MEALEY'STM LITIGATION REPORT Daimler Turns Two: Personal Jurisdiction OverOut-Of-State Mass Tort Defendants In The WakeOf Daimler AG v. Bauman byWilliam R. HanlonandRichard M. Wyner Goodwin Procter LLPWashington, D.C.
A commentary article reprinted from the April 13, 2016 issue of Mealey's Litigation MEALEY'S LITIGATION REPORT: Asbestos Vol. 31, #5 April 13, 2016 Daimler Turns Two: Personal Jurisdiction Over Out-Of-State Mass TortDefendants In The Wake Of Daimler AG v. Bauman ByWilliam R. HanlonandRichard M. Wyner [Editor's Note: William Hanlon and Richard Wyner are The Daimler Decision partners of Goodwin Procter LLP and resident in its There are two types of personal jurisdiction – general Washington, D.C. office. Any commentary or opinions and specific. ‘‘When a State exercises personal jurisdic- do not reflect the opinions of Goodwin Procter or Lexis- tion over a defendant in a suit not arising out of or Nexis, Mealey's. Copyright # 2016 by William Hanlon related to the defendant's contacts with the forum, and Richard Wyner. Responses are welcome.] the State has been said to be exercising ‘general jurisdic-tion' over the defendant.'' Helicopteros Nacionales de Before 2014, most courts and litigants assumed that cor- Colombia, S.A. v. Hall, 466 U.S. 408, 415 n.9 porations are subject to general personal jurisdiction – (1984). By contrast, ‘‘when a State exercises personal that is, jurisdiction over any case, even one having nothing jurisdiction over a defendant in a suit arising out of or to do with the forum state – in every state where they related to the defendant's contacts with the forum, the had continuous and systematic business contacts. That State is exercising ‘specific jurisdiction' over the defen- meant that large corporations could be sued in essen- dant.' Id. at 415 n.8.
tially any state on any claim. And that, in turn, sharplyexacerbated the problem of forum-shopping in mass tort Before Daimler, most courts understood the law to be litigation, as it enabled plaintiffs from across the country that ‘‘[a] defendant is subject to general jurisdiction to file large numbers of lawsuits in a few favored courts.
when it has ‘continuous and systematic general businesscontacts' with the forum state.' uBID, Inc. v. GoDaddy On January 14, 2014, however, the U.S. Supreme Group, Inc., 623 F.3d 421, 425 (7th Cir. 2010) (citing Court issued its decision in Daimler AG v. Bauman, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 134 S. Ct. 746, which held that corporations gener- U.S. 408, 415-16 (1984)).1 ally are subject to general jurisdiction in only twostates – their state of incorporation and the state of In Daimler, however, the Supreme Court held (in an their principal place of business. This article analyzes opinion joined by eight Justices) that ‘‘only a limited set the extent to which, over the past two years, courts of affiliations with a forum will render a defendant have implemented Daimler to restrict the scope of amenable to all-purpose jurisdiction there'' and that, general jurisdiction and thereby limit lawsuits to ‘ [w]ith respect to a corporation, the place of incorpora- states with a genuine connection to the parties' dis- tion and principal place of business are ‘paradig[m] . .
pute. It also examines various arguments that mass bases for general jurisdiction.''' 134 S. Ct. at 760 (cita- tort plaintiffs have made in an effort to evade Daim- tions omitted). The Court declared that subjecting a ler's geographic limitations.
corporation to general jurisdiction in every state in Vol. 31, #5 April 13, 2016 MEALEY'S LITIGATION REPORT: Asbestos which it engages in ‘‘a substantial, continuous, and Efforts to Expand the Scope of Speci- systematic course of business'' would be ‘‘unacceptably grasping.' Id. at 761. The Court also made clear that a A number of plaintiffs have sought to limit Daimler's company may be subject to general jurisdiction in a impact by trying to expand the scope of specific juris- state other than its state of incorporation and principal diction. In some product liability cases, for example, place of business only in an ‘‘exceptional case,' if ever.
plaintiffs allegedly injured by exposure to a defendant's Id. at n.19 (citing Perkins v. Benguet Consolidated product outside the forum state have argued that spe- Mining Co., 342 U.S. 437, 447-49 (1952)).
