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80 Geo. Wash. L. Rev. Arguendo 1 (2011)

handle is hein.journals/gwargu80 and id is 1 raw text is: The Impacts of Mcntyre on
Minimum Contacts
Alan B. Morrison*
ABSTRACT
The Supreme Court's June 2011 decision in J. McIntyre Machinery, Ltd. v.
Nicastro seriously unsettles the law of personal jurisdiction in suits against
manufacturers of dangerous products that are delivered, through a distributor, to
the jurisdiction where the product harmed a person using it. The plurality opinion
not only failed to satisfy its stated goal of clarifying the law twenty years after
Asahi Metal Industry Co. v. Superior Court, but has set the stage for a significant
increase in litigation at the preliminary stage when personal jurisdiction defenses
are supposed to be resolved. Both the plurality and the concurrence placed great
emphasis on the lack of a factual showing of the defendant's minimum contacts
with the forum state, which will almost certainly lead plaintiffs to undertake
substantial nonmerits discovery of the defendant and, in cases like this, the
distributor and the employer of the injured plaintiff Although McIntyre involved
a non-U.S. defendant, its rationale also applies when the product maker is from
another state, thereby substantially increasing the ability of U.S. companies to
avoid suits in jurisdictions where the injured plaintiff resides. The focus on
physical contacts with the forum state also suggests that obtaining personal
jurisdiction over those whose contacts with the forum state exist only via the
Internet will be even less likely than under the current state of the law. And the
plurality's suggestion that the solution may lie in Congress conferring broad
territorial jurisdiction upon the federal courts where there is diversity of
citizenship raises the possibility of a significant increase in personal injury suits
in federal district court to avoid personal jurisdiction issues, even where the state
court is literally across the street and all the issues involve state law.
INTRODUCTION
Professor Todd Peterson is surely right in The Timing of Minimum
Contacts After Goodyear and McIntyre1 that the Supreme Court's 2010
Term confused, more than clarified, the law of personal jurisdiction. I
agree that Goodyear Dunlop Tires Operations, S.A. v. Brown,2 was an easy
case in which to find general jurisdiction missing, and that Justice
Ginsburg's dictum analogizing general jurisdiction to home was surely
* Lerner Family Associate Dean for Public Interest & Public Service, The George
Washington University Law School. The author assisted counsel for the plaintiff in J.
McIntyre Machinery, Ltd. v. Nicastro in the preparation of the brief and the oral argument in
the Supreme Court.
I Todd David Peterson, The Timing of Minimum Contacts After Goodyear and
McIntyre,    80    GEO.     WASH.     L.    REV.    ARGUENDO      1    (2011),
http://groups.law.gwu.edu/LR/ArticlePDF/Peterson-Arguendo.pdf.
2 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011).
October 2011 Vol. 80 No. Arguendo

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