Trial Magazine

The U.S. Supreme Court’s unanimous March 25 opinion in Ford Motor Co. v. Montana Eighth Judicial District Court—authored by Justice Elena Kagan—bucks a long-standing anti-plaintiff trend in the law of personal jurisdiction.¹ I argued the case to the justices via telephone last fall and am thrilled that our clients—victims of serious crashes in Minnesota and Montana involving defective Ford vehicles—will finally get access to justice.

More broadly, the Ford decision represents a rejection of hyper-formal limits on personal jurisdiction, a victory for common sense, and an opportunity going forward to establish jurisdiction and obtain justice for injured people. Ford is also notable for its surprising unanimity. Although Justices Neil Gorsuch and Clarence Thomas would have grounded the ruling in originalism and Justice Samuel Alito would have adopted a less-generous standard, everyone agreed that Ford’s objection to personal jurisdiction should not prevail.²

Ford represents a rejection of hyper-formal limits on personal jurisdiction and an opportunity going forward to establish jurisdiction and obtain justice for injured people.

The last time the Supreme Court found a corporation’s contacts sufficient for specific jurisdiction was in 1985.³ For decades until Ford, the justices consistently limited injured people’s ability to assert jurisdiction over out-of-state corporations. In the name of protecting corporate due process rights, the Court’s decisions narrowed both types of personal jurisdiction. General (or all-purpose) jurisdiction could be asserted only in states where a corporation is “generally at home.”⁴ And specific (or case-linked) jurisdiction was no longer a given even in states where the plaintiff experienced injury.⁵

Consider Robert Nicastro’s case. When a three-ton metal shearing machine severed four fingers on his right hand at his workplace in New Jersey, the Court held that Nicastro couldn’t sue the machine’s British manufacturer in New Jersey—even though the machine was sold to his employer through the company’s U.S. distributor.⁶ Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Kagan, vigorously dissented.⁷

But not all of the recent decisions have split the Court so evenly. In 2017’s Bristol-Myers Squibb Co. v. Superior Court of California, when the Court refused to allow nonresident plaintiffs to join a mass action that already included resident plaintiffs injured in the state by the defendant’s pharmaceuticals, the vote was 8-1.⁸ Only Justice Sotomayor dissented.

As a result, civil procedure professors and those who follow the Supreme Court closely had good reason to predict that the anti-plaintiff trend would continue when the Court granted Ford’s cert petitions last year. After all, the lower courts had both ruled in favor of the plaintiffs,⁹ and there was no clear split among the highest state courts or federal circuits.

In both cases, the plaintiffs were residents of the forum states and were injured in crashes that occurred in the forum states. But the twist—on which Ford’s argument hinged—was that these particular vehicles (a Ford Explorer and a Crown Victoria) weren’t designed, manufactured, or originally sold by Ford in the forum states. They ended up in Minnesota and Montana through a series of used-car sales.

Even though Ford sold the same product in the states, the defendant argued, the company didn’t do anything in the forum states that caused the plaintiffs’ injuries and hence the state courts could not exercise jurisdiction over it.¹⁰ The legal question presented by Ford’s petitions—whether to adopt a causal requirement for specific jurisdiction—was identical to the question presented by the petition in Bristol-Myers.¹¹

The Court’s decisions on personal jurisdiction from the past decade have been characterized as overly formalistic and at risk of imposing “a new privity requirement through the due process clause, reversing 100 years of settled law” stretching back to Benjamin Cardozo’s 1916 opinion in MacPherson v. Buick Motor Co.¹² MacPherson ushered in the modern rule that a person injured in a car crash can sue the manufacturer even when that person is not in privity with that company.¹³ Ford’s stance, if adopted, would have threatened that rule by making jurisdiction turn on the site of the first sale of the product to the original purchaser.

But at oral argument and in the majority and concurring opinions, the justices were unpersuaded by Ford’s formalism. Instead, they seemed more in sync with the plaintiffs’ key themes: ensuring that jurisdictional doctrine is easy to administer, that it accords with common sense, and that it is grounded in principles of fairness and federalism.

Justice Kagan’s majority opinion rejected Ford’s arbitrary regime by adopting the simple, straightforward rule that we advocated: “When a company like Ford serves a market for a product in a State, and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit.”¹⁴

The Court reasoned that in these cases, there was “a strong relationship among the defendant, the forum, and the litigation—the ‘essential foundation’ of specific jurisdiction”—because “Ford had systematically served a market in Montana and Minnesota for the very vehicles that the plaintiffs allege malfunctioned and injured them in those States.”¹⁵

While it has been just a few months since Ford was decided, the ruling already has been described as “a workhorse.”¹⁶ It is likely to be frequently cited and should prove dispositive in cases in which a corporation tries to force a plaintiff to trace a widget, a pill, or a component back to its site of original purchase. It also seems likely that courts will be more sympathetic to plaintiffs who sue where they live, a potentially significant shift from the seemingly exclusive focus on the defendant in prior cases.

At the same time, the Court leaves open many issues that will provide grist for future litigation, including questions about what counts as an injury in the forum; what counts as serving a forum market; and how the Court’s doctrine applies in contexts such as the internet, where geographic boundaries seem less relevant. If those battles reach the Court again, Ford gives us reason to hope that the justices will be more likely to keep the courthouse doors open.

Deepak Gupta is the founder of Gupta Wessler, a national plaintiff-side appellate boutique, and can be reached at deepak@guptawessler.com.

Notes

1. 141 S. Ct. 1017 (Mar. 25, 2021). AAJ filed an amicus brief in support of the plaintiff-respondents. Access this and other amicus briefs here.
2. Id. at 1032 (Alito, J., concurring); Id. at 1034 (Gorsuch and Thomas, JJ., concurring).
3. See Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).
4. See, e.g., Daimler AG v. Bauman, 571 U.S. 117 (2014); BNSF Railway Co. v. Tyrell, 137 S. Ct. 1549 (2017).
5. See, e.g., Walden v. Fiore, 571 U.S. 277 (2014); Bristol-Myers Squibb Co. v. Superior Ct. of Calif., 137 S. Ct. 1773 (2017).
6. J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011).
7. Id. at 893 (Ginsburg, Sotomayor, and Kagan, JJ., dissenting).
8. Bristol-Myers, 137 S. Ct. 1773.
9. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 443 P.3d 407 (Mont. 2019); Bandemer v. Ford Motor Co., 931 N.W.2d 744 (Minn. 2019).
10. See id.
11. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., No. 19-368 (U.S. petition for cert. filed Sept. 18, 2019); Ford Motor Co. v. Bandemer, No. 19-369 (U.S. petition for cert. filed Sept. 18, 2019).
12. Alexandra D. Lahav, The New Privity, SSRN, Apr. 21, 2020, https://tinyurl.com/e83adxv5 (citing MacPherson v. Buick Motor Co., 111 N.E. 1050 (1916)).
13. MacPherson, 111 N.E. 1050.
14. 141 S. Ct. at 1022.
15. Id. at 1028.
16. Alison Frankel, Zantac Generics Plaintiffs Hope SCOTUS Ford Decision Rescues Claims Against Brand-Name Makers, Reuters, Apr. 27, 2021, https://tinyurl.com/da2a6wkw.