Jurisdiction Lacking:

Wright & Miller § 3522, p. 115 (noting that the actions of a party cannot vest a court with jurisdiction
outside of the constitutional and congressional grants of jurisdiction). See also 4. A federal court has the
obligation to determine jurisdiction on its own even if the parties do not raise the issue. All courts have
an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence
of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citing Ruhgras AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999)) (jurisdiction upheld).

Also see Wright & Miller § 3522, p. 126 (“Even if the parties remain silent, a federal court, whether trial
or appellate, is obliged to notice on its own motion its lack of subject matter jurisdiction, or the lower
court’s lack of subject matter jurisdiction when a case is on appeal.”). A litigant or the court can raise a
defect in jurisdiction at any time, even after a court has entered judgment.

Federal Rule 12(h)(3) states that, “[i]f the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). “The objection that a federal
court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any
stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. 500,
506 (2006) (citations omitted) (jurisdiction upheld); see also Kontrick v. Ryan, 540 U.S. 443, 455 (2004)
(“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the
subject matter, the court shall dismiss the action.”) (jurisdiction upheld). On appeal—even for the first
time at the Supreme Court—a party may attack jurisdiction after the entry of judgment in the district
court.

See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Even the party that had invoked the district court’s
jurisdiction can argue on appeal, to avoid an adverse judgment, that the district court lacked jurisdiction.
13 Wright & Miller § 3522, pp. 122–23 (“Indeed, the independent establishment of subject matter
jurisdiction is so

Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 682–83 (9th Cir. 2006) (citing Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir.1992)) (“In cases removed from state court, the removing defendant has
‘always’ borne the burden of establishing federal jurisdiction, including any applicable amount in
controversy requirement.”). • 13D Wright & Miller § 3522, pp. 103–05 (“[T]here is a presumption that a
federal court lacks subject matter jurisdiction, and the party seeking to invoke federal jurisdiction must
affirmatively allege the facts supporting it.”). See also 13D Wright & Miller § 3522, pp. 104–07 (“If these
facts are challenged, the burden is on the party claiming jurisdiction to prove that the court has
jurisdiction over the subject matter. . . . This showing must be made by a preponderance of the
evidence.”). 15 Moore’s Federal Practice ¶ 102.14 (citing McNutt v. Gen. Motors Acceptance Corp. of
Ind., Inc., 298 U.S. 178, 189 (1936) (“The burden of proving all jurisdictional facts is on the party
asserting jurisdiction.”)

The principles of waiver, consent, and estoppel do not apply to jurisdictional issues—the actions of the
litigants cannot vest a district court with jurisdiction above the limitations provided by the Constitution
and Congress. In Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982),
the Supreme Court noted that Subject-matter jurisdiction, then, is an Art. III as well as a statutory
requirement; it functions as a restriction on federal power, and contributes to the characterization of
the federal sovereign.

Subject-matter jurisdiction, then, is an Art. III as well as a statutory requirement; it functions as a

restriction on federal power, and contributes to the characterization of the federal sovereign. Certain
legal consequences directly follow from this. For example, no action of the parties can confer subject-
matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant, California v.
LaRue, 409 U. S. 109 (1972), principles of estoppel do not apply, Am. Fire & Casualty Co. v. Finn, 341 U.
S. 6, 17-18 (1951), and a party does not waive the requirement by failing to challenge jurisdiction early
in the proceedings.
Back to Basics: A Review of Recent SCOTUS Personal Jurisdiction Jurisprudence

25 JULY 2017 CONSUMER CLASS DEFENSE COUNSEL

As its term drew to a close, the Supreme Court handed down its latest decision on personal
jurisdiction in a case entitled Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco
Cty.[1] Over the last six years, the Supreme Court has issued six opinions clarifying the limits of
courts’ personal jurisdiction, each invalidating the exercise of jurisdiction. Given these major,
relatively fast-moving developments in such a fundamental area of the law, we thought a brief
overview would be helpful for companies to better understand where they can and cannot be
sued. This post will take each of the Court’s recent decisions in turn to give you the brass tacks
of what you should know about the holding and conclude with some thoughts about where the
Supreme Court might go from here.

1. Goodyear Dunlop Tires Operations, S.A. v. Brown[2]

In Goodyear, the Supreme Court addressed whether foreign subsidiaries of an Ohio parent
corporation were subject to general jurisdiction in North Carolina state court (the plaintiffs’
domicile) for a fatal automobile accident that occurred in Paris. All nine justices agreed that the
North Carolina courts lacked personal jurisdiction over corporate defendants in Turkey, France,
and Luxembourg under the Due Process Clause of the Fourteenth Amendment. Justice
Ginsburg’s opinion for the Court attempted to resolve confusion over the so-called “stream-of-
commerce” theory of personal jurisdiction discussed decades earlier in Asahi Metal Industry Co.
v. Superior Court of Cal., Salano Cty.[3] Chiding the North Carolina courts for failing to
distinguish between specific and general jurisdiction, the Supreme Court held the “[f]low of a
manufacturer’s products into the forum . . . may bolster an affiliation germane
to specific jurisdiction. . . But ties serving to bolster the exercise of specific jurisdiction do not
warrant a determination that, based on those ties, the forum
has general jurisdiction.”[4]Remember, general jurisdiction gives a court the ability to hear any
claim against a defendant, while specific jurisdiction only extends to claims that arise out of the
defendant’s contacts with the forum. The entire Court agreed in Goodyear that the stream-of-
commerce theory cannot serve as a basis for a state court’s exercise of general jurisdiction.