cific jurisdiction exists because the defendant also soldthe same product in the forum state, theorizing that the As many courts have recognized, Daimler has substan- plaintiff's claim ‘ relates to' those sales because it tially curtailed the scope and use of general jurisdic- involves the same product.
tion.2 Over the past two years, many courts – in masstort litigation and elsewhere – have limited general The California Supreme Court will be addressing this jurisdiction to a defendant corporation's place of incor- issue in Bristol-Myers Squibb Co. v. Superior Court, 175Cal. Rptr. 3d 412 (Cal. App. 2014), review granted and poration and principal place of business,3 and routinely opinion depublished, 180 Cal. Rptr. 3d 99 (Cal. 2014).
held that even ‘‘continuous and systematic'' business in There, 84 California residents and 575 residents of the forum state is no longer sufficient to establish gen- other states filed eight lawsuits against Bristol-Myers eral jurisdiction.4 Indeed, some courts have held that in San Francisco Superior Court, alleging injury result- Daimler changed the law so much that defendants can- ing from exposure to the drug Plavix. Bristol-Myers not be deemed to have waived a Daimler-based personal argued that the court lacked personal jurisdiction over jurisdiction defense through conduct occurring before Bristol-Myers with respect to the claims of the non- Daimler was issued.5 California residents. The appeals court conceded thatBristol-Myers was not subject to general jurisdiction Plaintiffs' Efforts to Circumvent Daimler under Daimler, given that ‘‘we cannot effectively distin- At first, plaintiffs sought to narrow or distinguish guish BMS's extensive sales and research activities in Daimler. Thus, some plaintiffs sought to limit Daim- California from the extensive sales activities of MBUSA ler to cases involving overseas, non-American plain- in California as discussed in Daimler.'' Id. at 424. But tiffs, an overseas corporate defendant, or both. Other the appeals court instead held nonetheless that the plaintiffs tried to squeeze into Daimler's ‘ exceptional Superior Court had specific jurisdiction over Bristol- case' exception, by arguing that a defendant's busi- Myers – even as to the non-California residents' claims.
ness activities in the forum state were so substantial as Specifically, the court said that the ‘‘relatedness'' test for to render it ‘ at home' there. But courts have repeat- specific jurisdiction was satisfied because ‘ plaintiffs edly held that the fact that Daimler involved plaintiffs allege BMS's Plavix sales in California have led to inju- and/or a defendant from outside the United States ries to California residents that are the same as those was simply ‘ not material' to the Supreme Court's suffered by the' non-resident plaintiffs – in other words, analysis in Daimler.6 And almost all courts have because ‘ BMS sold [Plavix] to both resident plaintiffs found that evidence or allegations that the defendant and the [non-resident plaintiffs] as part of the distribu- did substantial business in the forum state does not tion of Plavix in many states.' Id. at 434. The California make the case an exceptional one.7 Supreme Court has granted Bristol-Myers' petition forreview of that decision, and that appeal is pending.8 As a result, more recent efforts to evade Daimler'sgeographic limitations focus on two different kinds By contrast, an Illinois Circuit Court judge reached the of arguments. First, plaintiffs have tried to persuade opposite conclusion in In re Plavix Related Cases, 2014 courts to expand the scope of specific personal jur- Ill. Cir. LEXIS 1 (Ill. Ct. Aug. 11, 2014). In that isdiction. And second, litigants also have argued that matter, 16 Illinois residents and 486 residents of by registering to do business in the forum state, cor- other states filed suits against Bristol-Myers and Sanofi porate defendants have thereby effectively ‘ con- alleging injury as a result of exposure to Plavix. The sented' to jurisdiction, independent of Daimler's court held that, for specific jurisdiction to exist, ‘‘the due process limitations.
plaintiff's claim ‘must directly arise out of the contacts MEALEY'S LITIGATION REPORT: Asbestos Vol. 31, #5 April 13, 2016 between the defendant and the forum.''' Id. at *25. And asserted where the corporation's in-state activity is applying that Illinois test, the court held that ‘ [w]hile ‘continuous and systematic' and that activity gave Defendants established a large business network to rise to the episode in suit.' 131 S. Ct. at 2853. Indeed, facilitate the distribution of Plavix in Illinois, Plaintiffs Goodyear emphasized that even ‘‘regularly occurring have failed to establish any causal or logical link sales of a product in a state do not justify the exercise between their claims and Defendants' Illinois opera- of jurisdiction over a claim unrelated to those sales.' Id.
