October 5, 2018STATE OF MINNESOTA

IN SUPREME COURT

Adam Bandemer,

vs.

Ford Motor Company,

Eric Hanson, et al.,

Respondent,

Appellant,

Defendants.

APPELLATE COURT CASE NUMBER: Al 7-1182

TRIAL COURT CASE NUMBER: 77-CV-16-1025

APPELLANT FORD MOTOR COMPANY'S REPLY BRIEF

Michael R. Carey, #0388271 BOWMAN AND BROOKE LLP 150 S. Fifth St., Suite 3000 Minneapolis, Minnesota 55402 Telephone: (612) 339-8682

and

Sean Marotta (pro hac vice) HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004 Telephone: (202) 637-4881

Attorneys for Appellant

Kyle W. Farrar, #0397942 KASTER, LYNCH, FARRAR & BALL,LLP 1010 Lamar, Suite 1600 Houston, TX 77002 Telephone: (713) 221-8300

and

Steven D. Lastovich, #0146547 STEVEN D. LASTOVICH, LTD. 13073 Evergreen Drive PO Box2906 Baxter, MN 56425 Telephone: (218) 828-9670

Attorneys for Respondent

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................... ii

INTRODUCTION ........................................................................................... 1

ARGUMENT .................................................................................................. 3

I. THE STREAM-OF-COMMERCE METAPHOR DOES

NOT HELP BANDEMER HERE ....................................................... 3

II. BANDEMER'S CLAIMS Do NOT ARISE OUT OF OR

RELATE To FORD'S MINNESOTA MARKETING ............................. 9

III. BANDEMER'S CLAIMS Do NOT ARISE OUT OF OR

RELATE To FORD'S COLLECTION OF DATA FROM

MINNESOTA VEHICLES OR CONSUMERS .................................... 12

IV. SPECIFIC JURISDICTION Is NOT PROPER IN

MINNESOTA JUST BECAUSE BANDEMER'S

ACCIDENT HAPPENED To OCCUR HERE .................................... 14

V. THE COURT'S STATEMENTS IN RILLEY SUGGESTING

A NON-CAUSAL APPROACH To THE CONNECTION

REQUIREMENT Is AT ODDS WITH MOST OTHER

COURTS ..................................................................................... 17

CONCLUSION ............................................................................................. 20

1

TABLE OF AUTHORITIES

Page(s)

CASES:

Antonini v. Ford Motor Co., No. 3:16-CV-2021, 2017 WL 3633287 (M.D. Pa. Aug. 23, 2017) ............................................................... 7, 10, 11

Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987) ................................................................................... 4

Beydoun v. Wataniya Rests. Holding, Q.SC., 768 F.3d 499 (6th Cir. 2014) .................................................................... 19

Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) ................................................................. 14, 15, 16

Butler v. JLA Indus. Equip., Inc., 845 N.W.2d 834 (Minn. Ct. App. 2014) ........................................ 3, 4, 5, 6

D'Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94 (3d Cir. 2009) ......................................................................... 8

Daimler AG v. Bauman, 571 U.S. 117 (2014) ..................................................................... 14, 15, 16

Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008) ................................................................ 19

Goodyear Dunlop Tires Operations, SA. v. Brown, 564 U.S. 915 (2011) ................................................................. 8, 14, 16, 17

Harlow v. Children's Hosp., 432 F.3d 50 (1st Cir. 2005) ...................................................................... 19

Helicopteros Nacionales de Colombia, SA. v. Hall, 466 U.S. 408 (1984) ................................................................................. 16

Hinrichs v. General Motors of Canada, Ltd., 222 So. 3d 1114 (Ala. 2016) ...................................................................... 7

11

TABLE OF ATHORITIES-Continued

International Shoe Co. v. Washington, 326 U.S. 310 (1945) ................................................................................. 15

J McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011) ............................................................................... 4, 8

Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) ................................................................................. 16

Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453 (10th Cir. 1996) .................................................................... 7

Menken v. Emm, 503 F.3d 1050 (9th Cir. 2007) .................................................................. 19

