Hybrid Jurisdiction: New Approach to Personal Jurisdiction after Bristol-Myers, Exercises of Law

Download Hybrid Jurisdiction: New Approach to Personal Jurisdiction after Bristol-Myers and more Exercises Law in PDF only on Docsity! KLINGERCHRISTIANSEN_FORMATTED (DO NOT DELETE) 4/16/2020 7:31 PM 1145 THE NEXUS REQUIREMENT AFTER BRISTOL-MYERS: DOES “ARISE OUT OF OR RELATE TO” REQUIRE CAUSATION? Levi M. Klinger-Christiansen* I. INTRODUCTION In 2011, the Supreme Court took on the issue of minimum contacts personal jurisdiction for the first time since 1988. The two cases it heard, J. McIntyre Machinery v. Nicastro and Goodyear Dunlop Tires Operations, S.A. v. Brown, resulted in opinions limiting the scope of both specific and general jurisdiction.1 This trend of diminishing the Court’s minimum contacts jurisprudence has continued throughout the decade, leading to the Court’s 2017 opinion in Bristol-Myers Squibb Co. v. Superior Court of California.2 The Bristol-Myers opinion also marked a first. It served as the first time the Court analyzed the “nexus requirement” of specific jurisdiction since the Court recognized the difference between general and specific jurisdiction in Helicopteros De Colombia v. Hall over thirty years earlier.3 Specifically, the question of when a plaintiff’s claim, “arise[s] out of or relate[s] to the [defendant’s] activities in the forum state.”4 Bristol-Myers presented an opportunity for the Supreme Court to provide much needed clarification to the nexus requirement after the Court left the meaning of the nexus requirement rather unclear in Helicopteros. * J.D. Candidate, 2020, Seton Hall University School of Law; B.A, 2017, The College of New Jersey. I would like to thank Professor Denis McLaughlin for his insightful and careful guidance through the process of writing this Comment. Additionally, thank you Mom, George, and Jackie for your unconditional love and support. 1 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011). 2 Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). 3 Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 414 (1984). To assert specific jurisdiction a court must first find that the defendant had “certain minimum contacts with [the forum].” Id. (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). Second, the court must also find the “cause of action [to] arise out of or relate to [the defendant’s] activities in the forum state.” Id. Some courts and commenters use the term “nexus requirement” to refer to the second requirement; this Comment will borrow that language. See, e.g., Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 332 (D.C. 2000); Linda Sandstrom Simard, Meeting Expectations: Two Profiles for Specific Jurisdiction, 38 IND. L. REV. 343, 348 (2005). 4 Helicopteros, 466 U.S. at 414. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 1146 SETON HALL LAW REVIEW [Vol. 50:1145 As a result, courts and commenters have provided various interpretations of the nexus requirement’s meaning since Helicopteros. Ultimately, Bristol- Myers did not clarify every aspect of the nexus requirement’s meaning, leaving many competing interpretations untouched. On the other hand, despite the Court’s insistence that it decided Bristol-Myers on “settled principles of personal jurisdiction,” this Comment suggests that the opinion narrowed the understanding of what the nexus requirement means.5 This Comment argues that Bristol-Myers has largely narrowed the nexus requirement to require at-least but-for causation between the plaintiff’s claim and the defendant’s forum contacts in most situations;6 however, not in every situation. Language from Bristol-Myers creates space for a narrow circumstance in which a non-causal connection between the plaintiff’s claim and the defendant’s forum contacts may remain viable. This narrow circumstance falls directly in line with Professor Sandstrom Simard’s concept of “hybrid jurisdiction.”7 Furthermore, not only does this approach remain potentially viable, but the Court should also embrace it in the interest of fairness.8 Because an in-depth understanding of the nexus requirement is necessary to understand the implication of Bristol-Myers, Part II of this 5 Bristol-Myers, 137 S. Ct. at 1783. 6 But-for causation “is satisfied when the plaintiff’s claim would not have arisen in the absence of the defendant’s contacts” with the forum state. 16 Moore’s Federal Practice, § 108.42(7)(b) (Mathew Bender 3d Ed.). Courts have different approaches on what kind of causation between the defendant’s contacts and the plaintiff’s injury the Due Process Clause requires. See infra Sec. III. A and B. 7 Linda Sandstrom Simard, Hybrid Personal Jurisdiction: It’s Not General Jurisdiction, or Specific Jurisdiction, but is it Constitutional?, CASE W. RES. L. REV. 559 (1998). Professor Sandstrom Simard describes “hybrid jurisdiction” as a combination of the “requirements of general jurisdiction and specific jurisdiction without satisfying either type of jurisdiction completely,” though ultimately arguing that “hybrid jurisdiction may satisfy the underlying goals of specific jurisdiction and thus be constitutional.” Id. at 563. This Comment suggests that the Bristol-Myers opinion has further bolstered the argument for hybrid jurisdiction’s constitutionality. 8 On January 17, 2020, the United States Supreme Court granted petitions for certiorari on two State Supreme Court cases coming out of Minnesota and Montana. See Bandemer v. Ford Motor Co., 931 N.W.2d 744 (Minn. 2019), cert. granted, 2020 WL 254152 (U.S. Jan. 17, 2020) (No. 19-369); Ford Motor Co., v. Mont. Eighth Jud. Dist. Ct., 443 P.3d 407 (Mont. 2019), cert. granted, 2020 WL 254155 (U.S. Jan. 17, 2020) (No. 19- 368). The resolution of these two cases, Ford Motor Company v. Montana Eighth Judicial District Court and Bandemer v. Ford Motor Co., which the United States Supreme Court has consolidated into one case, will necessarily require answering the question posed by this Comment: does “arise out of or relate to” require causation? Significantly, both the Minnesota and Montana Supreme Courts, in their respective opinions, accepted the viability of a non-causal test for the nexus requirement, with both opinions generally tracking the function of hybrid jurisdiction. See Bandemer, 931 N.W.2d at 751–55; Ford, 443 P.3d at 414–17. Thus, the Supreme Court now has the opportunity to embrace hybrid jurisdiction as a valid test under the nexus requirement, which this Comment suggests would be a prudent decision. See infra Sec. V.B. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 2020] COMMENT 1149 defendant “sent prospective pilots to Fort Worth[, Texas] for training,” and the pilot who crashed the helicopter in question received his training in Texas.25 The families of the American citizens sued the foreign helicopter company in Texas state court.26 The Court used this case as an opportunity to adopt Professors Von Mehren and Trautman’s concepts of “specific” and “general” jurisdiction.27 The Court stated that “when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum, the State is exercising ‘specific jurisdiction’ over the defendant.”28 Conversely, the Court then explained that “when a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum, the State has been said to be exercising ‘general jurisdiction’ over the defendant.”29 With the adoption of Professors Von Mehren and Trautman’s framework, the nexus requirement officially entered the Court’s minimum contacts jurisprudence and serves as the second requirement for specific jurisdiction.30 The Court, however, did not go any further in attempting to clarify what the nexus requirement actually means; rather, “[b]ecause the parties [did not] argue[] any relationship between the cause of action and Helicol’s contacts with the State of Texas [the Court] assert[ed] no ‘view’ with respect to that issue.”31 The Court only considered “whether [Helicol’s contacts with Texas] constitut[ed] the kind of continuous and systematic general business contact” necessary to assert general jurisdiction, and ultimately held that Helicol’s contacts were not sufficient to assert general jurisdiction.32 Thus, the Court declined to answer: (1) whether the terms ‘arising out of’ and ‘related to’ describe different connections between a cause of action and a defendant’s contacts with a forum, and (2) what sort of tie between a cause of action and a defendant’s contacts with a forum is necessary to a determination that either connection 25 Id. at 411; id. at 426 (Brennan, J., dissenting). Helicol had other contacts with Texas including the purchasing of “helicopters (approximately 80% of its fleet), spare parts, and accessories for more than $4 million from Bell Helicopter Company in Fort Worth.” Id. at 411. 26 Helicopteros, 466 U.S. at 412. 27 Id. at 414 nn.8–9. 28 Id. at 414 n.8 (citing Von Mehren & Trautman, supra note 19, at 1144–64). 29 Id. at 414 n.9 (citing Von Mehren & Trautman, supra note 19, at 1144–64). 30 See id. at 414. 31 Id. at 415 n.10. Justice Brennan contested this finding. Id. at 425 n.3 (Brennan, J., dissenting) (“Nor do I agree with the Court that the respondents have conceded that their claims are not related to Helicol’s activities within the State of Texas.”). 32 Helicopteros, 466 U.S. at 416. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 1150 SETON HALL LAW REVIEW [Vol. 50:1145 exists.33 This Comment seeks to pose potential answers to both of those questions. Justice Brennan’s dissent, in which he argued that Texas could have asserted specific jurisdiction, provides a suitable starting point for this task.34 On the question of specific jurisdiction, Justice Brennan first took issue with the majority for not considering “any distinction between contacts that are ‘related to’ the underlying cause of action and contacts that ‘give rise’ to the underlying cause of action.”35 In distinguishing the two phrases, Justice Brennan agreed that the “cause of action did not formally ‘arise out of’ specific activities initiated by Helicol in the State of Texas.”36 Justice Brennan, however, argued that the “relate to” phrase could mean something much different. Though not defining the parameters of the phrase “relate to,” Justice Brennan’s application of the phrase to the facts of Helicopteros suggested he viewed the phrase as allowing specific jurisdiction when there is but-for causation between the plaintiff’s claim and the defendant’s contacts with the forum.37 This is so because Justice Brennan noted that the pilot involved in the crash acquired his training in Texas, Helicol negotiated the contract in Texas, and Helicol bought the particular helicopter involved in the Peru crash in Texas.38 From these contacts Justice Brennan argued “[t]his is simply not a case, therefore, in which a state court has asserted jurisdiction over a nonresident defendant on the basis of wholly unrelated contacts with the forum.”39 Unfortunately, aside from finding that the Helicol’s contacts in Texas did in fact “relate to” the cause of action, Justice Brennan did not further 33 Id. at 415 n.10. 34 Id. at 424 (Brennan, J., dissenting). 35 Id. at 425. 36 Id. Justice Brennan did not explicitly define what he meant for a “cause of action to formally ar[i]se out of the defendant’s contacts with the State,” but his criticism of limiting specific jurisdiction to such instances shed light on his formulation of the term. Id. He argued that “limiting specific jurisdiction of a forum” to causes of action that formally arise out of a defendant’s contacts with the forum “would subject constitutional standards under the Due Process Clause to the vagaries of the substantive law or pleading requirements of each State.” Id. In criticizing such a result, Justice Brennan noted that “if the respondents had simply added an allegation of negligence in the training provided for the Helicol pilot, then presumably the [majority] would [have] concede[d] that the specific jurisdiction of the Texas courts was applicable.” Id. at 427. 37 Id. at 425–26. 38 Helicopteros, 466 U.S. at 426. 39 Id. Justice Brennan also argued that the jury in the original Texas trial had “specifically found that ‘the pilot failed to keep the helicopter under proper control,’ [and] . . . that ‘such flying was negligence’ . . . .” Id. at 426 n.4. This further solidifies that Justice Brennan’s theory of “relate to” in this particular case was based on broad but-for causation. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 2020] COMMENT 1151 clarify or promulgate an operative test to define any parameters of how far a court can go in finding that a defendant’s contacts with a forum “relate to” the plaintiff’s injury. Therefore, while Justice Brennan’s dissent provided some analysis of the nexus requirement and a way of separating the requirement’s two key phrases, the dissent still left the nexus requirement extremely broad and unclear. The Court did not analyze the application of the nexus requirement again until Bristol-Myers.40 III. VARYING INTERPRETATIONS OF THE NEXUS REQUIREMENT The Supreme Court has never clarified what it means for a plaintiff’s claim to “arise out of or relate to” the defendant’s contacts with the forum State. As a result, lower courts and commenters have filled the void with varying interpretations of the nexus requirement. This Comment will use Justice Brennan’s separation of “arise out of” and “relate to” as a way of categorizing these different interpretations. Under Justice Brennan’s lens, most of these interpretations can be classified as an application of “relate to,” as opposed to “arise out of.” Hence, most of these interpretations allow a court to assert personal jurisdiction over a defendant even when an element of a claim does not formally “arise out of” the defendant’s contacts with the forum State as Justice Brennan’s articulation of “arise out of” requires.41 This expansion of “relate to” is largely in response to an issue Professor Richman aptly described: An issue that surfaces from time to time is whether jurisdiction is proper in a case that falls between these two paradigms [general and specific jurisdiction]: one where the defendant has substantial contacts with the forum, but not so many as to justify general jurisdiction, and where the plaintiff’s cause of action does not arise out of the defendant’s forum activities, although it is not totally unrelated to them.42 Courts and commenters have tackled this issue by applying various interpretations of what the nexus requirement can mean. This section discusses the three various interpretations of the nexus requirement, which include (A) the two causation approaches, (i) but-for causation and (ii) 40 To be sure, the Court did describe the nexus requirement in both Goodyear and Daimler AG v. Bauman. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923–24 (2011); Daimler AG v. Bauman, 571 U.S. 117, 127 (2014). Bristol-Myers, however, was the first time the Court’s holding required an application of the nexus requirement. See infra Sec. IV. 41 See Helicopteros, 466 U.S. at 424. Note that courts do not necessarily rely on Justice Brennan’s framework, often referring to “arise out of or relate to” as one standard. This Comment simply uses Justice Brennan’s framework as a useful guide and classification system. 42 William M. Richman, A Sliding Scale to Supplement the Distinction Between General and Specific Jurisdiction, 72 CALIF. L. REV. 1328, 1337 (1984). KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 1154 SETON HALL LAW REVIEW [Vol. 50:1145 formally arise out the defendant’s forum contacts.63 2. Proximate Causation In United Electric, Radio & Machine Workers v. 163 Pleasant St. Corp., the First Circuit articulated a more stringent interpretation of the nexus requirement under the label of proximate causation.64 The court noted that “we steadfastly reject the exercise of personal jurisdiction whenever the connection between the cause of action and the defendant’s forum-state contacts seems attenuated and indirect.”65 Rather, the First Circuit requires the defendant’s forum contacts to “form an ‘important, or [at least] material, element of proof’ in the plaintiff’s case.”66 Hence, the court has “suggested an analogy between the [nexus] requirement and the binary concept of causation in tort law under which both elements—[but- for causation] and legal cause (i.e., the defendant’s in-state conduct gave birth to the cause of action)—must be satisfied to find causation sufficient to support specific jurisdiction.”67 The federal district court of Massachusetts’s opinion in Rodriguez v. Samsung Electronics Co., provides a useful modern application of the proximate causation test articulated in United Electric.68 This case involved an employee of Axcelis Technologies, Inc. (“Axcelis-US”) who sued Samsung after he sustained permanent injuries when he traveled to Korea to install an ion implanter on Samsung premises.69 During discovery, Samsung indicated that, a separate company, Axcelis-Korea, supervised and directed the installation.70 Axcelis-Korea is a wholly- owned subsidiary of Axcelis-US with its principal place of business in Korea, providing sales and support services in both Korea and China.71 Plaintiff then amended his complaint to include Axcelis-Korea; the subsidiary filed a motion to dismiss for lack of personal jurisdiction.72 The district court interestingly began its analysis with the nexus requirement rather than the minimum contacts requirement.73 Applying the 63 See Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 425–27 (1984). 64 United Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992). 65 Id. 66 Id. (alteration in original) (quoting Marino v. Hyatt Corp., 793 F.2d 427, 430 (1st Cir. 1986)). 67 Id. 68 Rodriguez v. Samsung Elecs. Co., 827 F. Supp. 2d 47 (D. Mass. 2011). 69 Id. at 50. 70 Id. 71 Id. 72 Id. 73 Id. at 51. After finding that specific jurisdiction did not exist under the nexus KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 2020] COMMENT 1155 proximate causation test, the court first noted that “Axcelis-Korea’s in-state contract with Axcelis-US was surely a but-for cause of Rodriguez’s injury.”74 Nonetheless, the court found that proximate causation did not exist because the plaintiff’s “negligence claim sounds in tort, not contract, and it arose directly out of allegedly tortious conduct which occurred entirely in Korea.”75 Hence, Axcelis-Korea’s “limited contacts with Massachusetts [were] not . . . an important or material element of proof in plaintiffs’ case.”76 The proximate causation test is quite similar to Professor Brilmayer’s “substantive relevance” test.77 Professor Brilmayer’s test provides that, “[a] contact is related to the controversy if it is the geographical qualification of a fact relevant to the merits.”78 This means that a specific contact must be relevant to an element of the claim the plaintiff asserts.79 For example, had the contract in Rodriguez included a clause imposing a duty of reasonable care on Axcelis-Korea, the duty element of the negligence claim may have been sufficiently linked to the contract in Massachusetts and therefore allow for specific jurisdiction in the forum. Thus, the proximate causation test and the substantive relevance test fall under Justice Brenan’s definition of “arise out of,” as both require that a formal element of the claim arises out of the defendant’s contacts with the forum.80 requirement, the court then performed a minimum contacts analysis and found that Axcelis- Korea did not even have sufficient minimum contacts with Massachusetts. Id. at 52. This is interesting because typically courts analyze the minimum contacts requirement first, likely because it is often an easier inquiry. 74 Rodriguez, 827 F. Supp. 2d at 51 (“Had Axcelis-Korea not entered into a contract in Massachusetts with Axcelis-US to perform services in Korea, its managers would not have been present at Samsung’s facility to supervise the installation and Rodriguez would not have been injured as a result of their allegedly negligent acts or omissions.”). 75 Id. 76 Id. 77 Lea Brilmayer, How Contacts Count: Due Process Limitations on State Court Jurisdiction, 77 SUP. CT. REV. 77, 82 (1980). See also O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 318–19 (3d. Cir. 2007) (“The most restrictive standard is the ‘proximate cause’ or ‘substantive relevance’ test.”) (citing id.). Other commenters, however, disagree with this conflation. Charles W. Rhodes & Cassandra Burke Robertson, Toward a New Equilibrium in Personal Jurisdiction, 48 U.C. DAVIS. L. REV. 207, 237 (2014) (noting the “erroneous conflation of [substantive relevance] with the proximate cause approach adopted by some lower courts and commentators . . . .”). 78 Brilmayer, supra note 77, at 82. 79 Id. 80 O’Connor, 496 F.3d at 319 (“Justice Brennan, dissenting in Helicopteros, similarly described [proximate causation or substantive relevance] as a requirement that ‘the cause of action . . . formally “arise out of” the [defendant’s] contacts.’”) (quoting Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 426–27 (1984) (Brennan, J., dissenting)). KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 1156 SETON HALL LAW REVIEW [Vol. 50:1145 B. The Similarity Approach The similarity approach is the broadest possible reading of “relate to,” as it does not require a causal connection between the plaintiff’s claim and the defendant’s contacts at all.81 Though rejecting it outright, Professor Brilmayer explains that the similarity approach authorizes a forum to assert specific jurisdiction over a defendant for an injury that occurred outside the forum if there is a “similarity between the forum activity and the activity which gave rise to the controversy.”82 While none of the Courts of Appeals currently use a similarity approach,83 Professor Brilmayer pointed to an instance where the California Supreme Court seemed to do so.84 In