tions.'' Id. at *27.
at 2853 n.6 (emphasis added). And applying these prin-ciples to the case before it, the Court in Goodyear held Likewise, in Robinson v. Johnson & Johnson, No.
that Goodyear was not subject to specific jurisdiction in BC531848 (Cal. Super. Ct. June 22, 2015), the North Carolina over a claim arising from its sales of tires Los Angeles Superior Court dismissed the claims of overseas, even though it had also sold tens of thousands the numerous out-of-state plaintiffs alleging injury of tires in North Carolina. And in Daimler, the Court from trans-vaginal mesh products, finding that ‘ the reiterated that ‘ specific jurisdiction claims of the non-California plaintiffs have no logical where a corporation's in-state activities are not only connection with California.' The court reasoned that ‘continuous and systematic, but also give rise to the ‘ defendant's relationship with this forum can and liabilities sued on.''' 134 S. Ct. at 761.
should be tested plaintiff-by-plaintiff, and themotion [to dismiss] is only brought as to the non- Indeed, the theory that a manufacturer is subject to That the products and their specific jurisdiction for claims arising from out-of- disclosure warnings were the same or similar and that state sales simply because it also made in-state sales is the product approval process with the federal Food really just a thinly-disguised effort to evade the recent and Drug Administration was common to all plain- decisions restricting the scope of general jurisdiction.
tiffs is not enough to make the jurisdictional facts But Goodyear unequivocally rejected this ‘‘sprawling relevant to a California plaintiff applicable to a view of general jurisdiction' that ‘‘any substantial man- non-California plaintiff.' Slip op. 13-14.9 ufacturer or seller of goods would be amenable to suit,on any claim for relief, wherever its products are dis- In our view, it is highly unlikely that plaintiffs ulti- tributed.'' 131 S. Ct. at 2856. And in Daimler, the mately will succeed in establishing specific jurisdiction Supreme Court held that, except perhaps in an ‘‘excep- over claims arising from the defendant's out-of-state tional case,' general jurisdiction over a corporation conduct based on the argument that the defendant exists only in its state of incorporation and principal also engaged in the same conduct in the forum state, place of business (i.e., where it is ‘‘at home''), not in and that is true with respect to both single-plaintiff each state where it engaged in ‘‘substantial, continuous, cases (like the Illinois cases) and multi-plaintiff cases and systematic course of business.'' 134 S. Ct. at 761.
(like the California lawsuits). Taken together, the Given these rulings, there is little reason to think that Supreme Court's decisions in Walden v. Fiore, 134 S.
the court will countenance an exception where those in Ct. 1115 (2014), Goodyear Dunlop Tires Operations, state sales involved the same product at issue in the S.A. v. Brown, 131 S. Ct. 2846 (2011), and Daimler lawsuit ? an exception that, in an age of nationwide itself make clear that, for specific jurisdiction to exist, corporations selling the same product in many states, the plaintiff's claim must be directly based on conduct would swallow the Daimler rule.
