FORD V. WHERE ARE WE?: THE REVIVAL OF THE SLIDING SCALE TO GOVERN THE SUPREME COURT'S NEW 'RELATING TO' PERSONAL JURISDICTION.

• Author: Manaris, Zois

TABLE OF CONTENTS INTRODUCTION 266 I. THE SLIDING SCALE AND ITS RELATIONSHIP WITH THE COURT 270 A. Bristol-Myers Squibb Co. v. Superior Court of California: A Bad First Impression 272 1. Majority Opinion 273 2. Justice Sotomayor's Dissent 275 B. Ford Motor Co. v. Montana Eighth Judicial District Court: The Sliding Scale's Tacit Revival 276 1. Majority Opinion 277 2. Justice Alito's Concurrence 280 3. Justice Gorsuch's Concurrence 281 II. DEFINING THE REVIVED SLIDING SCALE'S "REAL LIMITS" TO SQUARE IT WITH COURT PRECEDENT 282 A. Recommending the Reasonableness Factors as the Revived Scale's "Real Limits," with Rationales 283 B. Applying the Revived Sliding Scale to Bristol-Myers 286 C. Applying the Revived Sliding Scale to Ford 291 III. THE SLIDING SCALE GOING FORWARD: APPLYING THIS NOTE'S APPROACH TO THE NEXT QUESTIONS THE COURT MAY FACE 294 A. Road Trip: Cases Where Plaintiffs Are Injured Away from Home 294 B. The Road Not Travelled by the Ford Majority 296 CONCLUSION 298 INTRODUCTION

In each of its first six personal jurisdiction cases since 2011, the Supreme Court systematically imposed new restrictions on personal jurisdiction, encumbering plaintiffs in their search for justice. (1) So, in early 2021, when the Court heard its seventh case, Ford Motor Co. v. Montana Eighth Judicial District Court, it faced quite the conundrum: the correct outcome was obvious, but it appeared foreclosed by the Court's ever-narrowing case law. (2) In two consolidated cases, the question posed to the Court was whether the exercise of personal jurisdiction over Ford was appropriate in Minnesota and Montana. (3)

For the uninitiated, personal jurisdiction comes in two forms: general and specific. (4) Which form of personal jurisdiction a defendant is subject to in a given state--and thus the types of claims the defendant could face there--depends on the defendant's contacts with that state. (5) Corporate defendants are subject to general jurisdiction only when their contacts with the forum state are such that they are "essentially at home" in that state (6)--that is, only in their state of incorporation and the state where the corporation has its principal place of business. (7) Similarly, an individual defendant is subject to general jurisdiction in her home state, that in which she is domiciled. (8) If a state can exercise general jurisdiction over a defendant, its courts can entertain "any and all claims against them." (9)

A defendant's contacts to the forum need not be as extensive for a court to exercise specific jurisdiction, (10) but a defendant--corporate or individual--must still deliberately "reach out beyond [their] state" and into the forum in some capacity. (11) Even when the nonresident defendant has reached out, the forum state may only exercise specific jurisdiction over suits that "arise out of or relate to the defendant's contacts with the forum." (12) Courts traditionally read this language as a unit, requiring some sort of causal link between the defendant's connections to the forum and the plaintiff's cause of action. (13)

The two cases in Ford were products liability lawsuits with similar facts. The suits arose from car accidents in Minnesota and Montana, brought in those respective states by plaintiffs domiciled there. (14) Ford's contacts with Minnesota and Montana were robust: the company incessantly advertised in those states, (15) sold cars to dealerships licensed to sell Fords in those states (including the same models as those involved in the respective suits), (16) and had certified repair and replacement services in those states. (17) Nonetheless, general jurisdiction was off the table; Ford was "at home" in Delaware and Michigan. (18) The focus necessarily then turned to specific jurisdiction. But both cars at issue were originally sold in other states, only making their way to the fora through subsequent consumer-to-consumer second-hand sales. (19) The cars also were neither manufactured nor designed in Minnesota or Montana. (20) Ford's connections to the states and the respective lawsuits lacked any direct causal link. (21)