Cornelison v. Chaney, the California Supreme Court upheld specific jurisdiction over a defendant truck driver who delivered goods into California approximately twenty times per year for an injury that the driver caused in Nevada while he was on his way to California.85 After finding that the truck driver had minimum contacts with California, but not enough to establish general jurisdiction,86 the court explained that its “inquiry is directed to whether plaintiff’s cause of action . . . arises out of or has a substantial connection with a business relationship defendant has purposefully established with California.”87 The court then held “[t]he accident arose out of the driving of a truck, the very activity which was the essential basis of defendant’s contacts with this state[,]” and then concluded that this created a “substantial connection” between the defendant’s forum contacts and the plaintiff’s cause of action.88 Shoppers Food Warehouse v. Moreno presents another example of the similarity approach. In this case, the District of Columbia Court of Appeals used what it called the “discernible relationship” test.89 The case 81 Brilmayer, supra note 77, at 83. 82 Id. 83 Bender, supra note 6. 84 Brilmayer, supra note 77, at 83. 85 Cornelison v. Chaney, 545 P.2d 264, 266 (Cal. 1976). 86 Id. at 267 (“In our view, these contacts are not sufficient to justify the exercise of jurisdiction over defendant without regard to whether plaintiff’s cause of action is relevant to California activity.”). 87 Id. (emphasis added). 88 Id. at 268. 89 Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 335 (D.C. 2000). This test is directly analogous to the “substantial connection” test used in Cornelison. Indeed, the District of Columbia Court of Appeals directly cited Cornelison, and then stated that under its discernable relationship test, “for the Superior Court to have jurisdiction over Ms. Moreno’s claim, the claim had to be related to or substantially connected with Shoppers’ advertising activity in the District.” Id. (emphasis added). I have labeled both these tests as the “similarity approach,” because both tests only seem to require “similarity between the KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 2020] COMMENT 1159 unfairness in allowing a court to assert personal jurisdiction in California.108 D. Hybrid Jurisdiction Professor Sandstrom Simard referred to “hybrid jurisdiction” as the grey area between general and specific jurisdiction.109 This Comment views Professor Sandstrom Simard’s concept of hybrid jurisdiction as an approach to the nexus requirement of specific jurisdiction under specific factual circumstances.110 When viewed as an interpretation of the nexus requirement, hybrid jurisdiction builds upon the similarity approach, as it does not require causation.111 Professor Sandstrom Simard characterized hybrid jurisdiction by relying on the following language found in a uniform long-arm statute: A court may exercise personal jurisdiction over a person, who acts directly or by an agent . . . causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state . . . .112 Professor Sandstrom Simard further added that the contacts with the state must be shown to possibly “result in factual circumstances similar to those that gave rise to the plaintiff’s claim.”113 The key difference between hybrid jurisdiction and the similarity approach is that, while hybrid jurisdiction allows for mere similarity to satisfy the nexus requirement, as opposed to causation between the defendant’s contacts with the forum and the plaintiff’s claim, the injury itself must occur in the forum.114 Thus, like 108 Id. 109 Sandstrom Simard, supra note 7, at 563 (“[Hybrid Jurisdiction] appears to combine the requirements of general jurisdiction and specific jurisdiction without satisfying either type of jurisdiction completely.”). 110 Indeed, Professor Sandstrom Simard ultimately found hybrid jurisdiction to be most reconcilable with specific jurisdiction. Id. (“The Article suggests that although hybrid jurisdiction does not satisfy the traditional test for specific jurisdiction requiring a claim to ‘arise out of’ the defendant’s purposeful contacts with the forum, some instances of hybrid jurisdiction may satisfy the underlying goals of specific jurisdiction and thus be constitutional.”). 111 Sandstrom Simard, supra note 7, at 588 (stating that in analyzing hybrid jurisdiction “we must consider whether the purposes and goals of specific jurisdiction can be satisfied in the absence of a causal relationship between the plaintiff’s claim and the defendant’s forum contacts”). 112 Sandstrom Simard, supra note 7, at 562 (quoting Unif. Interstate and Int’l Procedure Act § 1.03, 13 U.L.A. 361 (1962)). 113 Sandstrom Simard, supra note 7, at 589. 114 After Daimler AG v. Bauman (discussed below), Professors Rhodes and Robertson suggested a similar means of establishing specific jurisdiction. Rhodes and Robertson, KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 1160 SETON HALL LAW REVIEW [Vol. 50:1145 the similarity approach, hybrid jurisdiction falls under Justice Brennan’s category of “relate to” as opposed to “arise out of.” 115 Professor Sandstrom Simard pointed out that not many courts have explicitly adopted hybrid jurisdiction, but some have functionally used it.116 For example, in Vermeulen v. Renault, the Eleventh Circuit found specific jurisdiction in a factual situation implicating hybrid jurisdiction.117 In Vermeulen, the plaintiff bought a used Renault vehicle in North Carolina.118 She then moved to Georgia where she was involved in a car accident.119 Renault regularly sold cars in Georgia, though the plaintiff did not buy her specific vehicle there.120 The plaintiff sued Renault in Georgia.121 The federal district court dismissed the case for lack of personal jurisdiction; the supra note 77, at 240. Their proposal, however, relies on Professor Brilmayer’s substantive relevance. Rhodes and Robertson, supra note 77, at 237 (“Professor Brilmayer’s substantive relevance . . . is probably the best candidate.”). Rhodes and Robertson noted that substantive relevance asks whether “any of the factual occurrences that are conditions for the claim,” including “injury . . . arose from the defendant’s actions within or directed at the forum.” Id. Therefore, when the injury occurs in a state that the defendant has continuous and similar contacts with, that state can assert personal jurisdiction because an element of the claim, “injury,” arose out of the defendant’s contacts with the forum. Id. This ends in the same result as hybrid jurisdiction. Rhodes and Robertson’s proposal, however, used the word “arose,” which still seems to suggest that causation is needed, and thus creating tension within their proposal. This Comment argues that hybrid jurisdiction is a more sound way of reaching the same goal, considering causation is necessarily lacking in the situations where either approach would allow a court to assert specific jurisdiction. Additionally, Robertson and Rhodes’ proposal differs from hybrid jurisdiction in that they also suggest that their formulation of substantive relevance be expanded to also allow a court to assert jurisdiction in a forum the defendant has continuous contacts in and that the plaintiff resides in even though they were not injured in the forum. Rhodes and Robertson, supra note 77, at 242. (“[I]f the defendant is conducting extensive forum activities similar to the episode in dispute, and the suit implicates another sovereign state interest (such as providing a convenient forum for state citizens or protecting against harms suffered in the state), the relevant state interests will typically outweigh the minimal litigation burdens on the defendant.”). 