by the defendant occurring in, or targeted at, the forumstate. In Walden, the Court held that ‘‘[t]he inquiry Arguments for Jurisdiction Based on whether a forum State may assert specific jurisdiction over a nonresident defendant ‘focuses on the relation- The second way that plaintiffs have sought to circum- ship among the defendant, the forum, and the litiga- vent Daimler is by arguing that a corporation's compli- tion,' ' and thus ‘ [f]or a State to exercise jurisdiction ance with the forum state's business registration statute consistent with due process, the defendant's suit-related operates as a ‘ consent'' to general jurisdiction, indepen- conduct must create a substantial connection with the dent of Daimler's due process limitations. The corpo- forum State.' 134 S. Ct. at 1121 (citation omitted). In rate laws of every state require foreign corporations to Goodyear, the Supreme Court explained that, under the register and appoint an agent for service of process doctrine of specific jurisdiction, jurisdiction ‘‘could be before transacting certain kinds of business. Before Vol. 31, #5 April 13, 2016 MEALEY'S LITIGATION REPORT: Asbestos Daimler, numerous courts had reached conflicting deci- viability of this theory of ‘‘consent' jurisdiction. In sions as to whether a corporation's compliance with that case, the Delaware Superior Court relied on its such statutes, by itself, constitutes ‘‘consent'' to personal recent order in another case which held that, notwith- jurisdiction. And those conflicting decisions have con- standing Daimler, ‘‘express consent – by registering to tinued post-Daimler. Thus, a number of courts have do business in a state in accordance with state statutes – held that Daimler now makes it clear that compliance remains a valid basis for jurisdiction.''14 The Superior with a business registration statute cannot, standing Court also refused to certify that order for immediate alone, be construed as consent to general jurisdiction.10 review, holding that its ‘ decision applied settled Dela- But other courts have held to the contrary that Daimler ware law.' 15 But the Delaware Supreme Court accepted did not address, and thus does not preclude, construing the defendant's petition for such review, explaining that registration as consent to general jurisdiction.11 ‘ this interlocutory appeal raises an important issueregarding the application of the law of personal jurisdic- In our view, plaintiffs' argument for general jurisdiction tion in a situation this Court has not addressed on a by ‘‘consent' based on state registration is unlikely to prior occasion.'' Del. Sup. Ct. No. 528, 2015, Slip op.
prevail in the long run. As the Supreme Court has at 2 (Oct. 13, 2015). The Delaware Supreme Court instructed, ‘‘[a] state court's assertion of jurisdiction recently held oral argument, during which it raised exposes defendants to the State's coercive power, and substantial questions about the plaintiffs' position, is therefore subject to review for compatibility with the and a decision is expected shortly.
Fourteenth Amendment's Due Process Clause.'' Good-year, 131 S. Ct. at 2850. Accordingly, every exercise of At bottom, because Daimler itself did not directly general jurisdiction over a foreign corporation must be address the question of consent jurisdiction, and examined in terms of the limitations established by because both state and federal courts appear irreconcil- Daimler. Daimler held that subjecting a corporation ably split on the question, it may well take another to general jurisdiction simply because it did business Supreme Court decision to resolve the issue. Until in the forum state violates due process. Given Daimler's then, courtroom battles over consent-by-registration holding that it would be ‘‘unacceptably grasping' for a jurisdiction will likely continue.
state to assert general jurisdiction over a company sim-ply because it is engaged in a regular course of business in the state, it would be just as unacceptably grasping'' Daimler has led to a substantial reduction in the asser- for a state to require a company to consent to general tion of general jurisdiction over corporate defendants, jurisdiction as a condition for doing business in the and this is true in mass tort as well as other kinds of cases. To be sure, efforts to narrow or even eviscerateDaimler are by no means quashed. Given that most Moreover, the ‘ unconstitutional conditions' doctrinecompels precisely that conclusion. Under that doctrine, large corporations sell the same products in many if a state may not ‘‘require a corporation, as a condition not all states, arguments to expand specific jurisdiction precedent to obtaining a permit to do business within to any lawsuit that is, in some broad sense, ‘ related' to the State, to surrender a right and privilege secured to it the defendant's in-state conduct likewise would, if by the Constitution.'' Koontz v. St. Johns River Water accepted, reintroduce general jurisdiction under a dif- Mgmt. Dist., 133 S. Ct. 2586, 2596 (2013). Thus, it ferent name. Moreover, given the ubiquity of state laws would be an unconstitutional condition for a state to requiring non-resident companies to register and/or to require a corporation, as a condition of obtaining appoint an agent for service of process, ‘‘consent'' argu- authorizing to do business, to give up its due process ments threaten as a practical matter to undo Daimler's right against being subjected to general jurisdiction out- core rejection of the ‘‘continuous and systematic busi- side its principal place of business and state of ness contacts'' test for general jurisdiction. Yet because those arguments lack a firm legal foundation, andbecause the Supreme Court is unlikely to look favorably A case presently on appeal to the Supreme Court of on arguments that effectively would nullify its Daimler Delaware, Genuine Parts Company v. Cepec, may be an decision, those efforts will likely fail as the post-Daimler important appellate bellwether for the post-Daimler caselaw becomes more firmly settled.
MEALEY'S LITIGATION REPORT: Asbestos Vol. 31, #5 April 13, 2016 See, e.g., Lanham v. Pilot Travel Ctrs., LLC, 2015 U.S.
Dist. LEXIS 117497, at *5-6 (D. Ore. Sept. 2, 2015) See also, e.g., Tuazon v. R.J. Reynolds Tobacco Co., 433 (‘A corporation's ‘continuous activity of some sort' in F.3d 1163, 1171 (9th Cir. 2006) (‘‘In the context of the forum state is insufficient to subject the corporation general jurisdiction, minimum contacts exist where a to general jurisdiction.'); Clarke v. Pfizer, Inc., 2015 defendant has ‘substantial' or ‘continuous and sys- U.S. Dist. LEXIS 118850, at *4 (E.D. Mo. Sept. 8, tematic' contacts with the forum state, even if the 2015) (‘Even if Defendants marketed and sold Zoloft case is unrelated to those contacts.''); In re Asbestos in Missouri, that does not make their connections with School Litig., 1990 U.S. Dist. LEXIS 2675, at *25- the state ‘continuous and systematic as to render them 26 (E.D. Pa. Mar. 2, 1990) (‘‘a court may exercise essentially at home' here.'); Neeley, supra, 2015 WL general personal jurisdiction over a nonresident cor- 1456984, at *3 (‘Daimler clearly rejects [the] proposi-tion' that ‘every foreign corporation transacting busi- poration when it conducts the carrying on of a con- ness in the state of Missouri would be subject to general tinuous and systematic part of its general business jurisdiction here'); Kraft v. Johnson & Johnson, 2015 within the Commonwealth, even if the cause of action U.S. Dist. LEXIS 45650, at *15 (S.D.W. Va. Apr. 8, is unrelated to the defendant's activities in the Com- 2015) (‘the argument that the defendants market and monwealth' ) (citations omitted).
sell large amounts of products in the forum is unavailingfor the purposes of general jurisdiction''); Manley v. See, e.g., Brown v. Lockheed Martin Corp., 2016 U.S.
Premium Spray Prods., Inc., 2015 U.S. Dist. LEXIS App. LEXIS 2763, at *15 (2d Cir. Feb. 18, 2016) 42485, at *7 (E.D. Pa. Mar. 31, 2015) (‘the sale of a (although they might have sufficed under the more for- company's products in a particular state does not, in giving standard that prevailed in the past, Lockheed's and of itself, establish general jurisdiction over the com- contacts fail to clear the high bar set by Daimler to a pany in that state') state's exercise of general jurisdiction' ); In re AsbestosProducts Liab. Litig. (No. VI), 2014 WL 5394310, at See Gucci Am., Inc. v. Bank of China, 768 F.3d 122, 136 *3 (E.D. Pa. Oct. 23, 2014) (Daimler ‘‘substantially (2d Cir. 2014) (personal jurisdiction defense was not curtailed the application of general jurisdiction over cor- waived because prior to Daimler, defendants were porate defendants'); Robinson v. Johnson & Johnson, No.
deemed subject to general jurisdiction if they had BC531848 (Cal. Super. Ct. June 22, 2015) (‘‘[I]t engaged in a ‘‘continuous and systematic course of seemed settled law that a large multi-state corporate doing business in New York' ); 7 W. 57th St. Realty entity with a substantial physical presence in a given Co., LLC v. Citigroup, Inc., 2015 WL 1514539, at *4- state would itself be subject to the assertion of general 7 (S.D.N.Y. Mar. 31, 2015) (‘Daimler effected a change jurisdiction. But all of these long accepted assumptions in the law, providing defendants as to the nature of in-personam jurisdiction analysis were jurisdiction defense that was previously unavailable to set off kilter when the United States Supreme Court them.''); but see American Fid. Assur. Co. v. Bank of issued its decision in Daimler.'); Neeley v. Wyeth LLC, N.Y. Mellon, 2016 U.S. App. LEXIS 892 (10th Cir.