Thus, Ford fell into a gray area between general and specific jurisdiction. Ford possessed an abundance of contacts with the forum states--but not enough to render it "at home"--and those contacts bore a resemblance to the causes of action--but held no causal link. (22) A determination that Ford would not be subject to personal jurisdiction in these states, though, seems ridiculous. The reason why courts are concerned with the quantity and quality of a defendant's contacts with the forum state in determining the propriety of personal jurisdiction is to ensure "that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" (23) Ford's contacts with Montana and Minnesota being what they were, it would have been absurd to say that it was unjust or offensive to any notion of fairness that Ford defend the suits in those states. (24) Particularly absurd because the Supreme Court assumed that personal jurisdiction was proper in this type of case all the way back in 1980 in World- Wide Volkswagen Corp. v. Woodson, (25) where it said that similarly situated global car company Audi would be subject to personal jurisdiction in Oklahoma under a comparable set of facts. (26)

The Ford Court agreed, unanimous in its determination, (27) though split in its reasoning. (28) The Ford majority bifurcated the "aris[ing] out of or relating] to" requirement, meaning that, for specific jurisdiction to be proper, a claim could either "arise out of or "relate to" a defendant's contacts with the forum state, the latter not requiring causation. (29) The majority, however, did not clearly define a justiciable test to govern this new "relat[ing] to" specific jurisdiction, (30) nor did it delineate its limits. (31)

This Note proposes a test to govern "relating to" specific jurisdiction, a variation on a theme to those familiar with the doctrine: a "sliding scale" approach to contacts and relatedness, accompanied by a separate assessment of reasonableness factors the Supreme Court has outlined in previous cases (32) to serve as a check on the sliding scale. Part I of this Note explains the "sliding scale" approach, its unpleasant first interaction with the Court, and its revival by the Ford majority. Part II defines this Note's proposed test and demonstrates its consistency with Supreme Court precedent. Finally, Part III applies this Note's proposed approach to hypothetical fact patterns falling within the traditional general-specific personal jurisdiction gray area that raise questions that could mark the next developments of "relating to" jurisdiction doctrine.

1. THE SLIDING SCALE AND ITS RELATIONSHIP WITH THE COURT

   Professor William M. Richman offered the sliding scale to deal with the precise gray area question the Court faced in Ford and will certainly face again in the future:

   [W]hether jurisdiction is proper in a case that falls between [general and specific jurisdiction,] 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. (33) The approach proposes blending the requirements of general and specific jurisdiction. General and specific jurisdiction sit at "the two opposite ends of [the] sliding scale." (34) For cases falling between these two ends, the scale weighs "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." (35) The stronger the defendant's contacts to the forum, the weaker the proximity between the contacts and plaintiff's claim can be, until you reach the general jurisdiction end of the scale. (36) Conversely, weaker forum contacts require a stronger connection between those contacts and the cause of action, leading to the specific jurisdiction end of the scale. (37)

   1. Bristol-Myers Squibb Co. v. Superior Court of California: A Bad First Impression

      Bristol-Myers Squibb Co. v. Superior Court of California marked the Supreme Court's first run-in with the sliding scale. (38) In that case, the plaintiffs brought a mass tort suit in California state court against pharmaceutical giant Bristol-Myers over personal injuries allegedly caused by the company's blood-thinning drug Plavix. (39) Of the 678 plaintiffs in the suit, 592 of them were not California residents. (40) With Bristol-Myers not "at home" in California, (41) the question was whether the California court could exercise specific personal jurisdiction over Bristol-Myers with respect to the claims of the non-California plaintiffs. (42)

      Bristol-Myers's contacts with California were unquestionably extensive. (43) The relationship between those contacts and the nonresidents' claims, however, was not as strong. Although the company sold Plavix in California, (44) the Plavix the nonresidents ingested was not sold in California, nor was it manufactured, developed, labeled, or packaged there. (45) The nonresidents also did not obtain Plavix via any California doctor or source, nor did they suffer or get treated for any injuries from the drug in California. (46) Like in Ford, there was no causal link. (47)

      The California Supreme Court, using a version of the sliding scale, found there was personal jurisdiction over Bristol-Myers as to the nonresident claims. (48) Given the wide-ranging nature of Bristol-Myers's contacts with the forum, (49) the California court said it could exercise specific jurisdiction "based on a less direct connection between [Bristol-Myers]'s forum activities and plaintiffs' claims than might otherwise be required." (50) The court concluded that the nonresident claims showed a sufficient connection to Bristol-Myers's forum contacts because those claims were...