115 Professor Sandstrom Simard indicated that hybrid jurisdiction fails the nexus requirement completely, stating that hybrid jurisdiction does not “require the plaintiff’s cause of action to arise out of (or even relate to) the defendant’s forum contacts.” Sandstrom Simard, supra note 7, at 575. Instead, Professor Sandstrom Simard argued that hybrid jurisdiction is constitutional, based on a functionalist argument that hybrid jurisdiction still achieves the constitutional rationales of specific jurisdiction, without necessarily fulfilling the formal nexus requirement. Sandstrom Simard, supra note 7, at 582–83. Under Justice Brennan’s framework, there is no indication that hybrid jurisdiction cannot fit into his sweeping definition of “relate-to.” Furthermore, as this comment later argues, hybrid jurisdiction likely fulfills the nexus requirement even under Bristol-Myers. Infra Sec. V. B. 116 See Sandstrom Simard, supra note 7, at 602, 608. 117 Sandstrom Simard, supra note 7, at 601–02. 118 Vermeulen v. Renault, U.S.A., Inc., 975 F.2d 746, 748 (11th Cir. 1992). 119 Id. 120 Id. at 748–50. 121 Id. at 747. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 2020] COMMENT 1161 Eleventh Circuit reversed.122 The Eleventh Circuit found that Renault’s contacts with Georgia were “sufficiently related to [the plaintiff’s] cause of action to confer specific jurisdiction” because its “activities . . . were inextricable links in the advertising and distribution network by which the [plaintiff] obtained her vehicle . . . .”123 As Professor Sandstrom Simard argued, the Eleventh Circuit attempted to show a causal connection in its “inextricable link” argument, when in reality there was “no evidence of a causal link between the defendant’s contacts with Georgia and the plaintiff’s cause of action.”124 Therefore, while the court attempted to shoehorn its analysis to fit a causal test, its analysis more properly fit the requirements of hybrid jurisdiction. Another factual scenario where a court implicitly applied hybrid jurisdiction, though labeled it as general jurisdiction, is in Lemke v. St. Margaret Hospital.125 In Lemke, Dr. U.H Patel, a surgeon, worked for St. Margaret—a hospital based in Indiana.126 The hospital regularly advertised in Illinois.127 Dr. Patel treated the plaintiff’s son, an Illinois resident, in the Indiana hospital.128 The record, however, did not reveal any evidence that the plaintiff’s son came to St. Margaret because of the advertisements in Illinois.129 The plaintiff’s son returned to Illinois and then died because of alleged malpractice by Dr. Patel.130 The plaintiff sued the hospital and Dr. Patel in Illinois state court, and the defendants removed to the United States District Court for the Northern District of Illinois.131 Here, the facts created a textbook hybrid jurisdiction situation, as the defendant caused tortious injury in Illinois “by an act or omission outside [a] state” in which the defendant “regularly [conducted] or solicit[ed] business.”132 The court, however, asserted personal jurisdiction over the hospital by finding that the hospital’s solicitations in Illinois constituted strong enough contacts to implicate general jurisdiction.133 122 Id. at 747–48. 123 Id. at 760. 124 Sandstrom Simard, supra note 7, at 602. 125 Lemke v. St. Margaret Hosp., 552 F. Supp. 833 (N.D. Ill. 1982). 126 Id. at 835. 127 Id. at 835–36. 128 Id. at 835. 129 Id. 130 Id. 131 Lemke, 552 F. Supp. at 835. 132 Sandstrom Simard, supra note 7, at 562 (quoting Unif. Interstate and Int’l Procedure Act § 1.03, 13 U.L.A. 361 (1962)). 133 Lemke, 552 F. Supp. at 838–39. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 1164 SETON HALL LAW REVIEW [Vol. 50:1145 general business contacts’ necessary to empower North Carolina to entertain suit against [petitioners] on claims unrelated” to the forum.151 Goodyear involved forum contacts by the defendants that constituted the kind of “continuous and systematic” general business contacts necessary to implicate general jurisdiction under prior case law.152 The Court’s language describing general jurisdiction in the early portion of the opinion, however, marked a potential narrowing of general jurisdiction. The majority explained that “[a] court may assert general jurisdiction over foreign (sister-state or foreign country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.”153 The Court cited to International Shoe for this proposition; however, International Shoe never used the words “essentially at home” to describe (what would become) general jurisdiction.154 The Court then elaborated that “[f]or an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home,” which can include the place of incorporation or the principal place of business.155 Hence, the case suggested a conflation between “domicile,” a distinct method of asserting personal jurisdiction,156 and general jurisdiction, a subset of the minimum contacts method of asserting personal jurisdiction. This framework has now been further entrenched in the Court’s jurisprudence, as the Court reaffirmed the requirement that a corporation be “essentially at home” in Daimler AG v. Bauman.157 151 Id. at 929. 152 See Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 416 (1984). 153 Goodyear, 564 U.S. at 919 (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 317 (1945)) (emphasis added). 154 Int’l Shoe Co. v. Wash., 326 U.S. 310, 318 (1945) (“there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.”). While the Goodyear Court’s “essentially at home” language is a logical extension of this, it certainly marked a narrowing. 155 Goodyear, 564 U.S at 924 (citing Lea Brilmayer et al., A General Look at General Jurisdiction, 66 TEX. L. REV. 723, 728 (1988)). 156 Milliken v. Meyer, 311 U.S. 457, 462 (1940) (“Domicile in the state is alone sufficient to bring an absent defendant within the reach of the state’s jurisdiction for purposes of a personal judgment . . . .”). 