We get mail:
You mention in your “District of Columbia v. Beretta, U.S.A.” post that other commentators, such as Mr. Healy and Mr. Levy, have argued that individual states, not the federal government, should be initiating legislation preventing lawsuits against gun manufacturers. The idea is that businesses can “withdraw from doing business in a state that has an oppressive tort regime.” Your counter-argument, however, is that the latter idea “doesn’t help gun manufacturers who don’t do business in the District of Columbia to begin with.”
But, in fact, can’t businesses withdraw from states to the point where these businesses no longer have the “minimum contacts” necessary for the state courts to assert personal jurisdiction over the businesses? Then the businesses would be avoiding the oppressive tort laws of those states, but the states would not have personal jurisdiction for any lawsuits against these businesses.
Chris Schmitthenner
It is correct that gun manufacturers will, in litigation, attempt to get themselves out of the case by arguing lack of personal jurisdiction via such precedents as Asahi Metal Industry Co. Ltd. v. Superior Court of California. However, there are two separate issues that prevent Asahi from providing complete relief.
First, plaintiffs will argue that there are minimum contacts that suffice for personal jurisdiction. They’ll argue that the manufacturers placed ads in magazines that would be seen by residents of the state. They’ll argue purposeful availment under the same factual theories that underlie the “nuisance” claims in the Weinstein litigation. Cf. GTE New Media Services v. BellSouth Corp. (D.C. 2000) (plaintiff entitled to discovery whether defendant, while not physically present in District, intended for District residents to do business with it and caused injury within District); LaMarca v. Pak-Mor Mfg. Co. (N.Y. 2000) (distinguishing Asahi to find personal jurisdiction). In the case of the D.C. city council law, the manufacturers may even have problems to the extent they have lobbyists in the area. A particular judge may well decide that it’s a jury issue, and many manufacturers won’t want to take that risk.
Second, even if D.C. courts do not have personal jurisdiction over the manufacturer, little stops a D.C. plaintiff from suing a gun manufacturer in a state where there is personal jurisdiction. For example, in Peterson v. BASF, Minnesota state courts applied the New Jersey Consumer Fraud Act to a nationwide class; in Ysbrand v. DaimlerChrysler, Oklahoma state courts applied Michigan law. One can easily imagine a D.C. plaintiff and a well-funded attorney filing suit in Los Angeles County against a California manufacturer asking for application of D.C. law. I think, in such a circumstance, gun manufacturers have strong arguments under the principles behind Phillips Petroleum v. Shutts that, if D.C. has no personal jurisdiction over a defendant, choice-of-law principles cannot be used to apply D.C. law to the defendant in a manner consistent with due process. But the question, to my knowledge, has not yet been resolved definitively; the defendants in Peterson and Ysbrand certainly were within the personal jurisdiction of the forum whose law was applied. Cf. also the different case of Keeton v. Hustler Magazine, Inc., where a New York plaintiff was allowed to sue an Ohio/California defendant using New Hampshire courts and laws, solely for the purpose of taking advantage of a favorable statute of limitations.
In short, gun manufacturers have strong arguments for application of the Healy/Levy federalism theory should such a suit actually happen. But plaintiffs get to choose their forum, and a large part of forum-shopping is finding a forum where the courts are less likely to resolve issues of law in favor of the defendant. The advantage of an immunity law is that it removes that uncertainty.
I’ve opened comments on the narrow question of the interrelationship between personal jurisdiction and choice of law. Please keep discussion civil and limited to this issue.
6 Comments
Doesn’t the issue of sales over the Internet complicate this further? Internet point-of-sale systems do not generally have the ability to distinguish what state the buyer is in from the IP address or other information that can be obtained from the network protocols. It is true that when the system asks for a shipping address, it can reject zip codes in states where the seller desires not to do business.
However, even this isn’t foolproof. Renting mailboxes in another state in order to bypass sellers’ jurisdiction restrictions is an old tactic. For instance, from Huntsville, AL, I can rent a mailbox in Fayetteville, TN, about 30 minutes away, use it to take delivery of an Internet-ordered product, and bring it back into Alabama. If I subsequently sue the manufacturer, an Alabama court would probably hold that it has jurisdiction despite my subterfuge. And to make matters even worse: what about products and services that require no physical shipment, such as airline tickets, e-books, or computer software? In this case, the “good” purchased may consist entirely of data flowing over the Internet, and the seller has no idea whatsoever where the buyer is. (There is already a sort-of precedence for this: If I’m not badly mistaken, eBay has a worldwide ban on Nazi paraphenalia being sold through its system, because the technical ability to exclude bidders from France or Germany, where purchase of such paraphenalia is illegal, does not exist. Thus, eBay has to prohibit for Americans an activity that is perfectly legal in the USA.)
One of the things that called people’s attention in Phillips Petroleum v. Shutts is that the standard for choice of law seemed to be looser than the standard for personal jurisdiction. There was an article by Arthur Miller in Yale Law Journal mostly about the case, not long after it was handed down, if memory serves me, discussing this issue.
Arthur R. Miller and David Crump, “Jurisdiction and Choice of Law in Multistate Class Actions After Phillips Petroleum Co. v. Shutts,” 96 Yale L. J. 1 (1986).
I actually defended a gun case here on personal jurisdiction grounds. It involved a single-action revolver, made in the early 70s, by Uberti of Italy, for Iver Johnson here in the US.
I could prove that at the time of mfr (the relevant time), Uberti had no American presence, probably had never heard of Arizona. It made the guns in Italy for I-J, to its specs, and I-J took possession of them in Italy, then shipped them to its plant in New Jersey. How the gun came to be in Ariz. 30 yrs later is unknown: it could have been sold at retail in a different state. It clearly failed the Asahi plurality test (intentional availment of a State’s market) and likely failed the minority test (stream of commerce) as well since there was no showing of retail sale in Arizona.
Arizona Supreme Court nonetheless held that Arizona had jurisdiction. It essentially turned Asahi around, holding that it was enough that the mfr knew that the guns were going to the US, didn’t take measures to forbid the wholesaler to sell to AZ, and hence could sufficiently foresee that a gun delivered in Italy to a New Jersey company would, 30 yrs later, wind up in AZ and cause harm.
Personal jurisdiction
Overlawyered raises an interesting question regarding the DC gun liability suit: isn’t lack of personal jurisdiction over the manufacturer a defense? Personal jurisdiction amounts to — you can’t sue a person anywhere you want: in order to sue a person…
Personal jurisdiction
Overlawyered raises an interesting question regarding the DC gun liability suit: isn’t lack of personal jurisdiction over the manufacturer a defense? Personal jurisdiction amounts to — you can’t sue a person anywhere you want: in order to sue a person…