Monge v. RG Petro-Mach. (Grp.) Co., 701 F.3d 598 (10th Cir. 2012) .................................................................... 7

Montgomery v. Airbus Helicopters, Inc., 414 P.3d 824 (Okla. 2018) ..................................................................... 4, 5

Myers v. Casino Queen, Inc., 689 F.3d 904 (8th Cir. 2012) ........................................................ 11, 18, 19

Nevada v. Hicks, 533 U.S. 353 (2001) ................................................................................. 18

0 'Connor v. Sandy Lane Hotel Co., 496 F.3d 312 (3d Cir. 2007) ................................................................. 7, 19

Rilley v. MoneyMutual, LLC, 884 N.W.2d 321 (Minn. 2016) .......................................................... passim

Robinson v. Harley-Davidson Motor Co., 316 P.3d 287 (Or. 2013) (en bane) ........................................................... 19

Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266 (5th Cir. 2006) ...................................................................... 4

111

TABLE OF ATHORITIES-Continued

Shute v. Carnival Cruise Lines, 783 P.2d 78 (Wash. 1989) ........................................................................ 19

State ex rel. Ford Motor Co. v. McGraw, 788 S.E.2d 319 (W. Va. 2016) ................................................................... 6

Tarver v. Ford Motor Co., No. CIV-16-548-D, 2016 WL 7077045 (W.D. Okla. Dec. 5, 2016) ......... 7

Tatro v. Manor Care, Inc., 625 N.E.2d 549 (Mass. 1994) .................................................................. 19

TMW Enters., Inc. v. Federal Ins. Co., 619 F.3d 574 (6th Cir. 2010) .................................................................... 18

uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421 (7th Cir. 2010) .................................................................... 19

United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) .................................................................... 18

Venuti v. Continental Motors, Inc., 414 P.3d 943 (Utah Ct. App. 2018) ........................................................... 5

Walden v. Fiore, 571 U.S. 277 (2014) ......................................................................... 6, 7, 16

Williams v. Lakeview Co., 13 P.3d 280 (Ariz. 2000) .......................................................................... 19

OTHER AUTHORITY:

Antonin Scalia & Bryan A. Gamer, Reading Law: The Interpretation of Legal Texts (2012) ........................................................ 18

IV

INTRODUCTION

Plaintiff Adam Bandemer's brief largely talks past Ford's. Bandemer

argues at length that Ford has contacts with Minnesota and that specific

jurisdiction over Ford in Minnesota would be constitutionally fair. But what

Bandemer spends relatively little time discussing is the issue at the center of

this case: whether his claims arise out of or relate to Ford's Minnesota

contacts. And what Bandemer has to say on that topic either misunderstands

the law, misunderstands the record, or both.

Distilled down, Bandemer makes essentially five arguments. First, he

contends that the "stream of commerce" somehow makes Ford liable in

Minnesota for a vehicle that it did not design, assemble, sell, or otherwise

have contact with in the State. But the stream of commerce focuses on the

flow of goods from a manufacturer and through its normal channels of

distribution into a forum. The metaphor has no application here, where Greg

Hanson's Crown Victoria was brought to Minnesota and sold to him by third

parties that Ford does not control.

Second, Bandemer argues that his claims arise out of or relate to

Ford's marketing in Minnesota. But Bandemer's marquee case, Rilley v.

MoneyMutual, LLC, 884 N.W.2d 321 (Minn. 2016), was an unusual

circumstance where the advertisement of the particular product in the forum

1

was the tortious act. Here, Bandemer cannot identify any advertisement for

the Crown Victoria near the time Greg Hanson purchased his vehicle and

Bandemer does not contend that any Ford marketing in Minnesota was

tortious in and of itself.

Third, Bandemer asserts that his claims arise out of or relate to Ford's

Minnesota data collection. He misrepresents the record. Ford did not

"admit" that it uses Minnesota data in evaluating safety concerns and in

designing the Crown Victoria, as Ford explained in its opening brief. Just

repeating that claim-without acknowledging Ford's debunking-is

irresponsible.