2015 WL 1456984, at *2 (E.D. Mo. Mar. 30, 2015) Jan. 20, 2016) (holding that Tenth Circuit caselaw (Daimler ‘does require a tighter assessment of the stan- had already employed the standard articulated in dard than perhaps was clear from Goodyear').
See, e.g., Barron v. Pfizer, Inc., 2015 U.S. Dist. LEXIS Lanham, 2015 U.S. Dist. LEXIS 117497, at *7-8; 136020, *3-4 (E.D. Mo. Oct. 6, 2015); Keeley v. Pfizer accord Brown, 2016 U.S. App. LEXIS 2763, at *24- Inc., 2015 U.S. Dist. LEXIS 85282, at *4 (E.D. Mo.
25 (‘‘We perceive no sound basis for restricting Daim- June 1, 2015) (‘The Supreme Court has limited general ler's (or Goodyear's) teachings to suits brought by inter- jurisdiction for a corporation to its place of incorporation national plaintiffs against international corporate or principal place of business except in an ‘exceptional defendants.''); Hid Global Corp. v. Isonas, Inc., 2014 case.''); Clark v. Lockheed Martin Corp., 2016 U.S. Dist.
U.S. Dist. LEXIS 56024, at *9-10 (C.D. Cal. Apr. 21, LEXIS 1000 (S.D. Ill. Jan. 6, 2016) (dismissing asbestos 2014) (‘‘Although HID argues that Daimler is inap- plaintiffs' claims against numerous out-of-state defen- posite because it refers to an international corporation dants for lack of personal jurisdiction).
being sued in the United States, this distinction is Vol. 31, #5 April 13, 2016 MEALEY'S LITIGATION REPORT: Asbestos immaterial. The Daimler opinion makes clear that a though the court would not have specific jurisdiction ‘foreign' corporation is one either outside the United over the defendant if those out-of-state plaintiffs' claims States or a sister state to the forum state.''); Young v. were brought on their own. Although the courts in Bris- Daimler AG, 228 Cal. App. 4th 855, 865 (Cal. App.
tol-Myers and In re Plavix did not adopt that reasoning, 2014) (rejecting argument that Daimler ‘‘should be the court in Tulsa Cancer Inst., PLLC v. Genentech, Inc., confined to its particular facts ? that is, to cases invol- No. 15-CV-158 (N.D. Okla. Oct. 6, 2015), initially ving foreign parties based on events occurring entirely did. In that case, the Oklahoma plaintiffs sought to add outside the United States' ). Indeed, Justice Soto- six additional plaintiffs from other states. The court held mayor's concurring opinion in Daimler expressly that because it had specific jurisdiction over the defen- recognized that ‘‘the principle announced by the major- dant with respect to the Oklahoma plaintiffs' claims, it ity would apply equally to preclude general jurisdiction had ‘pendent' personal jurisdiction over the out-of-state over a U.S. company that is incorporated and has its plaintiffs' claims because they arose ‘‘from the same principal place of business in another U.S. State.' 134 nucleus of operative facts' as the Oklahoma plaintiffs' S. Ct. at 773 n.12 (Sotomayor, J., concurring).
claims. Slip op. at 7. On reconsideration, however, thecourt changed its mind, holding that although the plain- In fact, Daimler itself specifically held that ‘ Daimler's tiffs shared common facts, ‘such commonality between activities in California plainly [did] not approach that claims is not sufficient to support the exercise of specific [‘exceptional'] level'' even though Daimler annually jurisdiction.' 2016 U.S. Dist. LEXIS 3512, at *9 (N.D.
did billions of dollars of business in California. 134 Okla. Jan. 12, 2016) (also citing other cases). See also S. Ct. at 761 n.9; see, e.g., Xilinx, Inc. v. Papst Licensing DeMaria v. Nissan North Am., Inc., 2016 U.S. Dist.
GmbH & Co. KG, 2015 U.S. Dist. LEXIS 90730, at LEXIS 11295 (N.D. Ill. Feb. 1, 2016) (rejecting argu- *15 (N.D. Cal. July 9, 2015) (noting Daimler hold- ment for pendent personal jurisdiction over out-of-state ing); Martinez v. Aero Caribbean, 764 F.3d 1062, plaintiffs based on in-state plaintiff).
1070 (9th Cir. 2014) (no personal jurisdiction despite Alternatively, in at least one pending case, BNSF Railway hundreds of millions of dollars in business).
Co. v. Superior Court, 185 Cal. Rptr. 3d 391 (Cal. App.
2015), plaintiffs have argued further that, as a matter of In Waite v. AII Acquisition Corp., Case No. 15-62359 judicial efficiency, they should be able to sue BNSF as (S.D. Fla. Mar. 10, 2016), the court held that defen- well as all other allegedly responsible defendants in a dant Union Carbide was subject to specific jurisdic- single forum, even though BNSF is not subject to gen- tion in Florida, even though the plaintiff's alleged eral jurisdiction in California under the ordinary Daim- exposure to asbestos-containing products occurred in ler principles and their claims against BNSF arose in Massachusetts, because Union Carbide had sold the Kansas. The Court of Appeal disagreed, holding that same asbestos-containing products in Florida and ‘the due process rights of defendants cannot vary with the plaintiff's injury did not manifest itself until after the types of injury alleged by plaintiffs. Our analysis the plaintiff had moved to Florida. Union Carbide has must focus on ‘the relationship among the defendant, filed a motion for reconsideration, which is pending.
the forum, and the litigation', and that relationship here (Notably, the court's ruling on specific jurisdiction is simply not enough to render petitioner ‘at home' in came in an order in which the court reversed its California such that the exercise of general jurisdiction prior ruling that Union Carbide was subject to general over actions unrelated to petitioner's forum activities is jurisdiction in Florida – a ruling that Union Carbide warranted.' 185 Cal. Rptr. 3d at 401 (citation omitted).
had challenged in an earlier reconsideration motion.) The California Supreme Court has granted review butdeferred any further action pending the disposition of In a similar vein, some plaintiffs have argued that courts Bristol-Myers v. Superior Court. See BNSF Railway Co. v. can adjudicate claims by additional out-of-state plaintiffs Kralovetz, 189 Cal. Rptr. 3d 854 (Cal. 2015). Elsewhere, based on the idea of ‘pendent' specific jurisdiction. Spe- however, this theory has been rejected. See also cifically, they have argued that because the court has Weisblum v. Prophase Labs, Inc., No. 14-CV-3587 specific jurisdiction over the defendant with respect to (S.D.N.Y. Feb. 20, 2015) (dismissing consumer class the claims of in-state plaintiffs, the court has ‘pendent' action fraud claims by California residents for lack of specific jurisdiction over the additional claims in the general jurisdiction over defendant while retaining such same case filed on behalf of out-of-state plaintiffs – even claims by New York residents).
MEALEY'S LITIGATION REPORT: Asbestos Vol. 31, #5 April 13, 2016 See, e.g., Public Impact, LLC v. Boston Consulting state.' On appeal, however, the Federal Circuit upheld Group, Inc., 2015 U.S. Dist. LEXIS 101398, at *13- the decision on the basis of specific jurisdiction without 14 (M.D.N.C. Aug. 4, 2015) (noting that Daimler reaching the issue of consent jurisdiction, although a held that continuous and systematic business contacts concurring judge agreed with the district court that with a state are not sufficient to establish general jur- Mylan was subject to general jurisdiction on the basis isdiction and that ‘‘[a]t least some courts have inter- of consent. 2016 U.S. App. LEXIS 4942 (Fed. Cir.
preted Daimler to mean that a defendant's mere Mar. 18, 2016).
conformance with a State's business registration sta-tute ‘cannot constitute consent to jurisdiction' and In espousing the view that registration to do business therefore is not sufficient for general jurisdiction''); constitutes consent to general jurisdiction, some liti- Astrazeneca AB v. Mylan Pharms., Inc., 2014 U.S.
