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A171182scar Nostamp
A171182scar Nostamp
IN SUPREME COURT
Adam Bandemer,
Appellant,
INTRODUCTION ........................................................................................... 1
ARGUMENT .................................................................................................. 3
CONCLUSION ............................................................................................. 20
1
TABLE OF AUTHORITIES
Page(s)
CASES:
Daimler AG v. Bauman,
571 U.S. 117 (2014) ..................................................................... 14, 15, 16
11
TABLE OF ATHORITIES-Continued
Menken v. Emm,
503 F.3d 1050 (9th Cir. 2007) .................................................................. 19
Nevada v. Hicks,
533 U.S. 353 (2001) ................................................................................. 18
111
TABLE OF ATHORITIES-Continued
Walden v. Fiore,
571 U.S. 277 (2014) ......................................................................... 6, 7, 16
OTHER AUTHORITY:
IV
INTRODUCTION
argues at length that Ford has contacts with Minnesota and that specific
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
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
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
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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
Third, Bandemer asserts that his claims arise out of or relate to Ford's
designing the Crown Victoria, as Ford explained in its opening brief. Just
irresponsible.
his accident occurred here. That misreads the Supreme Court's cases, which
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
2
ARGUMENT
Bandemer leads with an argument that even the court of appeals did
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
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
in Minnesota, as the court of appeals recognized. See Ford Br. 9; Ford Add.
an uncontested issue.
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
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
distribution to retail sale." Asahi Metal Indus. Co. v. Superior Court, 480
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
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
in the forum state." Venuti v. Continental Motors, Inc., 414 P.3d 943, 951
simply does not supply specific jurisdiction where, as here, a product arrives
both Montgomery and Venuti at length in its opening brief. Ford Br. 10-12.
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
retail consumer). And when the court of appeals analyzed the "connection
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emphasized that the manufacturer's "connection with Minnesota is its sale of
hoses to" the retailer in Minnesota. Id. at 848. The integrator "in effect, was
There is nothing analogous here. Ford did not sell the Crown Victoria
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
this case.
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
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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
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
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
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.
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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
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
would remove the 'arising from or related to' requirement from the specific
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
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 explained that the non-causal link Rilley elucidated was a narrow
one. Opening Br. 19-21. Rilley suggested ads could create specific
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
9
Opening Br. 18-19. Ford explained all of this. Id. Yet Bandemer does not
and then arguing that they create a connection to his claims because they
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
involving a product that was not even in production at the time the plaintiffs
claims arose.
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,
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he would not have purchased his Crown Victoria. See supra p. 7 (further
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.
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
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
the connection requirement. 689 F.3d at 913. In fact, when Myers addressed
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
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
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Opening Br. 18-19. Myers is therefore no different than Bandemer' s
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.
Minnesota on his claims because they arise out of or relate to Ford's data
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
information from a certain database is a far cry from saying that Ford does
analyze information from that database, much less information from that
and analyzed data from Minnesota drivers when designing the subject
Crown Victoria." Bandemer Br. 16. Wrong again. Ford actually admitted
Bandemer's statement that Ford did use Minnesota data in designing the
Ford explained all of this in its opening brief. See Opening Br. 23-24. Yet
13
With Bandemer' s misrepresentations clarified, his jurisdictional
argument falls apart. At most, Ford may have used some information from
Ct. 1773, 1781 (2017) (research in the forum unrelated to the product at
issue cannot satisfy connection requirement.); see also Opening Br. 24.
and other Supreme Court cases support him, contending that there is a
because his accident occurred in the State. Bandemer Br. 17-19. Bandemer
Bandemer focuses on the fact that the plaintiffs whose claims were
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forum-even when a plaintiff "suffer[s]" there-when all of the defendant's
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
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
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
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
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));
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
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
16
to create specific jurisdiction. The Court should decline Bandemer' s
need not cause the plaintiffs claims. Bandemer Br. 23-26. The Court, of
course, need not reach that question. Even accepting Rilley as written,
But the Court should still consider whether to repudiate Rilley's dicta.
"arise out of or relate to" a defendant's forum contacts. Bandemer Br. 23-
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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
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 ofLegal Texts 177
a single Third Circuit decision cited in the opening brief. See Bandemer Br.
Id. (citing Myers, 689 F.3d at 912-913). It has, however, embraced a causal
forum. Myers, 689 F.3d at 913. But for the solicitations, there would be no
18
claims. See id. And most other courts have followed suit; a causal standard
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
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
Respectfully submitted,
October 5, 2018
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