Fourth, Bandamer contends that U.S. Supreme Court case law

supports the view that specific jurisdiction is proper in Minnesota because

his accident occurred here. That misreads the Supreme Court's cases, which

have never so held. Bandamer's argument is without support.

Finally, Bandemer argues that Rilley's dicta rejecting a causal

connection standard is consistent with the Supreme Court's cases. The

Court need not pass on that question. Even under Rilley, Bandemer's claims

fail. But the Court should consider adopting a standard that requires the

defendant's Minnesota contacts to be a cause of the plaintiffs claims.

The Court should reverse.

2

ARGUMENT

I. THE STREAM-OF-COMMERCE METAPHOR DOES NOT HELP

BANDEMER HERE.

Bandemer leads with an argument that even the court of appeals did

not adopt: He says Ford is subject to specific jurisdiction in Minnesota

under the "stream-of-commerce" metaphor. See Bandemer Br. 4-10.

According to Bandemer, all that he need show is that Ford vehicles routinely

enter Minnesota and that his case arises from a Ford vehicle used inside the

State. Bandemer Br. 5, 10.

That is incorrect. As Bandemer' s own case states, "the regular flow

and course of sales of a nonresident defendant's products in the forum" can

demonstrate "[a] purposeful availment of the benefits and laws of a forum"

by the nonresident defendant. Butler v. JLA Indus. Equip., Inc., 845 N. W.2d

834, 846 (Minn. Ct. App. 2014) (emphasis added). But Ford has never

contested that it purposefully availed itself of the privilege of doing business

in Minnesota, as the court of appeals recognized. See Ford Br. 9; Ford Add.

4-5. Bandemer thus ends up focusing on a theory that bears-at most-on

an uncontested issue.

Attempting to tie the stream of commerce to the question whether his

claims are connected to Ford's Minnesota contacts, Bandemer argues that it

was enough that "this lawsuit arises from the use of a [Ford] vehicle in the

3

state." Bandemer Br. 10. Not so. As even Bandemer quotes (Br. 5), "[t]he

'stream of commerce' theory 'refers to the movement of goods from

manufacturers through distributors to consumers.'" Butler, 845 N.W.2d at

840 (quoting J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011)

(plurality op.)). Or, as Justice Brennan put it, the stream of commerce is

"the regular and anticipated flow of products from manufacture to

distribution to retail sale." Asahi Metal Indus. Co. v. Superior Court, 480

U.S. 102, 117 (1987) (Brennan, J., concurring).

Crucially, then, the stream of commerce ends with the product's first

retail sale. Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266,273 (5th

Cir. 2006). "Once a product has reached the end of the stream and is

purchased, a consumer's unilateral decision to take a product to a distant

state, without more, is insufficient to confer personal jurisdiction over the

manufacturer or distributor." Id.

As the Oklahoma Supreme Court has held, the Supreme Court's

recent cases reject a "totality of the contacts" approach to specific

jurisdiction, and a third person's "unilateral choice" to bring a product into

the forum "cannot serve as a basis for subjecting [a manufacturer] to suit" in

the forum-even under a stream-of-commerce theory. Montgomery v.

Airbus Helicopters, Inc., 414 P.3d 824, 833-834 (Okla. 2018). Or, as the

4

Utah Court of Appeals has explained, there is no specific jurisdiction under

the stream-of-commerce metaphor when a case "does not involve the

movement of manufactured goods through distribution channels to retail sale

in the forum state." Venuti v. Continental Motors, Inc., 414 P.3d 943, 951

(Utah Ct. App. 2018). In other words, the stream-of-commerce metaphor

simply does not supply specific jurisdiction where, as here, a product arrives

in a State "through a series of third-party sales." Id. at 950. Ford discussed

both Montgomery and Venuti at length in its opening brief. Ford Br. 10-12.

Bandemer does not even cite them.