2. J. McIntyre Mach., Ltd. v. Nicastro[5]

On the same day that the Court rendered its decision in Goodyear, it also decided a case asking
whether a foreign manufacturer could be subject to specific jurisdiction arising out of products
sold within the forum by an independent distributor. Here, the Court was deeply divided. Justice
Kennedy, joined by Justices Roberts, Scalia, and Thomas, wrote an opinion cabining Asahi’s
stream-of-commerce theory and holding that the manufacturer had not engaged in “conduct
purposefully directed” at New Jersey by manufacturing – at most – four products that ultimately
reached New Jersey, focusing on the defendant’s lack of an “intent to invoke or benefit from the
protection of [New Jersey’s] laws.”[6]
Justice Breyer authored a concurrence, to which Justice Alito joined, expressing concerns about
the language used in Justice Kennedy’s opinion and its application to the modern economy, but
concurring in the result on the basis of the facts presented and earlier precedent. In dissent,
Justice Ginsburg (who had written the opinion for the Court in Goodyear) objected to the
plurality’s focus on a defendant’s consent to jurisdiction, instead arguing that the motivating
concepts should be “reason and fairness” and that the defendant’s decision to distribute products
in the United States made the exercise of specific jurisdiction reasonable.

3. Daimler AG v. Bauman[7]

Three years after Goodyear and J. McIntyre, the Court stepped in to decide whether foreign
nationals could sue a foreign parent corporation in California federal court based on the forum
contacts of a U.S. subsidiary under a general jurisdiction theory. Justice Ginsburg, writing for a
majority of eight justices, again stressed the limits of general jurisdiction. Based on federal due
process, the Court held that, to be a proper exercise of general jurisdiction over a foreign
corporation, the defendant’s contacts with the forum must not only be “in some sense
‘continuous and systematic’” but rather “so ‘continuous and systematic’ as to render it
essentially at home in the forum State.”[8] For practical purposes, the opinion limited general
jurisdiction over corporations almost exclusively to entities either incorporated within the forum
or with their principal place of business there. Importantly, the decision also instructed lower
courts to consider a corporation’s contacts with a forum in light of the entirety of their business,
stating that a “corporation that operates in many places can scarcely be deemed at home in all of
them.”[9]

4. Walden v. Fiore[10]

A month after Daimler, the Supreme Court returned to personal jurisdiction, this time in a case
involving only natural persons. The defendant in Walden was a Georgia police officer sued in
federal court in Nevada for confiscating a large amount of cash carried by two Nevada residents
in an airport on their travels back to Las Vegas. The Ninth Circuit had held that personal
jurisdiction was appropriate because the Georgia police officer was alleged to have “expressly
aimed” conduct at Nevada residents. Justice Thomas, delivering the opinion of the unanimous
court, ruled that such a standard was incompatible with its jurisprudence on specific jurisdiction
because it focused on the plaintiff’s connections with the forum, rather than the
defendant’s.[11] In addition, the opinion emphasized that the defendant’s contact must be with
the forum state itself, not merely with residents who reside within the forum, ruling that “the
plaintiff cannot be the only link between the defendant and the forum” and held that an injury to
a forum resident is not sufficient in itself to create personal jurisdiction.[12]

5. BNSF Ry. Co. v. Tyrrell[13]

Earlier this spring, Justice Ginsburg again addressed personal jurisdiction, writing an opinion for
eight of the nine justices, with Justice Sotomayor lodging a partial dissent. Tyrrell involved
employees’ Federal Employers’ Liability Act (FELA) claims brought in Montana state court: the
employees neither lived in Montana nor were injured there, and the employer was not
incorporated in Montana and did not have its principal place of business there either. The
decision reversed the Montana Supreme Court, which had held that the exercise of personal
jurisdiction was proper based on FELA’s statutory language. Justice Ginsburg explained that that
statutory provision at issue addressed venue and subject matter jurisdiction, not personal
jurisdiction, and reaffirmed Daimler’s central holding that general jurisdiction over a corporation
outside of its state of incorporation or principal place of business is proper only in an
“exceptional case.”[14] Tyrrell also clarified that the personal jurisdiction analysis does not vary
based on the type of claim asserted or the type of business enterprise sued.[15]

6. Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty.

