Daimler AG v. Bauman,
Annotate this Case
571 U.S. ___ (2014)
SUPREME COURT OF THE UNITED STATES
DAIMLER AG, PETITIONER v. BARBARABAUMAN et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[January 14, 2014]
Justice Sotomayor, concurring in the judgment.
I agree with the Court’s conclusion that the Due Process Clause prohibits the exercise of personal jurisdiction over Daimler in light of the unique circumstances of this case. I concur only in the judgment, however, because I cannot agree with the path the Court takes to arrive at that result.
The Court acknowledges that Mercedes-Benz USA, LLC (MBUSA), Daimler’s wholly owned subsidiary, has considerable contacts with California. It has multiple facilities in the State, including a regional headquarters. Each year, it distributes in California tens of thousands of cars, the sale of which generated billions of dollars in the year this suit was brought. And it provides service and sales support to customers throughout the State. Daimler has conceded that California courts may exercise general jurisdiction over MBUSA on the basis of these contacts, and the Court assumes that MBUSA’s contacts may be attributed to Daimler for the purpose of deciding whether Daimler is also subject to general jurisdiction.
Are these contacts sufficient to permit the exercise of general jurisdiction over Daimler? The Court holds that they are not, for a reason wholly foreign to our due process jurisprudence. The problem, the Court says, is not that Daimler’s contacts with California are too few, but that its contacts with other forums are too many. In other words, the Court does not dispute that the presence of multiple offices, the direct distribution of thousands of products accounting for billions of dollars in sales, and continuous interaction with customers throughout a State would be enough to support the exercise of general jurisdiction over some businesses. Daimler is just not one of those businesses, the Court concludes, because its California contacts must be viewed in the context of its extensive “nationwide and worldwide” operations. Ante, at 21, n. 20. In recent years, Americans have grown accustomed to the concept of multinational corporations that are supposedly “too big to fail”; today the Court deems Daimler “too big for general jurisdiction.”
The Court’s conclusion is wrong as a matter of both process and substance. As to process, the Court decides this case on a ground that was neither argued nor passed on below, and that Daimler raised for the first time in a footnote to its brief. Brief for Petitioner 31–32, n. 5. Asto substance, the Court’s focus on Daimler’s operations out-side of California ignores the lodestar of our personal jurisdiction jurisprudence: A State may subject a defendant to the burden of suit if the defendant has sufficiently taken advantage of the State’s laws and protections through its contacts in the State; whether the defendant has contacts elsewhere is immaterial.
Regrettably, these errors are unforced. The Court can and should decide this case on the far simpler ground that, no matter how extensive Daimler’s contacts with California, that State’s exercise of jurisdiction would be unreasonable given that the case involves foreign plaintiffs suing a foreign defendant based on foreign conduct, and given that a more appropriate forum is available. Because I would reverse the judgment below on this ground, I concur in the judgment only.
I begin with the point on which the majority and I agree: The Ninth Circuit’s decision should be reversed.
Our personal jurisdiction precedents call for a two-part analysis. The contacts prong asks whether the defendant has sufficient contacts with the forum State to support personal jurisdiction; the reasonableness prong asks whether the exercise of jurisdiction would be unreasonable under the circumstances. Burger King Corp. v. Rudzewicz, 471 U. S. 462 –478 (1985). As the majority points out, all of the cases in which we have applied the reasonableness prong have involved specific as opposed to general jurisdiction. Ante, at 21, n. 20. Whether the reasonableness prong should apply in the general jurisdiction context is therefore a question we have never decided, and it is one on which I can appreciate the arguments on both sides. But it would be imprudent to decide that question in this case given that respondents have failed to argue against the application of the reasonableness prong during the entire 8-year history of this litigation. See Brief for Respondents 11, 12, 13, 16 (conceding application of the reasonableness inquiry); Plaintiffs’ Opposition to Defendant’s Motion to Quash Service of Process and to Dismiss for Lack of Personal Jurisdiction in No. 04–00194–RMW (ND Cal., May 16, 2005), pp. 14–23 (same). As a result, I would decide this case under the reasonableness prong without foreclosing future consideration of whether that prong should be limited to the specific jurisdiction context.
We identified the factors that bear on reasonableness in Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102 (1987) : “the burden on the defendant, the interests of the forum State,” “the plaintiff’s interest in obtaining relief” in the forum State, and the interests of other sovereigns in resolving the dispute. Id., at 113–114. We held in Asahi that it would be “unreasonable and unfair” for a California court to exercise jurisdiction over a claim between a Taiwanese plaintiff and a Japanese defendant that arose out of a transaction in Taiwan, particularly where the Taiwanese plaintiff had not shown that it would be more convenient to litigate in California than in Taiwan or Japan. Id., at 114.
The same considerations resolve this case. It involves Argentine plaintiffs suing a German defendant for conduct that took place in Argentina. