Our associate Jennifer DiVincenzo recently wrote for the Academy of Truck Accident Attorneys Newsletter. Please see her article below:
The Triple Threat: Battling Personal Jurisdiction, Forum Non Conveniens and Choice of Law Motions
Often times, after filing what you think is a bulletproof Complaint, defense attorneys will file the “Triple Threat” of Motions: Lack of Personal Jurisdiction, Forum Non Conveniens and Choice of Law. While most of the time we know these motions are baseless, it is important that we always anticipate them coming our way. Under the lens of the Federal law and their Rules of Civil Procedure, we will look at each “threat” in turn.
Personal Jurisdiction
Personal Jurisdiction is governed by Federal Rule of Civil Procedure 12(b). Under this Rule, a defense of personal jurisdiction must be asserted before any other responsive pleading is filed. This is typically the first attack. As we know from law school, before a court can exercise power over a defendant, “minimum contacts” need to be established within the forum state. 1 This can be done through general or specific jurisdiction.
General jurisdiction occurs when the defendant is “at home” in the place of its domicile (i.e. if a person or business has a residence or headquarters in a state in which the action is filed). A Due Process analysis occurs under general jurisdiction, wherein a defendant’s contacts within a forum are so “continuous and systematic” as to render it essentially at home in the forum state. 2 This standard is rather stringent, as the United States Supreme Court even held that a company’s engagement in a substantial, continuous and systematic course of business is alone insufficient to render it at home in a forum. 3 Only in “exceptional cases” are foreign defendants considered at home in a forum state.4
This can be exemplified through the classic driver-and-company scenario. If your truck wreck happens in Florida, and the defendant-driver is from Florida, you have general jurisdiction over that driver. However, if the trucking company’s principal place of business is in Georgia, you will either have to obtain general jurisdiction through an “exceptional case,” or, obtain specific jurisdiction.
Specific jurisdiction brings in the minimum contacts test from International Shoe . Specific jurisdiction requires a showing that the defendant purposefully directed its activities at the forum state and the cause of action arose out of or relates to the defendant’s contacts with the forum state. 5 Under specific jurisdiction, a non-resident defendant may be subjected to a forum state’s jurisdiction based on certain ‘single or occasional acts’ in the state but only with respect to matters related to those acts. 6
Reasonableness is the last hurdle when it comes to overcoming the first attack on our Complaints. The five-part balancing test needs to be weighed in your analysis: (1) the burden on the defendant from litigating in the forum state; (2) the forum state’s interest in resolving the dispute; (3) the plaintiff’s interest in obtaining relief; and (4) the interests of the other attached forums in the judicial resolution of the dispute and advancement of substantive social policies. 7
There is another theory that can always be very helpful in a truck case. Recently, our law firm defeated a Motion to Dismiss for Lack of Personal Jurisdiction through the “Stream of Commerce” theory. This theory, held in a recent Illinois Court opinion, holds two schools of thought: narrow and broad. 8 The narrow approach looks towards whether the defendant “purposefully directed” its activities in the forum state, whereas the broad view considered whether a defendant knew or should have known that its products might ultimately be found in the forum state. 9
Our case (filed in Illinois) involved a Texas Plaintiff, a Mississippi-Defendant truck driver and a trucking company based in Illinois. The defense argued that the defendant-driver did not have specific personal jurisdiction in Illinois as he is not an Illinois resident, nor did the occurrence happen in Illinois. Under the stream of commerce theory, we used case law that held the defendant’s requisite minimum contacts was established through its employer’s relationship with other entities that do business in the forum state. As such, we analogized that the defendant-driver had the requisite minimum contacts through his employer, which was in Illinois.
The stream of commerce theory, while established recently in Illinois, is an incredibly valuable springboard in trucking cases across the country. Because we face Motions to Dismiss for Lack of Personal Jurisdiction so often, the stream of commerce theory could very well be precedent in states across the country to assist in an argument in favor of specific jurisdiction.
Forum Non Conveniens
The second attack (should you defeat the first threat) is the Forum Non Conveniens motion (FNC). FNC Motions trigger the Court to decide whether another forum is better suited to hear the case. The FNC analysis requires a two-part test: (1) a balancing test; and (2) adequate alternative inquiry.
