Categorical Confusion in Personal Jurisdiction Law

Washington and Lee Law Review Volume 76 | Issue 2 Article 4 6-19-2019 Categorical Confusion in Personal Jurisdiction Law Todd Peterson George Washington University, Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Civil Procedure Commons, Constitutional Law Commons, Jurisdiction Commons, and the Supreme Court of the United States Commons Recommended Citation Todd Peterson, Categorical Confusion in Personal Jurisdiction Law, 76 Wash. & Lee L. Rev. 655 (2019), https://scholarlycommons.law.wlu.edu/wlulr/vol76/iss2/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact . Categorical Confusion in Personal Jurisdiction Law Todd David Peterson* Table of Contents I. Introduction ...................................................................... 657 II. The Substantive Due Process Limitations on Personal Jurisdiction ....................................................... 663 III. The Missing Theory for Contacts-Based Substantive Due Process Rules .................................................................... 679 A. The Contacts Requirement is a Substantive Due Process Principle ........................................................ 680 B. The Court’s Failed Attempts to Provide Constitutional Rationale for the Substantive Due Process Contacts Requirement .......................... 684 C. The Consequences of the Court’s Failure to Identify the Rationale for the Substantive Due Process Contacts Requirement ............................................... 695 D. The Anomalies Inherent in the Substantive Due Process Contacts Requirement ................................. 699 IV. The Unexpected Disappearance of Corporate-Activities-Based Jurisdiction ......................... 701 A. The Goodyear Case: The Hint of a New Standard ............................................................ 705 B. Daimler: The Hint of a New Standard Converted to a Holding, but with a Possible Exception ............ 719 C. The BNSF Case: The New Standard, But Now with No Meaningful Exception ................................. 737 * Professor of Law, The George Washington University Law School. 655 656 76 WASH. & LEE L. REV. 655 (2019) D. Bristol-Myers Squibb: Corporate-Activities-Based Jurisdiction Eliminated, with No Expansion of Specific Jurisdiction................................................... 742 V. The Theoretical and Practical Problems with the Court’s Current Personal Jurisdiction Standards.......... 748 A. The Court’s Current Substantive Due Process Contacts Requirements Are Theoretically Threadbare ................................................................. 749 B. How the Categorical Ambiguity of the Term “General Jurisdiction” Led to the Demise of Corporate-Activities-Based Jurisdiction .................. 757 C. The Practical Problems Created by the Elimination of Corporate-Activities-Based Jurisdiction .............. 762 D. Final Questions Raised by the Elimination of Corporate-Activities-Based Jurisdiction .................. 765 1. How Did the Elimination of Corporate-Activities-Based Jurisdiction Occur So Easily?.................................................. 765 2. Why Would Justice Ginsburg Reshape Personal Jurisdiction Doctrine in a Manner that So Clearly Favors Corporate Defendants?.............. 767 VI. Where Do We Go From Here? ......................................... 770 A. The Court Should Place Procedural Due Process Considerations First and then Explain the Theoretical Foundation for Whatever Substantive Due Process Requirements the Court Believes to Be Necessary After That ....................................... 771 B. The Court Should Correct the Mistake It Made in the Categorization of Dispute-Blind Jurisdiction .... 772 C. The Court Should Solve Its Other Personal Jurisdiction Categories Problem by Insuring that the Theoretical Foundations and Doctrinal Rules of Each Category are Consistent with Those of the Others ......................................................................... 774 CATEGORICAL CONFUSION 657 I. Introduction Imagine two different cases over which the California courts might wish to assert personal jurisdiction. Case one is brought against Walmart by a California plaintiff who was injured by a defective Walmart product he bought in Ellsworth, Maine, while on a vacation to Acadia National Park. Although he was injured in Maine, the plaintiff now wishes to sue Walmart in his home state of California where Walmart has 303 retail outlets, fourteen distribution centers, 89,736 employees, and to which it pays $492.8 million in taxes.1 Case two is brought by a California plaintiff against an individual defendant who lives in Maine. The claim arose in Maine and has no connection to the state of California, but the defendant was served with process while on a three-day business trip to California. In each case the defendant moves to dismiss the complaint for lack of personal jurisdiction in California. It might surprise you to learn that, under current Supreme Court case law, the California court would have to rule that the California suit would violate Walmart’s due process rights because the claim did not arise in California and because Walmart is neither incorporated in California nor has its principal place of business in California.2 On the other hand, current Supreme Court precedent would permit the suit against the individual defendant 1. Location Facts, WALMART, INC., https://corporate.walmart.com/ourstory/locations/united-states/california#/united-states/california (last visited Jan. 9, 2019) (on file with the Washington and Lee Law Review). 2. See BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1559 (2017) (holding that “in-state business . . . does not suffice to permit the assertion of general jurisdiction over claims . . . that are unrelated to any activity occurring in [that state]”); Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1781 (2017) (rejecting the California Supreme Court’s sliding scale approach for specific jurisdiction); Daimler AG v. Bauman, 571 U.S. 117, 136 (2014) (“Even if we were to assume that [Daimler’s subsidiary, MBUSA,] is at home in California, and further to assume MBUSA's contacts are imputable to Daimler, there would still be no basis to subject Daimler to general jurisdiction in California . . . .”); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (“A court may assert general jurisdiction over foreign . . . 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.”); see also infra Part (...truncated)