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Supreme Court of the United States ______ No. 19-369 IN THE Supreme Court of the United States _________ FORD MOTOR COMPANY, Petitioner, v. ADAM BANDEMER, Respondent. _________ On Petition for a Writ of Certiorari to the Supreme Court of Minnesota _________ REPLY BRIEF IN SUPPORT OF CERTIORARI _________ NEAL KUMAR KATYAL SEAN MAROTTA Counsel of Record KIRTI DATLA ERIN R. CHAPMAN HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 [email protected] Counsel for Petitioner RULE 29.6 DISCLOSURE STATEMENT Ford Motor Company has no parent corporation and no publicly held company owns 10% or more of Ford Motor Company’s stock. (i) ii TABLE OF CONTENTS Page RULE 29.6 DISCLOSURE STATEMENT .................. i TABLE OF AUTHORITIES ....................................... iii INTRODUCTION ........................................................ 1 ARGUMENT ............................................................... 2 I. THE PETITION IMPLICATES A CLEAR SPLIT .................................................................. 2 II. THE PETITION OFFERS A CLEAN VEHICLE ............................................................. 7 III. THE DECISION BELOW WAS WRONG ................ 10 CONCLUSION .......................................................... 13 iii TABLE OF AUTHORITIES Page CASES: Aker Biomarine Antarctic AS v. Huynh, 139 S. Ct. 64 (2018) .............................................. 10 Antonini v. Ford Motor Co., No. 3:16-CV-2021, 2017 WL 3633287 (M.D. Pa. Aug. 23, 2017) ........................................ 4 Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773 (2017) .............................. 10, 11, 12 Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273 (4th Cir. 2009) .............................. 3, 4 C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59 (1st Cir. 2014) .................................... 3 D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94 (3d Cir. 2009) ..................................... 7 Downing v. Goldman Phipps, PLLC, 764 F.3d 906 (8th Cir. 2014) .................................. 3 Ex parte Int’l Creative Mgmt. Partners, LLC, 258 So. 3d 1111 (Ala. 2018) ................................... 6 Ex parte Maint. Grp., Inc., 261 So. 3d 337 (Ala. 2017) ..................................... 6 Exxon Mobil Corp. v. Healey, 139 S. Ct. 794 (2019) ............................................ 10 GlaxoSmithKline LLC v. M.M. ex rel. Mey- ers, 138 S. Ct. 64 (2017) .............................................. 10 iv TABLE OF AUTHORITIES—Continued Page Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) .................................... 6, 11, 12 Griffin v. Ford Motor Co., No. A-17-CA-00442-SS, 2017 WL 3841890 (W.D. Tex. Sept. 1, 2017) ........................ 5 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) .......................................... 2, 11 Hinrichs v. General Motors of Canada, Ltd., 137 S. Ct. 2291 (2017) .......................................... 10 Hinrichs v. General Motors of Canada, Ltd., 222 So. 3d 1114 (Ala. 2016) ................................... 6 In re Chinese-Manufactured Drywall Prods. Liab. Litig., 753 F.3d 521 (5th Cir. 2014) .................................. 4 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011) ................................................ 8 Kuenzle v. HTM Sport-Und Freizeitgeräte AG, 102 F.3d 453 (10th Cir. 1996) ................................ 7 McWilliams v. Dunn, 137 S. Ct. 1790 (2017) ............................................ 8 MoneyMutual LLC v. Rilley, 137 S. Ct. 1331 (2017) .......................................... 10 Montgomery v. Airbus Helicopters, Inc., 414 P.3d 824 (Okla. 2018) ...................................... 7 v TABLE OF AUTHORITIES—Continued Page Moore v. Club Car, LLC, No. 4:16-CV-00581-RBH, 2017 WL 930173 (D.S.C. Mar. 9, 2017)................................. 4 Rhodehouse v. Ford Motor Co., No. 2:16-cv-01892-JAM-CMK, 2016 WL 7104238 (E.D. Cal. Dec. 5, 2016) ........................... 5 Robinson v. Harley-Davidson Motor Co., 316 P.3d 287 (Or. 2013) ......................................... 3 Rush v. Savchuk, 444 U.S. 320 (1980) .............................................. 12 Salgado-Santiago v. American Baler Co., 394 F. Supp. 2d 394 (D.P.R. 2005) ........................ 4 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) ................................... 4, 5 Tatro v. Manor Care, Inc., 625 N.E.2d 549 (Mass. 1994) ................................. 4 TV Azteca, S.A.B. de C.V. v. Ruiz, 137 S. Ct. 2290 (2017) .......................................... 10 Waite v. All Acquisition Corp., 901 F.3d 1307 (11th Cir. 2018) ............................ 