Professor Scott Dodson is the rising star of his generation in civil procedure; he is one of two professors under the age of 55 who are among the top ten in the field in terms of frequency of citation. He has particularly distinguished himself in examining various aspects of the law of jurisdiction.
In a new article titled “Personal Jurisdiction and Aliens,” forthcoming in Michigan Law Review, he teams up with Professor Bill Dodge, a former UC Hastings faculty member and now a Reporter for the ongoing American Law Institute’s Restatement (Fourth) of Foreign Relations Law to address a topic at the heart of their scholarly interests—personal jurisdiction hurdles in U.S. courts for plaintiffs suing non-U.S. companies.
During the last decade or so, the due process limits on personal jurisdiction in U.S. courts have become stricter; indeed, one might call it the case of the “incredible shrinking jurisdiction.” Frankly, that followed a half century of what one might call “incredible expanding jurisdiction,” so there is room to favor an antidote to that prior condition.
Whatever one’s view on the general orientation of personal jurisdiction limits, it is clear that there can be instances in which those limits prevent American plaintiffs from suing in this country to recover for injuries they received at home because the defendant is not American.
An extreme example of this problem was presented in J. McIntyre Machinery, Ltd. v. Nicastro, a 2011 Supreme Court decision involving a New Jersey worker seriously injured at work by a machine manufactured by a UK manufacturer. The UK manufacturer had, several years before, embarked on a marketing campaign to sell its machines in the U.S. It appointed a U.S. distributor and, at considerable expense, sent its representatives to several trade fairs in this country. It did sell a number of machines in this country, but the overall effort seemingly was not a great success. The distributor went bankrupt.
One of the sales the UK manufacturer made was to the plaintiff’s employer in New Jersey, who bought the machine after talking to the manufacturer’s representatives at an industry fair in Las Vegas, which is how it came to be in the plant where plaintiff was injured. Plaintiff sued in a New Jersey state court, but the Supreme Court ruled that the court could not exercise jurisdiction over the manufacturer. As a consequence, there seems to be no place in this country in which plaintiff could sue the manufacturer. This ruling may mean that many plaintiffs will find it difficult or impossible to seek relief in this country for injuries sustained here.
In his plurality opinion for the Court, Justice Kennedy suggested that a federal court could constitutionally have exercised jurisdiction because the manufacturer surely did target the U.S., if its “national contacts” sufficed, but that New Jersey could not because the manufacturer did not specifically target that state.
Professor Dodson and Professor Dodge offer a relatively simple solution to the predicament that might otherwise befall American plaintiffs injured by products manufactured by foreign companies: with alien defendants, make jurisdiction turn on national contacts rather than contacts with a specific state. As they note, that would satisfy the fairness concerns of due process, and also avoid the federalism shoals that could arise if one state overreached to afford a remedy to one of its citizens against a company from another state.
As is often true with Professor Dodson’s writing, this article proposes a solution that seems obvious and causes the rest of us to say “Why didn’t I think of that?” Only time will tell whether it will be adopted. It goes in a different direction from the 2011 Supreme Court decision, but the restrictive plurality opinion in that case garnered only four votes on the Court. Perhaps this penetrating article will be the nudge needed to tip the balance in favor of American plaintiffs.