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Editorial: Personal jurisdiction theories still evolving

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Federal Bar UpdateAs most litigators know, in Asahi Metal v. Superior Court of Cal., 480 U.S. 102 (1987), a plurality of the Supreme Court embraced the stream-of-commerce theory of personal jurisdiction, which generally holds that if a manufacturer or distributor has sufficient knowledge and control of its distribution system, it can be sued in a state in which its products cause injury. Since Asahi Metal, the theory has evolved somewhat in federal and state appellate courts but had not been revisited by the Supreme Court.

At the end of its recent term, the Supreme Court decided J. McIntyre Machiner v. Nicastro, No. 09-1343 (June 27, 2011), and by a 6-3 vote the court held that personal jurisdiction did not exist in this particular products-liability case. Unfortunately the court did not have a majority opinion on the applicable rule of law to be applied in these situations, with four justices proclaiming one rule, two another, and three yet another. What is certain is that for anyone with a personal jurisdiction battle, there is something for everyone in J. McIntyre, and the stream-of-commerce theory remains unsettled at best.

In the meantime, a brief summary follows. Plaintiff was injured in New Jersey using a metal-shearing machine manufactured by defendant in England, where the company is incorporated and based. Plaintiff sued in New Jersey, and the New Jersey Supreme Court held that personal jurisdiction existed under the Asahi stream-of-commerce concept.

The U.S. Supreme Court disagreed, reversing. Justice Anthony Kennedy, joined by the chief justice and Justices Antonin Scalia and Clarence Thomas, concluded that because defendant never engaged in any activities in New Jersey that revealed an intent to invoke or benefit from New Jersey’s laws, New Jersey was without power to adjudge the company’s rights and liabilities. This foursome reasoned that Asahi and stream-of-commerce metaphors do not change fundamental 14th Amendment due process standards for personal jurisdiction. The principal inquiry, they proclaimed, is whether defendant’s activities manifest an intention to submit to the power of a sovereign.

Justices Stephen Breyer and Samuel Alito agreed in a concurrence that personal jurisdiction did not exist, but found it unwise to announce a rule of broad applicability given that the case did not present issues arising from recent advances in commerce and communications. In dissent, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan would affirm the New Jersey Supreme Court’s ruling that personal jurisdiction existed.

7th Circuit rule change

Effective May 1, 7th Circuit Rule 25 was added requiring all documents to be electronically filed. 7th Circuit Rule 27 was added to address emergency filings. Finally, Circuit Rule 31(e) was rescinded. All 7th Circuit rules are available at www.ca7.uscourts.gov.

Mark your calendars

The annual Federal Civil Practice Seminar will be held Friday, Dec. 16, in Indianapolis.

Special call-out to help a family of the Bar

Jay Ruckelshaus, son of John Ruckelshaus of Baker & Daniels and grandson of long-time attorney Jack Ruckelshaus of Ruckelshaus Kautzman Blackwell Bemis & Hasbrook, was seriously injured recently in a diving accident. He has a severe spinal cord injury and is being treated at Methodist Hospital in Indianapolis. Jay is a remarkable young man who recently graduated as valedictorian of Cathedral High and was on his way to Duke as an Honors admittee.

Jay will face a long road ahead with many challenges, and likely uncovered expenses for some adaptive equipment and rehabilitation. At the request of Jay’s fellow graduates, the Joseph Maley Foundation is honored to dedicate its upcoming annual golf outing, Aug. 10 in Indianapolis, to celebrate Jay’s many accomplishments and provide support for Jay. For information, please see www.josephmaley.org.•

__________

John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.
 

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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