Butler is consistent with this understanding of the stream of

commerce. In Butler, the defendant's hose was integrated into a pressure

washer. 845 N.W.2d at 838. The pressure washer was then sold to a

Minnesota company and the plaintiff was injured using the washer in

Minnesota. Id. at 837-838. The manufacturer's hose therefore entered

Minnesota through the manufacturer's normal chain of distribution-from it

to a finished-product integrator and then to a Minnesota retail consumer.

See id. at 83 8 (hose manufacturer sold 71 million feet of hose to integrator

and integrator sold 28,000 feet of manufacturer's hose to the Minnesota

retail consumer). And when the court of appeals analyzed the "connection

of the cause of action with [the hose manufacturer's] contacts," it

5

emphasized that the manufacturer's "connection with Minnesota is its sale of

hydraulic hoses to [the integrator] which, in tum, sold [the manufacturer's]

hoses to" the retailer in Minnesota. Id. at 848. The integrator "in effect, was

[the manufacturer's] distributor to Minnesota, directing a high volume of

hoses to this state." Id.

There is nothing analogous here. Ford did not sell the Crown Victoria

through a distributor to a Minnesota retail outlet, who sold it to a Minnesota

consumer. Rather, Ford sold the Crown Victoria to a North Dakota

franchised dealership, who sold it to a North Dakota resident. See Ford Add.

33 (15). Moreover, the previous owners of the Crown Victoria are not akin

to Ford's Minnesota distributor, such that the owners' sales of the vehicle in

Minnesota can be imputed to Ford. Butler simply has nothing to do with

this case.

Bandemer also relies on a West Virginia Supreme Court decision and

two unreported district court opinions. See Bandemer Br. 7-10. None of the

three are persuasive. The West Virginia decision, State ex rel. Ford Motor

Co. v. McGraw, 788 S.E.2d 319 (W. Va. 2016), has been expressly rejected

by the Alabama Supreme Court, which explained that it "fails to mention the

language in Walden v. Fiore that recognizes the requirement of suit-related

activity in cases spanning the spectrum of actions" and "omits any

6

discussion of the following language in Walden: 'And it is the defendant, not

the plaintiff or third parties, who must create contacts with the forum

State.' " Hinrichs v. General Motors of Canada, Ltd., 222 So. 3d 1114,

1157 (Ala. 2016) (per curiam) (quoting Walden v. Fiore, 571 U.S. 277,291

(2014)). The West Virginia Supreme Court of Appeals' decision is therefore

not "on point or persuasive." Id. at 1158.

The two unreported decisions are similarly unavailing. The

Oklahoma decision, Tarver v. Ford Motor Co., No. CIV-16-548-D, 2016

WL 7077045 (W.D. Okla. Dec. 5, 2016) is incorrect given that the Tenth

Circuit requires a causal link between a defendant's forum contacts and the

plaintiffs claims. Monge v. RG Petro-Mach. (Grp.) Co., 701 F.3d 598, 618

(10th Cir. 2012). Indeed, in identical circumstances-where a defendant

sold the same kind of product in the forum, but the particular product that

malfunctioned was sold elsewhere-the Tenth Circuit has held that specific

jurisdiction did not exist. Kuenzle v. HTM Sport-Und Freizeitgerate AG,

102 F.3d 453, 454-457 (10th Cir. 1996).

The Pennsylvania decision, Antonini v. Ford Motor Co., No. 3: l 6-

CV-2021, 2017 WL 3633287 (M.D. Pa. Aug. 23, 2017) is of dubious

correctness for the same reason. The Third Circuit, too, has a causal

connection requirement that Antonini did not take heed of. See O'Connor v.

7

Sandy Lane Hotel Co., 496 F.3d 312, 322-323 (3d Cir. 2007). And similar

to the Tenth Circuit, the Third Circuit has held that the stream-of-commerce

metaphor cannot create specific jurisdiction over an out-of-state

manufacturer where the manufacturer's product "reached [the forum] by a

series of fortuitous circumstances independent of any distribution channel

[the manufacturer] employed." D'Jamoos ex rel. Estate of Weingeroff v.

