May 14, 2021

Volume XI, Number 134

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Supreme Court Update: Ford Motor Co. v. Montana Eighth Judicial District Court (No. 19-368)

The Court released two significant opinions yesterday, addressing personal jurisdiction in product-liability actions and the concept of “failed seizures” under the Fourth Amendment.

Among civil litigators, Ford Motor Co. v. Montana Eighth Judicial District Court (No. 19-368), isn’t just one of the most anticipated cases of OT20; it’s one of the most anticipated cases of OT19, when it was originally slated for argument, before being bumped due to the pandemic. Products defense lawyers, in particular, have been eager to learn whether the Court would agree with Ford that companies should not be subject to personal jurisdiction in a state where their product has caused an injury unless they have designed, manufactured, or sold that specific product in the forum state. At long last, the wait is over. In a unanimous decision, the Supreme Court rejected Ford’s argument and held that “[w]hen 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.”

The case involved two car accidents in two different states. In Montana, Markkaya Gullett was driving a 1996 Ford Explorer when the tread separated from a rear tire and the vehicle spun out and flipped over, killing her. In Minnesota, Adam Bandemer was riding in a friend’s 1994 Crown Victoria, when they rear-ended a snowplow; Bandemer’s airbag failed to deploy, and he suffered serious brain damage. These plaintiffs sued Ford in their respective state courts, asserting products-liability and negligence claims. In each case, Ford moved to dismiss for lack of personal jurisdiction. It argued that the state courts had jurisdiction only if the company had designed, manufactured, or sold in the state the particular vehicle involved in the accident. Neither plaintiff could make that showing, because the vehicles were designed in Michigan, manufactured in (respectively) Kentucky and Canada, and sold in other states before consumers, through resales and relocations, brought the vehicles to Montana and Minnesota. The Montana and Minnesota Supreme Courts rejected Ford’s argument, concluding that Ford had purposely availed itself of their states’ markets. The U.S. Supreme Court granted certiorari, and affirmed.

Writing for a unanimous Court (with Justice Barrett recused), Justice Kagan began where we all started 1L year, with International Shoe v. Washington (1945). There, the Court held that a tribunal’s authority over a defendant depends on its having “minimum contacts” with the forum state, such that “the maintenance of the suit” is “reasonable in the context of our federal system of government” and “does not offend traditional notions of fair play and substantial justice.” From these origins, the Court has recognized two types of personal jurisdiction: general and specific. General jurisdiction exists only when a defendant is “essentially at home” in the forum state. Specific jurisdiction may exist even when a defendant has few connections to the forum state, as long as the defendant has purposely availed itself of the privilege of conducting activities in the state and the plaintiff’s claims “arise out of or relate to the defendant’s contacts” within the forum. Here, while Ford admitted that it had purposely availed itself of the privilege of conducting activities in both Montana and Minnesota, it argued that those activities were not sufficiently connected to the plaintiffs’ injury claims to warrant specific jurisdiction. Instead, Ford argued that due process requires a proximate causal link between its activities and the plaintiffs’ claims, such that jurisdiction would be located only where it designed, manufactured, or (most likely) sold the cars in question.

As Justice Kagan, observed, Ford’s argument would represent a significant limitation of jurisdiction over companies with nationwide contacts, and the Court wasn’t having it. Though due process requires that a plaintiff’s claims “arise out of or relate to” a defendant’s activities within the forum state, that is a disjunctive formulation, and only one part (“arise out of”) connotes a causal connection. The second half of the formulation (“relate to”) extends beyond causality. Ford advertises and markets its vehicles (including Explorers and, believe it or not, Crown Vics) in Montana and Minnesota, and it works to foster ongoing connections with Ford owners. Because Ford systematically served the markets in Montana and Minnesota for the vehicles that allegedly malfunctioned, there is a strong enough “relationship among the defendant, the forum, and the litigation” to warrant the exercise of personal jurisdiction. Justice Kagan rejected Ford’s argument that the Court’s recent decisions in Bristol-Myers Squibb v. Superior Court of California, San Francisco Cnty. (2017), and Walden v. Fiore (2014)foreclose jurisdiction when the product causing a plaintiff’s injury was not designed, manufactured, or sold within the forum state. In Bristol-Myers, there was no connection between the plaintiffs’ claims and the forum state; the plaintiffs were simply engaged in “forum-shopping.” Here, by contrast, the plaintiffs used the allegedly defective vehicles in their home states and suffered their injuries there. And in Walden, the defendant (a Georgia police officer who seized money from the plaintiffs before they boarded a flight to their home state of Nevada) had no contacts with the forum state. Here, by contrast,  “Ford has a veritable truckload of contacts” with both states. In sum, because “Ford extensively promoted, sold, and serviced” the allegedly defective products in Montana and Minnesota, “the relationship among the defendant, the forums, and the litigation is close enough to support specific jurisdiction.”