The ‘balancing test’ weighs certain private and public factors, including, but not limited to the ease of access to evidence and witnesses, the imposed burdens on the parties, local interest to a jury hearing the case, and the choice of law analysis.10 Unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.11
The ‘adequate alternative inquiry test’ asks the defendant to offer another court that would be able to hear the case and show that the alternate court can provide a remedy to the plaintiff.
Again, your chosen forum should always be given deference. Your client should not be deprived of the presumed advantages of the home jurisdiction except upon a clear showing of facts which either (a) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff’s convenience; or (b) make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative or legal problems.12
Along with the defense’s FNC Motion, they will typically throw in a right-hook with a Venue argument. Under 28 U.S.C. 1391, an appropriate venue is based on where the defendants reside, where the transaction or occurrence took place, or wherever the defendant is subject to personal jurisdiction.
As such, you will notice that the arguments made in the response to a Personal Jurisdiction Motion will be very similar to the arguments made in an FNC Motion. While repetitive at times, it can be used in your favor, as it essentially falls under the court’s prior ruling on the issue. In these situations, we pose to the judge the following rhetorical question: this Honorable Court has already determined once that this forum was sufficient – why is the defendant seeming to “back door” their way into [insert other state] by way of clear disregard for this Court’s prior ruling?
In the case I mentioned above, our firm is currently awaiting a decision on the defendant’s FNC motion. They filed threat number two only days after their first motion was denied. Should our office prevail again (knock on wood), we anticipate threat three to come our way, as we are now finding in many of our trucking cases.
Choice of Law
If a defendant fails on personal jurisdiction and FNC, they will try their hand at getting the choice of law that they were gunning for otherwise. Choice of law motions are particularly complex because they rope in the all-famous Erie Doctrine.
The Erie Doctrine came from the Supreme Court case that required federal courts, when confronted with the issue of whether to apply federal or state law, to apply state law for substantive issues and federal law on procedural issues.13
Choice of Law is governed by the forum state in which the case was filed. In the Choice of Law analysis, it helps to lay out all possible forums to determine what each state sets forth as their Choice of Law rules.
For example, our office has a case in which the Plaintiffs are Virginia residents, but the trucking company is from Illinois and the truck driver is from Kentucky. The crash happened in Wisconsin. Thus, we needed to review each state’s Choice of Law rules. While Illinois, Kentucky and Wisconsin use the “most significant contacts” test, Virginia says that the place of injury is the governing law.
In working backwards, Virginia (the place of injury) says Wisconsin (most significant contacts) is the governing law. Wisconsin says the governing law is where the most contacts are. Thus, based on the facts and evidence, we can argue one forum over the other to ensure that our choice of venue and choice of law will prevail over the others.
While the analyses above are under the Federal Court context, each State maintains its own rules relative to Personal Jurisdiction, FNC and Choice of Law. Although each State typically follows the Federal Rule to a certain degree, it is imperative, prior to filing your truck case, that you study up on the State laws in order to be ahead of the game.
It’s clear the Triple Threat of motions are all intertwined. If we continue to anticipate these arguments well in advance, and consider all possible outcomes, we can be ahead of the curve when it comes to being faced with these motions. Truck law is already convoluted enough – why not make it easier on the back end by expecting these things to hit us head on?
Best of luck in battling the roulette of the Triple Threat!
1International Shoe v. Washington, 326 U.S. 310 (1945).
2Daimler AG v. Bauman, 571 U.S. 117 (2014)
3Id.
4Perkins v. Benguet Consolidated Mining Co. , 342 U.S. 437 (1952).
5Burger King Corp. v. Rudzewicz , 471 U.S. 472 (1985).
6Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. __, __, 131 S.Ct. at 2792, 2855 (2011).
7World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)
8Russell v. SNFA, 2013 IL 113909
9Id.
10Gulf Oil Corpora.on v. Gilbert, 330 U.S. 501 (1947).
11 Id.
12Kostner v. Limbermens Mutual Casualty Co., 330 U.S. 518 (1947).
13Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).