Pilatus Aircraft Ltd., 566 F.3d 94, 106 (3d Cir. 2009). In any event,

Bandemer' s contrary cases do not outweigh the holdings from around the

country dismissing similar claims against similarly situated defendants­

including Ford. Opening Br. 10-14 (collecting cases). The weight of

authority favors Ford.

Bandemer's expansive stream-of-commerce theory "impermissibly

would remove the 'arising from or related to' requirement from the specific

jurisdiction test and unjustifiably would treat the stream-of-commerce theory

as a source of general jurisdiction." D'Jamoos, 566 F.3d at 106. But "even

regularly occurring sales of a product in a State" like those Bandemer

alleges here "do not justify the exercise of jurisdiction over a claim unrelated

to those sales." Goodyear Dunlop Tires Operations, SA. v. Brown, 564 U.S.

915, 930 n.6 (2011); see also J. McIntyre, 564 U.S. at 882 (plurality op.) (the

8

stream of commerce "does not amend the general rule[s] of personal

jurisdiction"). The Court should reject it.

II. BANDEMER'S CLAIMS Do NOT ARISE OUT OF OR RELATE To FORD'S MINNESOTA MARKETING.

Bandemer further contends that his claims arise out of or relate to

Ford's Minnesota marketing activities. Relying on Rilley, Bandemer argues

that Ford's Minnesota marketing need not cause his claims so long as Ford's

Minnesota marketing has a connection with his claims. Bandemer Br. 10-11.

That portion of Rilley was dicta, as Ford has explained. See Opening Br. 33-

34. But even taking Rilley at face value, Bandemer's claims do not relate to

Ford's Minnesota contacts.

Ford explained that the non-causal link Rilley elucidated was a narrow

one. Opening Br. 19-21. Rilley suggested ads could create specific

jurisdiction over a defendant on a plaintiffs claims-even if the plaintiff did

not see the ads-when the ads themselves touted the product at issue and the

ads were tortious. Id. That is, when the ads for the product were the

"means by which" the defendant carried out its torts. Rilley, 884 N.W.2d at

337. But Ford's marketing here is not alleged to be tortious, and Bandemer

cannot even identify any Ford Crown Victoria ad in circulation at the time

Greg Hanson purchased his 1994 model-year Crown Victoria in 2013.

9

Opening Br. 18-19. Ford explained all of this. Id. Yet Bandemer does not

address Ford's analysis.

Bandemer argues that an even greater level of abstraction is

permissible, listing all of Ford's various marketing contacts with Minnesota

and then arguing that they create a connection to his claims because they

"solicited Minnesotans to purchase ... vehicles being sold by Ford."

Bandemer Br. 13. That is wrong twice over. For one, the Crown Victoria

here was not "sold by Ford." A third party that Ford had no relationship

with sold it. See Opening Br. 3-4. But more broadly, Bandemer cites no

authority suggesting that a defendant's generic promotion of its products in a

State is sufficient to create specific jurisdiction over a defendant on claims

involving a product that was not even in production at the time the plaintiffs

claims arose.

Bandemer purports to find support in an unreported district court case.

Bandemer Br. 14 (discussing Antonini, 2017 WL 3633287, at *3). The

plaintiff in Antonini, however, alleged that had she not seen Ford's

advertisements, she would not have purchased the Ford vehicle. Antonini,

2017 WL 3633287, at *3. Bandemer does not satisfy even that flawed

standard; he never alleges that had Greg Hanson not seen Ford advertising,

10

he would not have purchased his Crown Victoria. See supra p. 7 (further

explaining why Antonini was wrongly decided).

Beyond that, Bandemer argues that Ford "specifically targeted"

Minnesota with its marketing and goes on to list all of the Minnesota­

specific marketing he believes that Ford engaged in. Bandemer Br. 11-14.

But targeted advertising at most shows that the advertising is a "relevant

contact[] for the purpose of [the] minimum contacts analysis." Rilley, 884

N.W.2d at 335. It does not mean that any targeted marketing at Minnesota

suddenly makes all claims here fair game.

Myers v. Casino Queen, Inc., 689 F.3d 904 (8th Cir. 2012) is not to the

contrary. Cf Bandemer Br. 14. The portion of Myers that Bandemer quotes

is from its discussion of the reasonableness requirement, not its discussion of

the connection requirement. 689 F.3d at 913. In fact, when Myers addressed

the connection requirement, it found specific jurisdiction based on the causal

link between the defendant's advertising and the plaintiff's claims, not the

advertising standing alone. Id. at 908, 913. The plaintiff saw the ads and

chose to patronize the defendant as a result of them. Id. Here, by contrast,

Bandemer does not allege that Greg Hanson saw any Ford ads, much less

that those ads caused him to purchase his 1994 Crown Victoria. See

11

Opening Br. 18-19. Myers is therefore no different than Bandemer' s

unreported Pennsylvania district-court case.

The breadth of Bandemer' s marketing argument is breathtaking,

however. As a national company, Ford markets in every State. See Ford

Add. 19-20. If Ford marketing its products in a State is sufficient by itself

for specific jurisdiction over Bandemer's product-defect claims, Bandemer

could have brought his case literally anywhere in the United States. That

illogical result is not supported by Rilley or any other case. And it is not the

law.

III. BANDEMER'S CLAIMS Do NOT ARISE OUT OF OR RELATE To

FORD'S COLLECTION OF DATA FROM MINNESOTA VEHICLES OR

CONSUMERS.

Bandemer further argues that Ford is subject to specific jurisdiction in

Minnesota on his claims because they arise out of or relate to Ford's data

collection from Minnesota vehicles and consumers. Bandemer Br. 15-16.

But Bandemer' s argument misrepresents the record.

Bandemer contends that "Ford admitted that its Critical Concern

Review Group" makes safety decisions based on "vehicle data gathered

from Minnesota dealerships through Ford's Global Common Quality

Indicatory System," a Ford database. Bandemer Br. 15. No. What Ford

admitted was that its Critical Concern Review Group "may analyze a variety

12

of information which may or may not include information from" the Global

Common Quality Indicatory System. Bandemer Add. 40 ( emphases added).

That Ford may analyze a variety of information which may include

information from a certain database is a far cry from saying that Ford does

analyze information from that database, much less information from that

database contributed by Minnesota dealerships.

Bandemer further assertsthatihere is "no dispute that Ford collected­

and analyzed data from Minnesota drivers when designing the subject

Crown Victoria." Bandemer Br. 16. Wrong again. Ford actually admitted

that "it receives information regarding vehicle performance across the

United States, including in Minnesota, and that information may be used by

Ford as it considers future designs." Ford Add. 29 ( emphasis added).

Bandemer's statement that Ford did use Minnesota data in designing the

1994 model-year Crown Victoria is simply not accurate. Indeed, Ford's

design engineer swore-without contradiction-that the Crown Victoria's

airbag systems were designed in Michigan. Ford Add. 34 (,r 3).

Bandemer's argument on this score is particularly troubling because

Ford explained all of this in its opening brief. See Opening Br. 23-24. Yet

Bandemer does not even acknowledge Ford's explanation of the record,

much less try to refute it.

13

With Bandemer' s misrepresentations clarified, his jurisdictional

argument falls apart. At most, Ford may have used some information from

somewhere-possibly Minnesota-for some purposes. But none of it has to

do with Greg Hanson's 1994 model-year Crown Victoria, 1994 model-year

Crown Victorias generally, or any Crown Victoria at all. Such generalized

research cannot support specific jurisdiction over Ford in Minnesota on

Bandemer's claims. See Bristol-Myers Squibb Co. v. Superior Court, 137 S.

Ct. 1773, 1781 (2017) (research in the forum unrelated to the product at

issue cannot satisfy connection requirement.); see also Opening Br. 24.

IV. SPECIFIC JURISDICTION Is NOT PROPER IN MINNESOTA JUST

BECAUSE BANDEMER'S ACCIDENT HAPPENED To OCCUR HERE.

