
alleged malpractice by Dr. Patel.^130 The plaintiff sued the hospital and Dr.
Patel in Illinois state court, and the defendants removed to the United States
District Court for the Northern District of Illinois.^131 Here, the facts created
a textbook hybrid jurisdiction situation, as the defendant caused tortious
injury in Illinois “by an act or omission outside [a] state” in which the
defendant “regularly [conducted] or solicit[ed] business.”^132 The court,
however, asserted personal jurisdiction over the hospital by finding that the
hospital’s solicitations in Illinois constituted strong enough contacts to
implicate general jurisdiction.^133
(^122) Id. at 747–48. (^123) Id. at 760. (^124) Sandstrom Simard, supra note 7 , at 602. (^125) Lemke v. St. Margaret Hosp., 552 F. Supp. 833 (N.D. Ill. 1982). (^126) Id. at 835. (^127) Id. at 835–36. (^128) Id. at 835. (^129) Id. (^130) Id. (^131) Lemke , 552 F. Supp. at 835. (^132) Sandstrom Simard, supra note 7 , at 562 (quoting Unif. Interstate and Int’l Procedure Act § 1.03, 13 U.L.A. 361 (1962)). (^133) Lemke , 552 F. Supp. at 838–39.
2020] COMMENT 1163
defective tires that resulted in the deaths of two American children.^141 The
children’s parents sued Goodyear USA and three of Goodyear USA’s
European subsidiaries^142 in North Carolina.^143 Goodyear USA, an Ohio
corporation with plants in North Carolina, “regularly engaged in
commercial activity” in the forum and did not contest jurisdiction.^144
Conversely, the three foreign subsidiaries (“petitioners”), which
“manufacture tires primarily for sale in European and Asian Markets,” but
whose products had been “distributed within North Carolina by other
Goodyear USA affiliates,” contested personal jurisdiction.^145
The North Carolina Court of Appeals disagreed with the defendants
and invoked general jurisdiction over petitioners.^146 The Court of Appeals
held that the petitioners’ contacts with North Carolina reached the
threshold of general jurisdiction, “when petitioners placed their tires ‘in the
stream of interstate commerce without any limitation on the extent to which
those tires could be sold in North Carolina.’”^147 Moreover, the Court of
Appeals found that the “tires made by petitioners reached North Carolina as
a consequence of a ‘highly-organized distribution process’ involving other
Goodyear USA subsidiaries.”^148
After the North Carolina Supreme Court denied review, the United
States Supreme Court granted the defendants’ writ of certiorari and struck
down the Court of Appeals’ assertion of general jurisdiction.^149 The
Supreme Court explained that a “stream of commerce” theory can often be
invoked to prove contacts with a forum by a defendant acting outside the
forum whose products reached the forum and caused an injury inside the
forum; but such cases are specific jurisdiction cases.^150 Here, however, the
stream of commerce theory, which indicated that some of petitioner’s tires
reached the forum, “f[e]ll far short of the ‘the continuous and systematic
(^141) Id. at 920. (^142) The three Goodyear USA subsidiaries were organized in and operated out of Luxembourg, Turkey and France, respectively. Id. at 918. (^143) Id. (^144) Id. (^145) Id. at 918, 920–21 (“In contrast to... Goodyear USA... petitioners are not registered to do business in North Carolina. They have no place of business, employees, or bank accounts in North Carolina. They do not design, manufacture, or advertise their products in North Carolina.”). (^146) Goodyear , 564 U.S. at 921–22 (“Acknowledging that the claims neither ‘related to, nor... ar[o]se from, [petitioners’] contacts with North Carolina,’ the Court of Appeals confined its analysis to ‘general rather than specific jurisdiction... .’”) (alterations in original). (^147) Id. at 922. (^148) Id. (^149) Id. at 929. (^150) Id. at 926.
1164 SETON HALL LAW REVIEW [Vol. 50:
general business contacts’ necessary to empower North Carolina to
entertain suit against [petitioners] on claims unrelated” to the forum.^151
Goodyear involved forum contacts by the defendants that constituted
the kind of “continuous and systematic” general business contacts
necessary to implicate general jurisdiction under prior case law.^152 The
Court’s language describing general jurisdiction in the early portion of the
opinion, however, marked a potential narrowing of general jurisdiction.
The majority explained that “[a] court may assert general jurisdiction over
foreign (sister-state or foreign country) corporations to hear any and all
claims against them when their affiliations with the State are so ‘continuous
and systematic’ as to render them essentially at home in the forum
State .”^153 The Court cited to International Shoe for this proposition;
however, International Shoe never used the words “essentially at home” to
describe (what would become) general jurisdiction.^154 The Court then
elaborated that “[f]or an individual, the paradigm forum for the exercise of
general jurisdiction is the individual’s domicile; for a corporation, it is an
equivalent place, one in which the corporation is fairly regarded as at
home,” which can include the place of incorporation or the principal place
of business.^155 Hence, the case suggested a conflation between “domicile,”
a distinct method of asserting personal jurisdiction,^156 and general
jurisdiction, a subset of the minimum contacts method of asserting personal
jurisdiction.
This framework has now been further entrenched in the Court’s
jurisprudence, as the Court reaffirmed the requirement that a corporation be
“essentially at home” in Daimler AG v. Bauman.^157
(^151) Id. at 929. (^152) See Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 416 (1984). (^153) Goodyear, 564 U.S. at 919 (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 317 (1945)) (emphasis added). (^154) Int’l Shoe Co. v. Wash., 326 U.S. 310, 318 (1945) (“there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.”). While the Goodyear Court’s “essentially at home” language is a logical extension of this, it certainly marked a narrowing. (^155) Goodyear, 564 U.S at 924 (citing Lea Brilmayer et al., A General Look at General Jurisdiction , 66 TEX. L. REV. 723, 728 (1988)). (^156) Milliken v. Meyer, 311 U.S. 457, 462 (1940) (“Domicile in the state is alone sufficient to bring an absent defendant within the reach of the state’s jurisdiction for purposes of a personal judgment... .”). (^157) Daimler AG v. Bauman, 571 U.S. 117 (2014). In Daimler , the Court explained that “ Goodyear did not hold that a corporation may be subject to general jurisdiction only in a forum where it is incorporated or has its principal place of business; it simply typed those places paradigm all-purpose forums.” Id. at 137. The Court, however, did not provide an example of when a court could assert general jurisdiction absent those examples, as it restated that the test for general jurisdiction is “not whether a foreign corporation’s in-forum