gants and judges have cited the Supreme Court's 1917 Dist. LEXIS 156660, at *14 (D. Del. Nov. 5, 2014) ruling in Pennsylvania Fire Ins. Co. v. Gold Issue (‘‘In light of the holding in Daimler, the court finds Mining & Milling Co., 243 U.S. 93 (1917), as binding that Mylan's compliance with Delaware's registration precedent. But that case was decided long before the statutes – mandatory for doing business within the Supreme Court expressly held that ‘‘all assertions of state – cannot constitute consent to jurisdiction.''); state-court jurisdiction must be evaluated according to Smith v. Union Carbide Corp., No. 1422-CC00457, the [due process] standards set forth in International Slip op. at 5 (Mo. Cir. Ct. Jan. 12, 2015) (‘‘The Court Shoe and its progeny' and that ‘ [t]o the extent that also notes that service on a foreign corporation's regis- prior decisions are inconsistent with this standard, they tered agent in Missouri does not automatically are overruled.'' Shaffer v. Heitner, 433 U.S. 186, 212 & establish general personal jurisdiction. Plaintiff still n.39 (1977) (citing International Shoe Co. v. Washing- must show that the exercise of general personal juris- ton, 326 U.S. 310 (1945)) (emphasis added).
diction over the foreign corporation complies with theDue Process Clause of the United States Constitu- Put otherwise, compliance with a registration statute tion.''); Surita v. AM Gen. LLC, No. 15-C-7164, cannot properly be viewed as ‘consent.' See, e.g., Mon- Slip op. at 5 (N.D. Ill. Nov. 4, 2015) (asbestos plain- estier, Registration Statutes, General Jurisdiction, and the tiffs' argument for jurisdiction based on defendant's Fallacy of Consent, 36 Cardozo L. Rev. 1343 (2015). An registration to do business ‘ is unavailing, especially in alternative argument that some plaintiffs have made light of Daimler' ).
post-Daimler is that the defendant had waived anyobjec-tion to general jurisdiction by appearing in and See, e.g., Otsuka Pharmaceutical Co. v. Mylan, Inc., 2015 defending earlier cases in the same forum. Courts have U.S. Dist. LEXIS 35679, at *34 (D.N.J. Mar. 23, 2015) rejected this argument, which has no plausible basis. See, (‘‘Mylan Inc. and Mylan Pharma consented to the e.g., Jacobs v. A-C Prod. Liab. Trust, 2014 U.S. Dist.
Court's jurisdiction by registering to do business in LEXIS 33768, at *28 (E.D. Pa. Mar. 11, 2014) (‘[P]lain- New Jersey, by appointing an in-state agent for service tiffs have not produced any case-specific evidence of of process in New Jersey, and by actually engaging in a record identifying which defendants in the instant cases substantial amount of business in this State'); Mitchell v. actually elected to make the strategic legal decision to Eli Lilly & Co., 2016 U.S. Dist. LEXIS 10675, at *24 waive the defense of lack of personal jurisdiction.'') (E.D. Mo. Jan. 29, 2016) (‘by registering to do business (emphases added); In re Asbestos Litig., 2015 WL in Missouri and maintaining an agent for service of 556434, at *5 (Del. Super. Jan. 30, 2015) (‘[F]amiliarity process here, GlaxoSmithKline has ‘consent[ed] to the with the court system [from litigating prior cases] is insuf- jurisdiction of [Missouri's] courts for any cause of action, ficient to render a defendant at home in Delaware.'').
whether or not arising out of activities within thestate.''). In Acorda Therapeutics, Inc. v. Mylan Pharms., Cepec v. Advance Auto Parts, Inc., No. N15C-02-184 Inc., 2015 U.S. Dist. LEXIS 4056, at *15 (D. Del.
(Del. Super. Ct. Aug. 31, 2015), citing Hudson v. Int'l Jan. 14, 2015), the district court held that ‘ Daimler Paper Co., 2015 WL 5016493 (Del. Super. Ct.
does not eliminate consent as a basis for a state to estab- Aug. 25, 2015).
lish general jurisdiction over a corporation which hasappointed an agent for service of process in that state, Cepec, supra note 15, Order of Sept. 24, 2015, Slip as is required as part of registering to do business in that MEALEY'S LITIGATION REPORT: ASBESTOS edited by Bryan Redding The Report is produced twice monthly by 1600 John F. Kennedy Blvd., Suite 1655, Philadelphia, PA 19103, USA Telephone: (215)564-1788 1-800-MEALEYS (1-800-632-5397) Web site:



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