One Less Arrow in Defense Counsel’s Quiver: Personal Jurisdiction in the First Circuit After Ford Motor Company

Did the United States Supreme Court upend specific jurisdiction in Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021)? Not quite. But the Court did rule for the first time that due process does not require a causal link between the defendant’s activities in the forum and the alleged injury to the plaintiff. This case calls into question decades of precedent in the U.S. Court of Appeals for the First Circuit suggesting otherwise. Since Ford, however, First Circuit district courts have continued to cite older cases, sometimes for propositions that now appear tenuous. The First Circuit, moreover, has yet to clarify what Ford means for its earlier cases. Until it does, defense counsel should tread carefully when citing pre-Ford cases in personal jurisdiction motion practice.

Personal Jurisdiction Before Ford

The constitutional analysis for specific personal jurisdiction has three well-established prongs: relatedness; purposeful availment; and reasonableness.¹ The relatedness prong focuses on the nexus between the defendant’s activities in the forum and the plaintiff’s cause of action. As courts often put it, claims must “arise out of or relate to” the defendant’s conduct in the forum.  See, e.g.,Sawtelle v. Farrell, 70 F.3d 1381, 1388-89 (1st Cir. 1995).

For many years, First Circuit precedent suggested that, in personal injury cases, causation was a per se element of relatedness.² In a seminal case, Nowak v. Tak How Investments Ltd., the court explained that relatedness “ensures that the element of causation remains in the forefront of the due process investigation.” 94 F.3d 708, 714 (1st Cir. 1996) (citation omitted). This emphasis on causation, the court observed, was widely shared among federal courts. But courts differed on “the proper causative threshold, gravitating, in most cases, towards one of two causation tests: ‘but for’ or proximate cause.” Id. The court ultimately decided that “the proximate cause standard better comports with the relatedness inquiry because it so easily correlates to foreseeability.” Id. at 715. The court in Nowak recognized a “narrow exception to the proximate cause test” when a foreign corporation targets residents of a given forum to further a business relationship there, and those “efforts lead to a tortious result.” Id. at 716. The court described this exception as “a small overlay of ‘but for’ on ‘proximate cause.’” Id. Later cases reaffirmed that “due process demands something like a ‘proximate cause’ nexus.” Harlow v. Children’s Hosp., 432 F.3d 50, 61 (1st Cir. 2005) (quoting Cambridge Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H & Co. Kg., 295 F.3d 59, 63 (1st Cir. 2002)). These cases left little room for doubt that some causation was required, even if the standard was flexible in some circumstances.

This flexibility left ample room for advocacy. For example, imagine you represent a global automobile manufacturer in a pre-Ford products liability case. The plaintiff sued in the federal district where she lives and was injured by the vehicle your client designed, manufactured, and sold. Your client advertises and sells many vehicles—including the allegedly defective model involved in the accident—in that same district. But your client is neither incorporated nor headquartered there, and the vehicle that injured the plaintiff was designed, manufactured, and purchased in a different district. On these facts, you might have a specific personal jurisdiction defense: the complaint does not draw a sufficient causal link between your client’s general business activities in the forum and the plaintiff’s injury. Plaintiff’s counsel might counter that “but for” your client’s presence in the forum, and the assumed brand awareness arising from that presence, the subject vehicle likely would not have ended up there. No matter. You have at your disposal First Circuit cases suggesting that due process demands a much stronger causal link—something approaching proximate cause—between your client’s forum activities and the alleged injuries. See, e.g.,Harlow, 432 F.3d at 61 (“A broad ‘but-for’ argument is generally insufficient. . . . [D]ue process demands something like a ‘proximate cause’ nexus.”); United Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992) (“We have likewise suggested an analogy between the relatedness requirement and the binary concept of causation in tort law under which both elements—cause in fact . . . and legal cause—must be satisfied to find causation sufficient to support specific jurisdiction.”); see also Cambridge Literary Props., Ltd., 295 F.3d at 65 (noting that “but for” events can be “very remote,” and assuming that due process requires “something like” proximate case); Massachusetts Sch. of Law v. American Bar Ass’n, 142 F.3d 26, 35 (1st Cir. 1998) (“[O]ur relatedness analysis thus focuses on causation.”). With these cases, you might have had a shot at dismissal on personal jurisdiction grounds. But probably not after Ford.