Aside from Justice Barrett, who did not participate, every justice joined in the Court’s judgment finding specific jurisdiction. There were, however, a couple of concurrences. Justice Alito wrote separately to stress that the matter could be resolved “without any alteration or refinement of our case law on specific personal jurisdiction.” The rule since International Shoe has been that personal jurisdiction exists if the defendant has minimum contacts “such that the maintenance of the suit does not offend traditional notions of fair play and justice.” “That standard is easily met here,” Justice Alito argued, where Ford has long had a heavy presence in both states. He agreed with Justice Kagan in rejecting Ford’s argument for a strict causality requirement, but disagreed with the majority opinion’s parsing of the phrase “arise out of or relate to” as if it were a statute. Alito worried that the Court had effectively recognized a new category of cases in which personal jurisdiction is permitted even when there is no causal connection between the defendants contacts and the plaintiff’s claims. Justice Gorsuch shared this concern, but went a bit further. In his own concurrence, joined by Justice Thomas, Gorsuch warned that the traditional distinction between general and specific jurisdiction has “begun to look a little battered” over time. The apparently new “relate to” test for specific jurisdiction further erodes the distinction, “adding new layers of confusion to our personal jurisdiction jurisprudence.”  Given this confusion, Gorsuch advocated a fresh look at the origins of the Court’s personal-jurisdiction jurisprudence. International Shoe and its progeny were, he argued “muscular interventions” by the Court into an area of law that the Constitution is not actually concerned with. Although they did not quite come out and say so, it seems that Justices Gorsuch and Thomas would be willing to do away with the Court’s longstanding approach and recognize personal jurisdiction over nationwide corporations like Ford in any state on any claim. Given that alternative, perhaps Ford should count itself lucky.

The Court’s second decision of the day, Torres v. Madrid (No. 19-292), settles a long-open question in Fourth Amendment caselaw: If a police officer tries, but fails, to detain a person by applying physical force, has the officer “seized” the person for the purposes of the Fourth Amendment? Writing for the same five-justice majority that signed on to Justice Kagan’s opinion in Ford Motor Co., Chief Justice Roberts answered yes. Only this time, the three remaining justices (Justices Gorsuch, Thomas, and Alito) dissented.

The facts of the case are simple. New Mexico State Police officers went to an apartment complex in Albuquerque to execute an arrest warrant. There, they saw Roxanne Torres—not the target of the warrant—talking to another person. For reasons that are disputed, the officers tried to speak with Torres, but she got into her nearby car and fled. Two officers then fired thirteen shots into her car, two of which struck Torres and seriously injured her, but she nonetheless escaped. She was arrested the next day and soon pled guilty to various crimes related to her flight.

Torres later sued the officers under Section 1983, alleging that they applied excessive force in shooting her, in violation of the Fourteenth Amendment. But the district court granted summary judgment to the officers, reasoning that Torres was not “seized” by the officers for the purposes of the Fourth Amendment’s protection against unreasonable searches and seizures, because the force officers applied to her (i.e., shooting her) did not result in them in fact getting physical control over her person. The Tenth Circuit, relying on circuit precedent, affirmed. The Court granted cert to resolve a split between several courts on this question. 

Writing for the five-justice majority, Chief Justice Roberts viewed the case as already more or less decided by the Court’s 1991 decision in California v. Hodari D. In that case, Justice Scalia (joined by six others) explained that pre-Fourth Amendment common law treated “the mere grasping or application of physical force with lawful authority” as an arrest “whether or not it succeeded in subduing the arrestee.” Thus, an officer’s application of physical force to a person for the purpose of arresting him is an arrest, not an attempted arrest, regardless of whether it is successful. By contrast, common-law sources treated a show of authority—such as an order to halt—differently: That only becomes an arrest if the person commanded to halt in fact complies with the demand. Thus, in the Chief’s view, Hodari D. established that an arrest takes place either when there is physical force applied to the arrestee’s body—whether or not it succeeds in stopping the person—or where the arrestee in fact submits to the assertion of authority. And reviewing the common-law sources Hodari D. relied on for this rule, the Chief reaffirmed its conclusion: Pre-Fourth Amendment caselaw consistently treated the application of any physical force (even as slight as touching the arrestee “with the end of [one’s] finger”) as an arrest, regardless of whether officers were ultimately able to obtain physical control of the person.

Anticipating arguments from the dissent (which we’ll get to shortly), the Chief Justice saw no reason to restrict this rule to cases where force was physically applied by an officer’s hands (i.e., attempting to grab and detain the person), excluding cases where the force was applied by other means (i.e., shooting the person). True, police officers did not carry firearms in 18th Century England, so the pre-Fourth Amendment caselaw was not addressing fact patterns exactly like the one in this case. But the Fourth Amendment aims to protect the “privacy and security of individuals,” and most people would regard being shot by the police as an interference with their privacy and security on par with being grabbed. The Chief stressed, however, that not every form of physical conduct between a government employee and a member of the public will be a Fourth Amendment seizure. Rather, the force must be applied “with intent to restrain” (with intent determined objectively), excluding cases where the force was accidental or was applied for some other purpose. But there was no need to address that issue in this case, where all agreed that the officers applied physical force to Torres’s body deliberately and with the intent to prevent her from driving off. Thus Torres was “seized” for Fourth Amendment purposes.