157 Daimler AG v. Bauman, 571 U.S. 117 (2014). In Daimler, the Court explained that “Goodyear did not hold that a corporation may be subject to general jurisdiction only in a forum where it is incorporated or has its principal place of business; it simply typed those places paradigm all-purpose forums.” Id. at 137. The Court, however, did not provide an example of when a court could assert general jurisdiction absent those examples, as it restated that the test for general jurisdiction is “not whether a foreign corporation’s in-forum KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 2020] COMMENT 1165 B. The Bristol-Myers Opinion 1. Facts of the Case Bristol-Myers Squibb (“BMS”) is a pharmaceutical company incorporated in Delaware, headquartered in New York, and with substantial operations in New Jersey.158 The company also operates in other states including California.159 At the time of Bristol-Myers, the company had five research labs and employed approximately 300 people in California.160 One of BMS’s most popular drugs is a blood thinner called Plavix.161 While BMS did not manufacture Plavix or develop marketing schemes for Plavix in California, it did sell a lot of Plavix there.162 Indeed, BMS sold approximately 187 million Plavix pills in California from 2006 through 2012.163 This represented over $900 million in sales, about one percent of BMS’s nationwide sales.164 Six hundred seventy-eight plaintiffs sued BMS in a mass tort action in California state court, alleging injuries linked to Plavix.165 Eighty-six of these plaintiffs were from California while the other 592 were from thirty- three other states.166 Asserting various tort claims under California law, “[t]he nonresident plaintiffs did not allege that they obtained Plavix through California physicians or from any other California source; nor did they claim that they were injured by Plavix or treated for their injuries in California.”167 2. Procedural History BMS moved for dismissal for lack of personal jurisdiction as to the nonresident claims.168 The California trial court denied this motion, finding that California could assert general jurisdiction over BMS because of its continuous business activity in the state.169 Hence, according to the California trial court, the claim did not have to relate to BMS’s activities in contacts can be said to be in some sense ‘continuous and systematic,’ it is whether that corporation’s ‘affiliations with the State are so “continuous and systematic” as to render [it] essentially at home in the forum State.’” Id. at 138–39 (citing Goodyear, 564 U.S. at 919). 158 Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1777–78 (2017). 159 Id. at 1778. 160 Id. 161 Id. at 1784 (Sotomayor, J., dissenting). 162 Id. 163 Id. 164 Bristol-Myers, 137 S. Ct. at 1778. 165 Id. 166 Id. 167 Id. 168 Id. 169 Id. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 1166 SETON HALL LAW REVIEW [Vol. 50:1145 California.170 The California court of appeals affirmed, but in response to the United States Supreme Court’s opinion in Daimler, which further limited general jurisdiction, the California Supreme Court reversed the court of appeals.171 Instead of vacating its order asserting personal jurisdiction over BMS, the court of appeals changed its opinion and found that specific jurisdiction existed over BMS as to the claims of the nonresident plaintiffs.172 The California Supreme Court affirmed this conclusion by using the sliding scale approach, finding that “‘BMS’s extensive contacts with California permitted the exercise of specific jurisdiction ‘based on a less direct connection between BMS’s forum activities and plaintiffs’ claims than might otherwise be required.’”173 3. The United States Supreme Court Opinion In an 8-1 opinion written by Justice Alito, the Supreme Court reversed the California Supreme Court.174 The Court began its analysis by describing the difference between general and specific jurisdiction.175 Here the Court once again reaffirmed the Goodyear framework for general jurisdiction.176 Then moving to specific jurisdiction the Court further explained: In order for a state court to exercise specific jurisdiction, ‘the suit’ must ‘aris[e] out of or relat[e] to the defendant’s contacts with the forum.’177 In other words, 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 and is therefore subject to the State’s regulation.’ For this reason, ‘specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.’178 170 See Bristol-Myers, 137 S. Ct. at 1778. 171 Id. 172 Id. 173 Id. at 1779 (quoting Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874, 889 (2016)). 174 Id. at 1777. 175 Id. at 1779–80. 176 Bristol-Myers, 137 S. Ct. at 1780 (“‘For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place . . . .’”) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011)). 177 Id. (quoting Daimler, 134 S. Ct., at 754 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)) (emphasis added by the Court in Bristol- Myers). 178 Id. (quoting Goodyear, 564 U.S. at 919). KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 2020] COMMENT 1169 explain, the opinion clearly stamped out the similarity approach as well as the sliding scale approach, at least as far as the sliding scale approach may be used to supplement the similarity approach. This Comment argues, however, that the opinion did not categorically reject a non-causal approach, as the opinion still likely left room for hybrid jurisdiction. A. The Sliding Scale Approach and Similarity Approach Though short of explicitly calling the sliding scale approach unconstitutional in all facets, the opinion clearly did not look favorably on the approach and certainly invalidated its use in a non-causal context.193 Indeed, some commenters have taken the opinion to mean that the sliding scale approach has been rejected outright.194 The opinion, however, still arguably leaves room for the implementation of the sliding scale, providing there is an “adequate link between the State and the nonresidents’ claims.”195 The Court appeared to only take issue with the sliding scale approach because it allowed the California Supreme Court to “f[i]nd that specific jurisdiction was present without identifying any adequate link . . . .”196 Hence, the opinion does not allow a court to use the sliding scale to create an “adequate link.”197 While the opinion did not define what an “adequate link” must consist of, the Court’s language immediately following its insistence on an “adequate link” provides some clarity. The Court pointed out that “the nonresidents were not prescribed Plavix in California [nor did they] purchase Plavix in California . . . .”198 This language potentially provides examples of what would have constituted a necessary “adequate link.” These examples provide factual scenarios where, under the but-for causation approach, a court would be able to assert “with a California company . . . to distribute [Plavix] nationally,” on evidentiary grounds. Id. at 1783. Had the Court found that BMS did in fact use a California company as a means of nationally distributing Plavix, and that a nonresident claimant was injured by a pill the California company distributed, then the opinion would have implicated the causation approaches. Had this been the case, the Court would have likely needed to decide whether the causal connection between BMS and the nonresident, through the California distributor, was strong enough to assert specific jurisdiction. The Court did not perform this type of analysis. Hence, the causation approaches are constitutionally unaffected by the opinion. 193 Id. at 1781. 194 Personal Jurisdiction, 30 APPELLATE ADVOCATE 9, 32 (2017) (“The United States Supreme Court reversed and . . . clearly rejected the sliding scale standard . . . .”). 195 Bristol-Myers, 137 S. Ct. at 1781 (emphasis added). The remainder of this Comment will use the term “adequate link” as a short hand for “an adequate link between the State and the nonresidents’ claims” or, alternatively stated, “a connection between the forum and the specific claims at issue.” Id. 196 Id. 197 If it did allow the sliding scale to create a connection between the claim and the forum, the Court would not have found that such a connection was missing. See id. 198 Id. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 1170 SETON HALL LAW REVIEW [Vol. 50:1145 personal jurisdiction.199 Therefore, one can speculate that a causal connection between the plaintiff’s claim and the forum would constitute an “adequate link.” This suggests that the sliding scale approach may remain viable as a supplement to the but-for causation approach. If perhaps the causal connection between the plaintiff’s claim and the forum is attenuated, but the defendant’s contacts with the forum are very strong, a court may use the sliding scale’s logic to find that the stronger contacts have the effect of allowing specific jurisdiction despite a relatively weak causal connection. Or conversely, if there is a weak causal connection and the defendant also has weak contacts with the forum, a court could slide the other way, finding that the connection is not adequate. Nonetheless, the opinion clearly rejects the sliding scale approach when used to supplement the similarity approach, considering that this is the exact way the California Supreme Court used the sliding scale approach.200 Therefore, the Court also necessarily rejected the pure similarity approach as a potential means of creating an “adequate link.”201 Without the similarity approach, the opinion only leaves the causation approaches, and potentially hybrid jurisdiction,202 as viable interpretations of the nexus requirement. Considering that hybrid jurisdiction, only operates under narrowly specified circumstances, Bristol-Myers has reasonably mandated that causation between the defendant’s forum contacts and the plaintiff’s claim must serve as the necessary “connection between the forum and the specific claims at issue” in the vast majority of cases.203 B. Hybrid Jurisdiction Though the Court has clearly disallowed similarity between the defendant’s continuous forum contacts and the defendant’s non-forum 199 See supra Sec. III. A. Had a nonresident plaintiff bought or been prescribed Plavix in California and then been injured anywhere in the world, under the but-for causation test espoused in Carnival Cruise, the nonresident would be able to sue BMS in California. Indeed, the facts would be analogous to Carnival Cruise in which the plaintiff entered a contract in the forum and then became injured as a result of that contract. Shute v. Carnival Cruise Lines, 897 F.2d 377, 379 (9th Cir. 1990). 200 Bristol-Myers, 137 S. Ct. at 1781 (“[T]he California Supreme Court’s ‘sliding scale approach’ is difficult to square with our precedents. . . . Our cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction.”). 201 Id. (Stating that a connection between the defendant and a “third party . . . is an insufficient basis for jurisdiction. . . . [And] [t]his remains true even when third parties (here, the plaintiffs who reside in California) can bring claims similar to those brought by the nonresidents.”) (emphasis added) (citation and internal quotations omitted). 202 The next section discusses this possibility in depth. 203 Bristol-Myers, 137 S. Ct. at 1781. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 2020] COMMENT 1171 contacts that caused the plaintiff’s claim to constitute an “adequate link,” the Court did not necessarily rule out hybrid jurisdiction. Significantly, Professor Sandstrom Simard’s formulation, while requiring similarity between the forum and non-forum contacts, requires an additional “connection between the forum and the specific claims at issue:”204 the injury must occur inside the forum.205 The facts that implicate hybrid jurisdiction are different from the factual situation in Bristol-Myers. Bristol-Myers could have implicated hybrid jurisdiction had a nonresident who bought Plavix in a state other than California, subsequently traveled to California where her injury then occurred. Everything else remains the same in that (1) BMS’s contacts with California did not cause the injury, (2) BMS has strong contacts with California, and (3) those contacts are similar or identical to the activities that caused the injury. The only key difference is that the injury occurs in California. By altering the facts in this way, Bristol-Myers would be directly analogous to the facts in Renault and Lemke, the two cases Professor Simard used to illustrate hybrid jurisdiction.206 While Bristol-Myers does not deal with this factual scenario, language in the opinion suggests that under this factual scenario specific jurisdiction would be valid despite a non-causal connection between the defendant’s forum contacts and the plaintiff’s claim. This language comes, once again, from the Court’s insistence on an “adequate link.”207 While this Comment has already argued that a causal connection between the defendant’s forum contacts and the plaintiff’s claim constitutes an “adequate link,” the opinion also left open the possibility that injury in the forum could create an “adequate link,” even without a causal connection between the defendant’s forum contacts and the plaintiff’s claim. First, in defining the nexus requirement, the Court stated that “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 . . . .”208 An injury in the forum would likely constitute an activity or occurrence in the forum. Furthermore, the opinion noticeably deviated from the standard definition of the nexus requirement. While the Court in Helicopteros defined the nexus requirement as fulfilled “in a suit arising out of or related to the defendant’s contacts with the forum,”209 the Bristol- Myers Court stated that the connection must be between the plaintiff’s 204 Id. 205 Sandstrom Simard, supra note 7, at 606. 206 Infra Sec. III. D. 207 Bristol-Myers, 137 S. Ct. at 1781. 208 Id. at 1780 (emphasis added). 209 Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 413 n.8 (1984). KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 1174 SETON HALL LAW REVIEW [Vol. 50:1145 proper.”225 The court further rejected Ford’s argument that Bristol-Myers compelled a causation approach.226 Specifically, the court distinguished the case from Bristol-Myers noting that the Court in Bristol-Myers “specifically mentioned the lack of injury to [the] plaintiffs in California, and concluded that ‘a connection between the forum and the specific claims at issue’ was ‘missing.’”227 The Minnesota Supreme Court took this language from Bristol-Myers to mean that a “plaintiff’s contacts are relevant to the analysis of the ‘affiliation between the forum and the underlying controversyFalse’”228 Thus, the court concluded that there was “a substantial connection between the defendant Ford, the forum Minnesota, and the claims brought by Bandemer,” despite the existence of a non-causal relationship between Ford’s contacts in Minnesota and Bandemer’s claim.229 The Bandemer opinion, tracked hybrid jurisdiction’s requirements and ultimately applied a functional version of hybrid jurisdiction. Significantly, the opinion reconciled this approach with Bristol-Myers. As the next section articulates, it would be unfair for a court to be unable to assert personal jurisdiction over a defendant in a case like Bandemer. Thus, the United States Supreme Court should affirm the Minnesota Supreme Court by embracing hybrid jurisdiction when it decides Bandemer. 225 Id. at 751–52 (internal quotations and insertions omitted). 226 Id. at 752–54. 