The Supreme Court’s decision in Bristol-Myers emphasized the connection between the
plaintiff’s claim and the forum, rather than the defendant’s contacts with the forum. The claims
at issue belonged to non-California residents who joined a mass tort action in California against a
pharmaceutical manufacturer that was neither incorporated in California nor had its principal
place of business there. The Court, in an effort to maintain a firm distinction between general and
specific jurisdiction, rejected the California courts’ “sliding scale approach” (which purported to
lower the bar for specific jurisdiction as the defendant’s unrelated contacts with the forum
increased), calling it a “loose and spurious form of general jurisdiction.”[16] Instead, the Court
maintained that specific jurisdiction required “a connection between the forum and the specific
claims at issue;” a defendant’s unrelated contacts with a forum are irrelevant to the specific
jurisdiction analysis.[17] However, the Court expressly noted that its decision addressed the Due
Process limits applicable to state courts and left open the possibility that the rule might differ for
federal courts.[18]

7. Concluding Remarks

To recap, the Supreme Court has issued six decisions addressing personal jurisdiction since
2011. In all six, the Court has held that a forum’s exercise of jurisdiction over the defendant was
improper. The basic rules: general jurisdiction is strictly limited to where a defendant can be said
to be “at home” (e.g., state of incorporation and principal place of business) and specific
jurisdiction requires a direct connection between the plaintiff’s claim, the defendant’s conduct,
and the forum. This line of cases serves to limit plaintiffs’ ability to forum shop.

The Bristol-Myers decision is particularly notable for what it might portend about the viability of
nationwide class actions and how personal jurisdiction applies in that setting. If a particular state
cannot exercise personal jurisdiction over a defendant with respect to non-resident plaintiff’s
claims in a mass tort action, it is unclear how it could do so in a nationwide class action.
Furthermore, the Rules Enabling Act prevents Rule 23 from being used as an end run around
Due Process requirements. Indeed, the Bristol-Myers opinion reiterated the Court’s position that
each state’s individual sovereignty carries with it limits on a state’s ability to exercise control
beyond its borders. At a minimum, Bristol-Myers is a resource to which class action defense
lawyers will be able to refer courts to the extent those courts are contemplating the certification
of a national or regional classes under the laws of states where the parties are not residents or
have limited ties.

[1] No. 16-466, 2017 U.S. LEXIS 3873 (June 19, 2017).
[2] 564 U.S. 915 (2011).

[3] 480 U.S. 102 (1987).

[4] 564 U.S. at 927.

[5] 564 U.S. 873 (2011).

[6] Id. at 886-87.

[7] 134 S. Ct. 746 (2014).

[8] Id. at 761.

[9] Id. at 762 n.20.

[10] 134 S. Ct. 1115 (2014)

[11] Id. at 1124-25.

[12] Id. at 1122, 1125.

[13] No. 16-405, 198 L. Ed. 2d 36 (May 30, 2017).

[14] Id. at *43, 47.

[15] Id. at *47.

[16] Bristol-Myers, No. 16-466, slip op. at *14.

[17] Id. at *15.

[18] However, federal courts ordinarily follow state law to determine the bounds of their
personal jurisdiction, see Daimler, 134 S. Ct. at 753, and there is not an immediately-obvious
reason why specific jurisdiction would differ between the Fifth and Fourteenth Amendments’
Due Process Clauses
Connecticut Supreme Court Decides Not Too Late to Challenge Subject Matter
Jurisdiction; Plaintiff Failed to Plead Insurance Requirement

July 31, 2017

Contact the personal injury attorneys at Maya Murphy, P.C. today. We can help you get
the just compensation you deserve for your injuries or those of a loved one. For a free
initial consultation, call 203-221-3100 or email JMaya@Mayalaw.com.

In Machado v. Taylor, 326 Conn. 396 (2017), the Connecticut Supreme Court recently
ruled that delay or laches does not preclude a defendant from challenging subject
matter jurisdiction even if a motion to dismiss on that ground is brought at the close of
evidence after a trial. The claimant here sued the State of Connecticut arising out of a
motor vehicle accident under General Statutes § 52-556 which permits claimants to sue
the state when the government owns and insures a vehicle that a state employee
operates negligently—otherwise known as the waiver of sovereign immunity statute.
However, the plaintiff failed to plead in the complaint and failed to offer evidence at trial
that the state insured the vehicle even though the state admitted it self-insured the
vehicle in an interrogatory response during discovery. When the state made a motion to
dismiss for lack of subject matter jurisdiction due to plaintiff’s lack of establishing the
insurance element under the statute, the plaintiff’s opposition finally presented the
interrogatory response. The trial court sided with the plaintiff and the state appealed.
The Connecticut Supreme Court agreed with the state that the delay with respect to its
motion to dismiss was justifiable because subject matter jurisdiction can always be
raised, particularly since the plaintiff failed to properly plead and offer the required
elements to prove his case. The case was remanded back down the Superior Court for
further proceedings and findings regarding the state’s assertion of dismissal based on
lack of subject matter jurisdiction. This case is quite instructional in that if plaintiff’s do
not plead complaints properly and offer certain evidence at trial then claims can suffer
from being dismissed even in the last stages after a hearing on the substance.