Finally, the Chief Justice brushed aside an alternative rule proposed by the officers, some amici, and the dissent: That a person is seized under the Fourth Amendment only where there is an “intentional acquisition of control.” In support of this rule, they argued thatthe common-law cases relied on by Hodari D. were dealing only with civil liability for the wrongful arrests of debtors, not the arrest of felons. But the Chief saw no reason to bifurcate the meaning of arrest in this way, and in fact, when common-law courts confronted arrests for criminal offenses (a situation that didn’t arise much until after the adoption of the Fourth Amendment), they relied on this same caselaw involving arrests for civil offenses. Moreover, restricting seizures to “intentional acquisition[s] of physical control” would erase the long-standing distinction (one that in fairness, the Court has not always observed) between seizures by control and seizures by force. Rational or not, the common-law distinguished between these two alternative means of seizing a person, recognizing that the first (such as the command to stop) amounted to a seizure only when it was submitted to, while the second was a seizure regardless of success.

Justice Gorsuch, joined by Justices Thomas and Alito, dissented, proposing a simplified and more unified approach to what constitutes a seizure under the Fourth Amendment. After discussing the facts (with a slant much less favorable to Torres than in the Chief’s opinion), he quickly dismissed Hodari D.’s rule as nothing more than dicta, because the only thing actually decided in that case was when a show of authority amounts to an arrest (answer: only where the person submits). With Hodari D. as binding precedent out of the way, Justice Gorsuch turned to the Fourth Amendment’s plain text. It protects people from “unreasonable searches and seizures,” and the ordinary understanding of a “seizure” requires obtaining possession. While all agreed with that requirement when it came to seizures of things—one’s papers are only “seized” if officers in fact obtain them—the majority’s approach meant that seizure had a different meaning when it came to seizing people. Nothing in the Constitution’s text suggested this bifurcated approach.

So what of the pre-Fourth Amendment cases the majority relied on as a guide to the Framers’ understanding of the Amendment’s words? Looking to a different set of cases—ones dealing with the tort of false imprisonment—Justice Gorsuch viewed the pre-Fourth Amendment caselaw as saying that an arrest occurred only when officers got possession (or custody) of someone. True, there were some cases suggesting that the “mere touch” of a person could be an arrest, but Justice Gorsuch viewed those cases as inapplicable, because they concerned much different legal questions, namely whether a debtor had been arrested for the purposes of debt-collection proceedings. And those cases involved the meaning of the term “arrest,” not the Fourth Amendment’s “seizure,” further diminishing their relevance. The dissent would thus endorse a more unified approach to the Fourth Amendment, holding that regardless of the type of thing at issue and the method through which officers try to seize it, a “seizure” only takes place when officers actually and intentionally obtain control over the person or object. That standard was not met here, so they would have affirmed the Tenth Circuit’s rejection of Torres’s claim.

That’s all for this week’s opinions. In addition, the Court granted  certiorari in two new cases for next term. In Servotronics, Inc. v. Rolls-Royce (No. 20-794), the Court will decide whether the discretion granted to district courts in 28 U.S.C. 1782(a) to render assistance in gathering evidence for use in a “foreign or international tribunal” encompasses private commercial arbitral tribunals abroad. And in United States v. Tsarnaev (No. 20-443), the Court will consider whether to reinstate the death penalty for Djokhar Tsarnaev, one of the Boston Marathon bombers, after the First Circuit threw it out. The Court will determine whether the First Circuit erred in concluding that the sentence must be vacated on the ground that the district court failed to ask each prospective juror for a specific accounting of the media coverage that he or she had seen about the case, and whether the district court committed reversible error by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years earlier.

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© 1998-2021 Wiggin and Dana LLPNational Law Review, Volume XI, Number 85
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Tadhg Dooley Appelate Attorney Wiggin Dana New Haven, CT
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Tadhg is a Partner in the firm’s Litigation Department, where his practice focuses on appellate and complex civil litigation. He has extensive experience handling appeals in state and federal courts throughout the country and has obtained favorable results for a diverse range of clients, from federal prisoners to foreign presidents, big companies to small towns. Among other recent successes, Tadhg helped a municipality overturn a $6.8 million verdict in the Connecticut Appellate Court, and helped a dental practice overturn a $3.7 million verdict in the Georgia Supreme Court. Tadhg has also...

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David is Counsel in Wiggin and Dana’s Litigation Department and a member of the firm’s Appellate, Art and Museum Law, and Intellectual Property Litigation practice groups. He has assisted insurers, universities, large companies, cultural institutions, and sovereign nations in a variety of complex civil litigation and appeals. Representative matters include trademark, copyright, and patent cases; insurance class-actions; art-ownership disputes; and high-stakes business litigation. David has also represented private individuals and companies in several criminal matters and...

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