The Supreme Court’s Decision in Ford

Ford involved the same basic scenario presented above: a global automotive company sought dismissal, on personal jurisdiction grounds, of products liability claims involving vehicles purchased outside the forums where the plaintiffs lived and were injured. The defendant conceded purposeful availment, but maintained that, because the vehicles were designed, manufactured, and purchased outside the forums, the plaintiffs could not satisfy the relatedness prong. Ford Motor Co., 141 S. Ct. at 1026. Parsing the oft-repeated formulation of that inquiry—that the injuries must “arise out of or relate to” the forum conduct—the Court observed that, while the first half of the phrase required causation, the latter half “contemplates that some relationships will support jurisdiction without a causal showing.” Id. Accordingly, the Court rejected the defendant’s argument for an “exclusively causal test of connection.” Id. at 1026, 1029. The Court cautioned, “the phrase ‘relate to’ incorporates real limits.” Id. at 1026. But as a concurring opinion pointed out, see id.at 1033-34 (Alito, J., concurring), the Court declined to articulate those limits, suggesting only that a “strong relationship among the defendant, the forum, and the litigation” would suffice. Id. at 1026 (quotations omitted).

Compare Ford with First Circuit precedent. Nowak recognized a “narrow exception to the proximate cause test,” but one that still required a causal showing, i.e., “a small overlay of ‘but for’ on ‘proximate cause.’” Nowak, 94 F.3d at 716. And Harlow reaffirmed that “due process demands something like a ‘proximate cause’ nexus.” See Harlow, 432 F.3d at 61. But Ford held that “some relationships will support jurisdiction without a causal showing.” Ford Motor Co., 141 S. Ct. at 1026. It is hard to see how Nowak or Harlow would support jurisdiction in that circumstance.

First Circuit Personal Jurisdiction Decisions After Ford

Since Ford, First Circuit courts have dismissed claims on grounds that resemble the sort of “exclusively causal test of connection” that Ford rejected. In Ching-Yi Lin v. TipRanks, Ltd., 19 F.4th 28 (1st Cir. 2021), the First Circuit affirmed the dismissal of a defamation claim because the plaintiff failed to allege that the defendant’s in-state conduct was the “cause in fact” and “legal cause” of her injuries. Id.at 35-36, 41. Likewise, in Vargas-Santos v. Sam’s West, Inc., No. 20-1641 (GAG), 2021 U.S. Dist. LEXIS 196736 (D.P.R. Oct. 12, 2021), the U.S. District Court for the District of Puerto Rico dismissed employment claims because, while the alleged facts satisfied a “but for” standard of relatedness, they fell short of “something more akin to proximate cause,” which the court said was “required” in the First Circuit. Id. at *10. Both cases relied on pre-Ford cases without citing Ford, much less discussing it.³

Two district courts have commented, in passing, that Ford aligns with First Circuit precedent. In one case, the U.S. District Court for the District of Massachusetts cited Nowak and Harlow to suggest that “Ford Motor Co. is consistent with First Circuit precedent, which recognizes that while its presence or absence is important, causation is not a per se requirement of specific jurisdiction.” See Adams v. Gissell, No. 20-11366-PBS, 2021 U.S. Dist. LEXIS 126712, at *21 n.13 (D. Mass. May 24, 2021). But neither Nowak nor Harlow said exactly that. Nowak allowed a “slight loosening” of the proximate cause standard in a specific factual circumstance, but the relationship found in that case to satisfy relatedness was still causal in nature—i.e., a “small overlay of ‘but for’ on ‘proximate cause.’” Nowak, 94 F.3d at 715-17. Along similar lines, Harlow reaffirmed that “causation is central to the relatedness inquiry” and nowhere suggested that a non-causal relationship would satisfy First Circuit precedent. Harlow, 432 F.3d at 61. The same is true of Nandjou v. Marriott International, Inc., 985 F.3d 135 (1st. Cir. 2021), a decision that preceded Ford by two months, and which the U.S. District Court for the District of New Hampshire cited to support its observation that First Circuit “precedent is consistent with [Ford].” SeeO’Neil v. Somatics, LLC, No. 20-CV-175-PB, 2021 U.S. Dist. LEXIS 183730, at *10 (D.N.H. Sept. 24, 2021). Nandjou went no further than Nowak, recognizing only that, in some circumstances, strict adherence to proximate cause is inappropriate. Nandjou, 985 F.3d at 149-50.⁴

Nowak and its progeny are best understood not as rejecting “causation-only,” as Ford did, but as recognizing that sometimes the proper causative threshold lies closer to “but for” than proximate cause. See Anderson v. Century Prods. Co., 943 F. Supp. 137, 142 (D.N.H. 1996). The same cannot be said of Ford, which made clear that relatedness can mean a causal relation, but it can also mean an “affiliation,” “relationship,” or “connection.” Ford Motor Co., 141 S. Ct. at 1035 (Alito J., concurring).