10 Waite v. Union Carbide Corp., 139 S. Ct. 1384 (2019) .......................................... 10 Walden v. Fiore, 571 U.S. 277 (2014) .................................... 6, 11, 12 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) .................................. 10, 11, 12 vi TABLE OF AUTHORITIES—Continued Page OTHER AUTHORITY: Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ......................................... 7 IN THE Supreme Court of the United States _________ No. 19-369 _________ FORD MOTOR COMPANY, Petitioner, v. ADAM BANDEMER, Respondent. _________ On Petition for a Writ of Certiorari to the Supreme Court of Minnesota _________ REPLY BRIEF IN SUPPORT OF CERTIORARI _________ INTRODUCTION The stakes in this case for manufacturers are high. As the Alliance of Automobile Manufacturers ex- plains (at 12), the Minnesota Supreme Court’s ex- pansive view of the arise-out-of-or-relate-to require- ment means that manufacturers “can be haled into a forum in which they do not reside based on the unilateral decisions of” third parties. That, in turn, “mak[es] it impossible for corporations to structure their affairs to limit the number of jurisdictions in which they can be sued.” U.S. Chamber of Com- merce et al. Amicus Br. 16–17. The Minnesota Supreme Court aligned itself with a growing minority of jurisdictions that hold that (1) 2 specific personal jurisdiction is proper even if the defendant’s forum contacts did not cause the plain- tiff’s claims. By contrast, the majority of federal and state courts require at least some causal connection between a plaintiff’s claims and a defendant’s forum contacts. This petition is an ideal vehicle to resolve this con- flict. Ford did not contest the other two prongs of the tripartite specific-jurisdiction test, and the motion- to-dismiss posture guarantees undisputed facts. Not only that, but courts across the country regularly confront the question presented on similar facts, highlighting the need for this Court’s guidance. The petition should be granted. ARGUMENT I. THE PETITION IMPLICATES A CLEAR SPLIT. 1. A plaintiff’s “cause of action” must “arise out of or relate to the foreign corporation’s activities in the forum State” before a court can exercise specific personal jurisdiction consistent with due process. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Federal courts of appeal and state supreme courts have settled on four different approaches to this requirement. A minority holds that a defendant’s forum contacts need not have caused the plaintiff’s claims, so long as the contacts relate in some unspec- ified sense to the subject of the plaintiff’s claims. See Pet. 12–14. Six courts require that a defendant’s forum contacts have been the but-for cause of a plaintiff’s claims. See id. at 14–15. Eight require a stronger causal connection, akin to proximate cause. See id. at 15–17. And four more agree that some 3 causal connection is required, without adopting a clear standard. See id. at 17–18. And not only are courts in conflict, they are asking for clarification. See, e.g., Robinson v. Harley-Davidson Motor Co., 316 P.3d 287, 300 (Or. 2013). 2. Bandemer does not deny the split. He instead tries to move five of the 24 pieces around the board. His quibbles are wrong and beside the point. Bandemer suggests that the First Circuit belongs in the no-causation camp because it requires only a “demonstrable nexus” between the claim and con- tacts. Opp. 13–14 (internal quotation marks omit- ted). But the court requires “the litigation itself” to be “founded directly on those activities,” which it evaluates “with reference to the contacts the defend- ant creates with the forum.” C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 66 (1st Cir. 2014) (emphasis added and citation omitted). That is proximate cause. Bandemer would likewise place the Eighth Circuit in the no-causation camp. He relies (at 14) on a decision that uses the phrase “relating to.” But the case expressly found a causal connection. See Down- ing v. Goldman Phipps, PLLC, 764 F.3d 906, 913 (8th Cir. 2014) (“[D]efendants voluntarily went to Missouri” where they earned “the fees that are the subject matter of the current dispute.”). Bandemer further contends (at 14) that the Fourth Circuit has not spoken. Yet that court “requires that the defendant’s contacts with the forum state form the basis of the suit.” Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 278–279 (4th Cir. 2009). Bandemer calls this dicta. But the Fourth Circuit concluded that the plaintiff had “failed to 4 demonstrate” that the “causes of action it assert[ed] * * * ‘arose from’
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