FORD'S UNDERLYING CONTROVERSY.

• Author: Bartholomew, Christine P.

ABSTRACT

Personal jurisdiction--the doctrine that determines where a plaintiff can sue--is a mess. Everyone agrees that a court can exercise personal jurisdiction over a defendant with sufficient instate contacts related to a plaintiff's claim. This Article reveals, however, that courts diverge radically in their understanding of what a claim is. Without stating so outright, some courts limit the claim to a cause of action or its elements, while others understand it to encompass the controversy underlying the litigation. What is worse, few have noticed that these discrepancies even exist, much less explained why. This Article does just that. We show that how a court chooses to define claim, while usually left implicit, controls the scope of jurisdiction. That choice can force parties to litigate piecemeal and effectively foreclose restitution for underresourced plaintiffs by shutting them out their home courts. This chaos harms litigants, disrupts the judicial system, and undermines civil procedure values. As of this year, it also flies in the face of Supreme Court precedent. We show how the recent decision in Ford v. Montana settles the matter and helps cohere personal jurisdiction with its underlying due process commitments.

TABLE OF CONTENTS INTRODUCTION I. A VERY SHORT HISTORY OH PERSONAL JURISDICTION A. Principles: Sovereignty, Fairness, Efficiency B. Analysis: From State Borders to Purposeful Availment II. Nexus to What? A. Underlying Controversy B. Cause-of-Action C. Element D. The Shifting Aperture III. MAKING THE CLAIM AFTER FORD IV. REFOCUSING PERSONAL JURISDICTION A. Promoting Fairness & Predictability B. Cohering Civil Procedure Doctrine C. Supporting State Sovereignty CONCLUSION INTRODUCTION

A man dies in Mississippi when a helicopter platform collapses. His grieving mother, seeking justice, sues the platform designer in Mississippi. After all, that is where the platform fell. That is where the designer delivered and inspected the platform. And that is where the witnesses remain. Too bad, the court says. The designer sketched the design in Florida. He no longer lives in Florida. Nothing having to do with the accident took place in Florida. And neither the helicopter company nor the deceased man have a connection to Florida. But since the mother claims a design defect, she has to go to Florida to sue. (1)

A Colorado rancher negotiates with two companies to promote his new calf valuation method, but the deal falls through. The two companies--one from Colorado and one from Montana--meet up with each other. Soon after, they start marketing a tool that looks an awful lot like the rancher's invention. He sues in Colorado, bringing state and federal claims about the theft of his intellectual property. Too bad, the court says. Both companies negotiated with you, and with each other, in Colorado. The cases involve overlapping facts and witnesses and come out of the same failed deal. But the rancher cannot show which of the Montana company's state contacts relate to which of his claims. So he cannot sue it for any claims in Colorado.

Instead, the rancher must bring two separate lawsuits in two separate states to recover for the theft. (2)

Such unjust and inefficient results may seem counterintuitive and even absurd. As this Article shows, however, they are also commonplace. They result from surprisingly widespread judicial misconceptions about personal jurisdiction. (3) As every first-year law student learns, a court can exercise specific personal jurisdiction over a defendant that has sufficient state contacts with a nexus to a plaintiffs claim. (4) These three factors--a defendant's contacts, a plaintiffs claim, and the nexus between the two--determine whether a plaintiff can sue a defendant in a given state, or if the plaintiff must go elsewhere to seek relief. (5)

Everyone agrees on the basic contacts-ncxus-claim formula, and courts across the country repeat it consistently. But this seeming consensus obscures an underlying controversy over what, exactly, constitutes a claim. It turns out that different circuits--and even different courts within circuits--have different answers. Some produce the very results we just described--the grieving mother shut out of her chosen court, or the harmed inventor with piecemeal cases in different states. Others would allow these plaintiffs to bring a single suit in their chosen forum.

This Article is the first to comprehensively analyze the varying approaches federal courts adopt toward a claim. (6) It develops a typology that elucidates hidden inconsistencies plaguing personal jurisdiction determinations. Some courts restrict a claim to a particular cause of action, (7) or even a cause of action's elements. (8) In these courts, only contacts that have specific legal consequences matter--such as where a product is designed or a contract is signed. Other courts understand the plaintiffs claim to encompass the whole controversy underlying the litigation. (9) These courts look beyond the operative facts to consider the transaction, occurrence, or event underlying the plaintiffs asserted harms.

