When does a defendant’s contact “give rise” to a claim?

For specific jurisdiction, when does a plaintiff’s claim “arise” from a defendant’s contact?

This looks to the relationship between the D’s contacts and the P’s claim. This connection — the D contacts “giving rise” to P’s claim — is a necessary element of the three-part specific jurisdiction analysis.

First, a claim only arises from contacts with the state

In Bristol-Myers Squibb Co. v. Superior Court of California (2017), over 600 plaintiffs filed suit in California state court against a drug manufacturer asserting state-law claims arising from injuries allegedly caused by the drug Plavix. Some of the plaintiffs were from California (86), but the vast majority (592) were not. The issue before the Court was whether a California court had PJ over claims by the 592 out-of-state plaintiffs. The majority (Alito, J.) said there was no PJ over the claims by out-of-state plaintiffs.

Here’s the rub: the drug Plavix was apparently distributed nationally, so the non-California plaintiffs were similarly situated to the California plaintiffs. However, the Court concluded that the 592 out-of-state plaintiffs’ claims did not arise from California contacts, but from alleged out-of-state contacts, even though the out-of-state contacts were virtually identical to the California contacts. As Justice Alito held, “In order for a court to exercise specific jurisdiction over a claim, there must be an ‘affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.'” (quoting Goodyear, 564 U. S., at 919) (emphasis added). In dissent, Justice Sotomayor argued that the Court narrowed the scope of specific jurisdiction “by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.”

The bottom line to you as a student? The only contacts that matter for the minimum contacts test are the in-state contacts. 

Second, analyze the relevant contacts.

Once you determine which in-state contacts matter, then you should run the two tests below in the alternative. This is because some courts use different tests. Yet other courts have not selected which test to use. Here are two approaches, though keep in mind that there are additional approaches beyond the two noted below. In an essay exam where specific jurisdiction is at issue, you should be ready to analyze the two tests below in the alternative.

Test 1: But-for test.

This test asks: but-for D’s contacts in the state, the claim would never have been asserted by P. Put differently, if the contacts did not occur, the claim would never have occurred either.

Test 2: Evidence test.

This test asks whether the D’s in-state contacts are themselves evidence that will be used by the parties in litigating the merits of the claim. I.e., the contacts are more than contacts, they are also evidence of the claim (whether it be fraud, negligence, or something else).

Hypo to illustrate the difference:

This hypo is based upon and expands on Prof. Glannon’s hypo on “giving rise” in his casebook.

D runs a resort in Alaska. D mails a brochure to P1, P2, and P3 in Florida promising a luxury resort. The brochure also says that “all foods served at our resort are peanut and gluten free.”

P1 reads the brochure and flies to the resort. When he gets to the resort, it is dirty and gross. P1 flies home to Florida and sues the Alaska resort in Florida state court for fraud.

P2 also reads the brochure and flies to the resort. When she gets to the resort, she slips on a banana peel and breaks her leg. P2 flies home to Florida and sues the Alaska resort in Florida state court for negligence.

P3 did not get the brochure before flying to the Alaska resort. However, P3 was already interested in going to Alaska and called his travel agent, who recommended D’s resort based on the travel agent’s previous visit to Alaska. P3 then flew to the Alaska resort. When he got there, he ate at the resort restaurant and suffered a horrible allergic reaction from peanut oil that the resort’s chef used in the food. When P3 got home, he finally received the brochure and was horrified to learn that the resort had incorrectly claimed that it did not use peanut oil. P3 filed a suit against the resort in Florida state court for breach of warranty.

Consider below whether D’s Florida contact (mailing the brochure to Florida) “gives rise” to the claims of P1, P2, and P3 under the “but for” and “evidence” tests.

Extra thanks to 1L Antonio Villa de Rey for suggesting ideas to me regarding the third column.

Revised Sept. 23, 2018 (adding Bristol-Myers)