227 Id. at 754 (quoting Bristol-Myers Squibb Co. v. Superior Ct., 137 S. Ct. 1773, 1781 (2017)). The Montana Supreme Court, in Ford Motor Co. v. Montana Eighth Judicial District Court, distinguished Bristol-Myers on the same basis. Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 443 P.3d 407, 417 (Mont. 2019). Ford, involved nearly identical material facts to Bandemer, as the case involved a 1996 Ford Explorer that crashed in Montana due to an alleged defect in the vehicle’s tires. Id. at 411. The specific Ford Explorer involved in the crash was not designed, manufactured, nor sold by Ford in Montana. Id. Instead, Ford originally sold the vehicle in Washington State, and the vehicle was eventually resold in Montana. Id. Similar to Bandemer, at the time of the crash, Ford otherwise did business in Montana. Id. at 414. Specifically, the company sold Ford Explorers to dealerships in Montana. Id. In deciding that Montana could validly assert specific jurisdiction over Ford, the Montana Supreme distinguished Bristol-Myers noting that the plaintiffs in Bristol-Myers “were not injured by Plavix in California,” while the plaintiff in Ford, “was injured while driving the Explorer in Montana.” Id. at 417 (quoting Bristol-Myers, 137 S. Ct. at 1781). Thus, the Montana Supreme Court held that Bristol- Myers did “not impact [the court’s] analysis regarding whether [the plaintiff’s] claims relate to Ford’s Montana contacts because [the plaintiff] was injured while driving the Explorer in Montana.” Id. Therefore, the Montana Supreme Court functionally applied hybrid jurisdiction. 228 Bandemer, 931 N.W.2d at 754 (quoting Bristol-Myers, 137 S. Ct. at 1781). 229 Id. at 755. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 2020] COMMENT 1175 VI. THE COURT SHOULD EMBRACE HYBRID JURISDICTION Having established that the possibility of hybrid jurisdiction remains viable, indeed the only viable means of asserting non-causal specific jurisdiction, this Comment now argues that embracing the approach would be a prudent decision. Without, this non-causal reading of “relate to,” patently unfair results could follow. This unfairness can be demonstrated by the result that would follow if a causation only approach is applied to the classic case World-Wide Volkswagen v. Woodson.230 In World-Wide, plaintiffs Harry and Kay Robinson bought an Audi vehicle from a car dealer in Massena, New York in 1976.231 The next year, the Robinsons left New York to live in Arizona.232 While the Robinsons were driving through Oklahoma on their way to Arizona, another car crashed into the Robinsons’ Audi vehicle.233 The crash caused a fire, which severely burned Kay Robinson and her two children.234 The question before the Court was whether Oklahoma could assert personal jurisdiction over the local car dealership in Massena and the regional car distributor.235 The Supreme Court ultimately said no, because the car only reached Oklahoma through the unilateral activity of the plaintiffs, and thus those defendants had no qualifying minimum contacts with Oklahoma.236 The Robinsons, however, also sued Audi, a German corporation, in Oklahoma, and Audi, did not contest jurisdiction.237 Had Audi challenged personal jurisdiction, under the post-Goodyear and Bristol-Myers landscape the only viable way to assert jurisdiction over Audi would be if courts embrace hybrid jurisdiction. Furthermore, it would be fundamentally unfair to shield Audi from suit in Oklahoma under such facts. Under modern personal jurisdiction jurisprudence, had Audi challenged personal jurisdiction, the only means of establishing personal jurisdiction over Audi under these facts would be through hybrid jurisdiction. Goodyear and Daimler heavily suggest that general jurisdiction over Audi would not be viable because Audi was not incorporated in Oklahoma, did not have its principal place of business in Oklahoma, and, similar to Daimler, Audi’s sale of cars in Oklahoma would 230 World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). 231 Id. at 288. 232 Id. 233 Id. 234 Id. 235 Id. at 295–96. 236 World-Wide, 444 U.S. at 295–96. 237 See id. at 288 n.3. KLINGER-CHRISTIANSEN(DO NOT DELETE) 4/16/2020 7:31 PM 1176 SETON HALL LAW REVIEW [Vol. 50:1145 not render the corporation “essentially at home” in Oklahoma.238 Hence, the only way to assert jurisdiction over Audi would be through specific jurisdiction. If this specific jurisdiction were subsequently limited to requiring causation between the defendant’s forum contacts and the plaintiff’s claim, jurisdiction would be lacking. There was no causal connection between Audi’s sales in Oklahoma and Robinson’s car accident. Because the Robinsons bought the car in New York, not Oklahoma, this would not even pass a but-for causation test. Thus, a non- causal test would be needed, and here the facts fit the requirements of the hybrid jurisdiction model on all fours. Indeed, Professor Sandstrom Simard used the facts of World-Wide in support of the assertion of hybrid jurisdiction.239 The facts of World Wide present the most compelling reason for adopting hybrid jurisdiction as an approach to the nexus requirement. Without it, unjust results would follow. It would be unfair to not hold Audi liable in Oklahoma where it regularly sells cars, benefits from the laws of the state, and can readily foresee lawsuits in the forum. Furthermore, to not do so would effectively protect companies like Audi from suit altogether. If, for instance, the Oklahoma court could not assert jurisdiction over Audi, the Robinsons would only be able to bring their claim in New York or Audi’s principal place of business, Germany. This would make it nearly impossible for the Robinsons to bring suit, when all of the accident and medical witnesses were in Oklahoma. The added expense of bringing these witnesses to New York could very well render a proceeding prohibitively expensive for many litigants. The most plausible counter-argument for rejecting the hybrid jurisdiction model is that, like all tests not based on causation, it presents risks of unfairness to the defendant and forum shopping.240 Any fear of forum shopping, however, can be dismissed in such a situation, because the injury itself happened in the forum. In other words, the “adequate link” of the injury occurring in the forum prevents an arbitrary choice of forum. 238 Daimler AG v. Bauman, 571 U.S. 117, 138–39 (2014) (stating that the test for general jurisdiction “is not whether a foreign corporation’s in-forum contacts can be said to be in some sense ‘continuous and systematic,’ it is whether that corporation’s ‘affiliations with the State are so “continuous and systematic” as to render [it] essentially at home in the forum State.’”(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). 239 Sandstrom Simard, supra note 7, at 600. This hypothetical has been the impetus for other commenters to suggest tests similar to hybrid jurisdiction. Indeed, Rhodes and Robertson relied on the facts of World-Wide to support their nexus requirement approach. Rhodes & Robertson, supra note 77, at 240–41. 240 Brilmayer, supra note 77, at 84 (“the similarity test would apparently have to allow jurisdiction in any State in the country where the defendant has engaged in similar activities . . . [this is] extremely elastic and lead[s] to dubious results.”).