Bandemer makes the surprising argument that Bristol-Myers Squibb

and other Supreme Court cases support him, contending that there is a

sufficient connection between his claims and Ford's Minnesota contacts

because his accident occurred in the State. Bandemer Br. 1 7-19. Bandemer

misreads Bristol-Myers and overreads Daimler AG v. Bauman, 571 U.S. 117

(2014) and Goodyear.

Bandemer focuses on the fact that the plaintiffs whose claims were

dismissed in Bristol-Myers were not California residents and were not

injured there. Bandemer Br. 17-18. But Bandemer absolutely ignores

Bristol-Myers's statement that there is no specific jurisdiction over the

14

forum-even when a plaintiff "suffer[s]" there-when all of the defendant's

"relevant conduct" occurred elsewhere. 137 S. Ct. at 1781-82 (emphasis

omitted). And here, all of Ford's conduct relevant to Bandemer's claims­

designing, manufacturing, selling, and warrantying the Crown Victoria­

occurred outside of Minnesota. See Opening Br. 3-4. To be sure, the

personal-jurisdiction claims of the nonresident plaintiffs in Bristol-Myers

were "even weaker" because they did not live in California and did not

suffer harm there. 137 S. Ct. at 1782. But it does not change that allegedly

suffering foreseeable harm in Minnesota from Ford's actions elsewhere does

not add up to specific jurisdiction under Bristol-Myers. Id. at 1781-82.

Bandemer highlights Daimler's statement that specific jurisdiction

requires the court "to determine whether the connection between the forum

and the episode-in-suit could justify the exercise the specific jurisdiction."

571 U.S. at 139 n.20. But Bandemer is wrong to think that this stray

footnote statement (responding to an unrelated argument made by Justice

Sotomayor's separate opinion) somehow broadens specific jurisdiction. As

Daimler explains in text, the requisite connection is not between the forum

and the claims, but the defendant's forum contacts and the claims. Specific

jurisdiction is when the defendant's forum contacts "g[a]ve rise to the

liabilities sued on." Id. at 127 (quoting International Shoe Co. v.

15

Washington, 326 U.S. 310, 317 (1945)) (brackets in Daimler). And the rest

of the Supreme Court's cases concur. See, e.g., Walden, 571 U.S. at 284

( explaining that specific jurisdiction "focuses on 'the relationship among the

defendant, the forum, and the litigation' " and that "the defendant's suit­

related conduct must create a substantial connection with the forum State")

(quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984));

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414

( 1984) ( explaining that specific jurisdiction is when the "controversy is

related to or 'arises out of' a defendant's contacts with the forum").

Finally, Bandemer highlights Goodyear's statement that there was no

specific jurisdiction over the defendant in that case because "the episode-in­

suit, the bus accident, occurred" outside the forum and tries to tease out of it

the converse rule-that where an accident does occur in the forum, there is

specific jurisdiction over the defendant there. Bandemer Br. 18-19 ( quoting

Goodyear, 564 U.S. at 919). But nothing in Goodyear supports that leap of

logic. Instead, Goodyear is like Bristol-Myers. The specific-jurisdiction

issue in Goodyear was an easy one because the accident did not occur in the

forum. Cf Bristol-Myers, 137 S. Ct. at 1782. But that does not mean that an

accident occurring in the forum where a defendant has contacts is sufficient

16

to create specific jurisdiction. The Court should decline Bandemer' s

invitation to misread Goodyear.

V. THE COURT'S STATEMENTS IN RILLEY SUGGESTING A NON-CAUSAL

APPROACH To THE CONNECTION REQUIREMENT Is AT ODDS WITH

MOST OTHER COURTS.

Lastly, Bandemer argues that Rilley's dicta was correct in suggesting a

noncausal test for connection-that is, that a defendant's contacts in a State

need not cause the plaintiffs claims. Bandemer Br. 23-26. The Court, of

course, need not reach that question. Even accepting Rilley as written,

Bandemer's claims still do not arise out of or relate to Ford's Minnesota

contacts. See Opening Br. 17-24; supra pp. 9-10.

But the Court should still consider whether to repudiate Rilley's dicta.