Our typology reveals that a court's choice of approach shapes the scope of personal jurisdiction. In other words, personal jurisdiction turns on the way a court defines a claim. After all, the claim determines which of a defendant's contacts are relevant to the personal jurisdiction analysis in the first place. (10)

This past Term's Supreme Court decision in Ford v. Montana resolves this hidden debate. (11) Ford, which reiterates the familiar contacts-nexus-claim formula, (12) focuses its discussion primarily on the nexus requirement. (13) Most scholarship so far has followed suit. (14) This Article explains how Ford's primary contribution has gone unrecognized: the case provides clear legal authority defining a claim as the entire underlying controversy from which litigation arises. (15) The Supreme Court has left no doubt that it considers real-world transactions, occurrences, and events--not causes of action or their elements--as the basis for personal jurisdiction. And so, after Ford, should lower courts.

The Article unfolds as follows. Part I situates the reader in personal jurisdiction doctrine by articulating its underlying rationales and succinctly reviewing how the contact, nexus, and claim requirements developed. Part II focuses squarely on courts' varying definitions of claim, which we characterize as element, cause-of-action, and underlying controversy. This Part explains how each approach functions in practice. It also provides the legal community with a shared language for discussing claims.

Part III shows how, without ever saying so outright, Ford mandates the underlying controversy approach to claims. Ford's personal jurisdiction analysis extensively considers the events, transactions, and occurrences that prompt litigation. (16) Under a cause-of-action or element approach, Ford could not have reached the result it did.

Part IV evaluates the implications of the underlying controversy standard. We explain why it is the only one that supports the motivating principles of personal jurisdiction doctrine. It tethers jurisdiction to a defendant's purposeful availment of a state's benefits, not to the plaintiffs theory of recovery. It upholds the legal system's commitment to treating like cases alike, rather than leaving people uncertain about where litigation is possible--or blindsided by the results. (17) And it allows states a say in regulating activities that affect their territory and their residents, in line with the doctrine's concern with state sovereignty. (18) The Article thus illuminates a crucial but underrecognized problem in how courts exercise their power, explains how a Supreme Court decision subtly but conclusively settles the issue, and evaluates the implications of this new legal standard.

1. A VERY SHORT HISTORY OF PERSONAL JURISDICTION

   This Part offers a brief refresher on personal jurisdiction, the doctrine that defines a court's power over defendants. Personal jurisdiction determines where a plaintiff may bring suit: it determines which courts, located in which places, can force a given defendant to litigate. Given the complexity of this field and the high volume of excellent scholarship it has generated, we do not aim to provide an exhaustive explanation. Our point here is simply to trace the arc of personal jurisdiction developments and the values they invoke. This context sets the stage for explaining the central role a claim plays in a state's power over nonresidents.

   1. Principles: Sovereignty, Fairness, Efficiency

      We start with underlying principles. What values motivate or justify personal jurisdiction doctrine? As the doctrine has developed, explanations have changed. Early on, the Court rooted personal jurisdiction in concerns about states' "encroachment" on one another's territorial power: the possibility that a court in one state could exert power over someone in another challenged the principle of state sovereignty. (19) And the Court continues to make glancing allusions to sovereignty as a concern for personal jurisdiction, (20) focusing on a state's interest in hearing claims if underlying events occurred within the state or the parties are residents. (21)

      Increasingly, though, the Court's concern has shifted away from territorial concerns and toward the Constitution's guarantee of due process, expressed in the notion of fairness. (22) Rather than an abstract or everyday conceptualization of fairness, in the context of due process jurisprudence, fairness is a term of art. It focuses on preserving individual liberty and preventing arbitrary uses of governmental power. (23) Strictures about where parties can litigate should balance a plaintiffs choice of forum against a defendant's burdens in being haled into court. And they should promote efficiency to avoid wasting the resources of either the parties or the judiciary.

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