The First Circuit recently acknowledged as much, but still did not reconcile Ford with circuit precedent. In Cappello v. Rest. Depot, LLC, 89 F.4th 238 (1st Cir. 2023), a New Hampshire resident ate a contaminated salad in New Jersey and then sued, in his home state, companies involved in the distribution and sale of the salad. Id.at 241. In some respects, the facts in Cappello paralleled Ford: both companies did business in the forum, but the particular instrumentality of harm was sold elsewhere. Seizing on Ford, the plaintiff argued that his claims were related to the defendants’ business contacts in New Hampshire because the product that allegedly caused him harm was of the type that the defendant sold in the forum state. Id. at 245. The First Circuit disagreed. Acknowledging Ford’s rejection of “causation only,” the court nonetheless found that the business contacts at issue concerning produce were inherently different in nature and scale than those at issue in Ford, which involved the nationwide manufacture and retail sale of automobiles. Id.at 245-47. The plaintiff thus did not satisfy Ford’s broader relatedness standard. In so ruling, the Cappello court did not discuss whether or how its earlier precedent aligns with the new, broader standard established by Ford.

Accordingly, even after Cappello it remains true that “the First Circuit has yet to address what Ford Motor Co. means for the test articulated in Harlow.” Levesque v. Iberdrola, S.A., No. 2:19-cv-00389-JDL, 2021 U.S. Dist. LEXIS 147847, at *22 n.5 (D. Me. Aug. 6, 2021). For now, it is safe to assume that Ford means something for the tests articulated in First Circuit precedent.

Practical Impact for First Circuit Practitioners

Until the First Circuit provides further guidance, counsel should be wary of relying on cases like Nowak and Harlow. Those cases could easily be used to craft a “causation-only” argument that Ford expressly rejected. Indeed, the Court in Ford observed that “[n]one of our precedents has suggested that only a strict causal relationship between the defendant’s in-state activity and the litigation will do.” 141 S. Ct. at 1026. Accordingly, when challenging personal jurisdiction, defense counsel should avoid forming arguments that suggest causation is necessarily required to establish relatedness. That is no longer the law of the land, even if no First Circuit case has said as much.

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1. SeePhillips v. Prairie Eye Ctr., 530 F.3d 22, 27 (1st Cir. 2008); see alsoU.S. Const. amend. XIV (due process).

2. See Massachusetts Sch. of Law v. American Bar Ass’n, 142 F.3d 26, 35 (1st Cir. 1998) (“[In] a tort claim, we customarily look to whether the plaintiff has established cause in fact (i.e., the injury would not have occurred ‘but for’ the defendant’s forum-state activity) and legal cause (i.e., the defendant’s in-state conduct gave birth to the cause of action).” (cleaned up)); Old United Cas. Co. v. Flowers Boatworks, No. 2:15-CV-43-DBH, 2016 U.S. Dist. LEXIS 58430, at *9-10 (D. Me. May 3, 2016) (“The claims . . . constitute a conventional products liability case, and I treat the claims as tort claims. . . . For tort claims, I must probe the causal nexus between the defendant’s contacts and the plaintiff’s cause of action.” (cleaned up)).

3. Two other recent decisions from the U.S. District Court for the District of Massachusetts cited pre-Fordcases to suggest that causation is central to relatedness, but neither case turned on the relatedness element. See Sheldon v. DT Swiss AG, No. 1:22-cv-11198-IT, 2023 U.S. Dist. LEXIS 169108, at *32 (D. Mass. Sept. 22, 2023); SV Athena, LLC v. B&G Mgmt. Servs., 671 F. Supp. 3d 77, 83 (D. Mass. 2023).
4. In another case, the U.S. District Court for the District of Massachusetts recognized that “[i]n Ford, the Supreme Court held that a causal showing is not necessary” for relatedness. See Alves v. Goodyear Tire & Rubber Co., No. 22-11820-WGY, 2023 U.S. Dist. LEXIS 127323, at *16 n.2 (D. Mass. July 24, 2023). But the Court found no occasion to comment further on the effect of Fordon earlier circuit precedent, reasoning that Ford was inapplicable to the internet-based contract and economic injuries at issue.  Id.