As this case demonstrates, precisely what "relation" is sufficient for specific

jurisdiction to exist is hopelessly indeterminate, while causation is a test

well-established and well-understood in the law. Opening Br. 35-36. This

Court should therefore adopt a causal standard, either by repudiating its

dicta in Rilley or by limiting it to the specific, and unusual, circumstances

that the case addressed. See Opening Br. 17-20, 33-38.

Bandemer argues that a causal connection standard would override the

Supreme Court's statements that connection requires that a plaintiffs claims

"arise out of or relate to" a defendant's forum contacts. Bandemer Br. 23-

17

24. But Bandemer places too much weight on the disjunctive phrasing. The

Supreme Court's cases are "an opinion ... not a statute." Nevada v. Hicks,

533 U.S. 353,372 (2001). Not every word need have independent meaning.

See United States v. Skoien, 614 F.3d 638,640 (7th Cir. 2010) (en bane)

("Judicial opinions must not be confused with statutes .... "). Courts

"frequently say two ( or more) things when one will do or say two things as a

way of emphasizing one point": "cease and desist," "arbitrary and

capricious," "good faith and fair dealing." TMW Enters., Inc. v. Federal Ins.

Co., 619 F.3d 574, 578 (6th Cir. 2010) (Sutton, J.); see also Antonin Scalia

& Bryan A. Gamer, Reading Law: The Interpretation of Legal Texts 177

(2012) ("Doublets and triplets abound in legalese."). "Arise out of or relate

to" is the same.

Bandemer also argues that a causal standard is an outlier, focusing on

a single Third Circuit decision cited in the opening brief. See Bandemer Br.

24-25. But causation is the majority rule-including in the Eighth Circuit.

As Bandemer says, the Eighth Circuit rejected a proximate cause standard.

Id. (citing Myers, 689 F.3d at 912-913). It has, however, embraced a causal

standard, explaining that the requisite connection was present when a

plaintiff was injured after responding to the defendant's solicitations in the

forum. Myers, 689 F.3d at 913. But for the solicitations, there would be no

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claims. See id. And most other courts have followed suit; a causal standard

is the predominant rule in courts that have addressed the question. 1

Bandemer's argument that a causal standard is irreconcilable with the

Supreme Court's case law flies in the face of all of the decisions that have

held the opposite. This Court should consider following suit and adopting

an explicitly causal standard for personal jurisdiction's connection

requirement.

1 See, e.g., Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1079 (10th Cir. 2008); Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007); Williams v. Lakeview Co., 13 P.3d 280, 284-285 (Ariz. 2000) (en bane); Tatro v. Manor Care, Inc., 625 N.E.2d 549, 553 (Mass. 1994); Shute v. Carnival Cruise Lines, 783 P.2d 78, 81-82 (Wash. 1989) (en bane) (all adopting a but-for causal approach); see also, e.g., Beydoun v. Wataniya Rests. Holding, Q.S.C., 768 F.3d 499, 507-508 (6th Cir. 2014); uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421,430 (7th Cir. 2010); O'Connor, 496 F.3d at 323; Harlow v. Children's Hosp., 432 F.3d 50, 61 (1st Cir. 2005); Robinson v. Harley-Davidson Motor Co., 316 P.3d 287, 300 (Or. 2013) (en bane) ( all adopting causal tests that require but-for causation plus some additional connection between claims and contacts, akin to proximate cause).

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CONCLUSION

For the foregoing reasons and those in the opening brief, the court of

appeals' judgment should be reversed and the case remanded to the court of

appeals for further proceedings.

October 5, 2018

Respectfully submitted,

BOWMAN AND BROOKE LLP

/s/ Michael R. Carey Michael R. Carey(MN#0388271) 150 South Fifth Street, Suite 3000 Minneapolis, MN 55402 Tel: (612) 339-8682 Fax: (612) 672-3200 michael.carey@bowmanandbrooke.com

Sean Marotta (admitted pro hac vice) HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004 Tel: (202) 637-4881 Fax: (202) 637-5910 sean.marotta@hoganlovells.com

COUNSEL FOR APPELLANT FORD MOTOR COMPANY

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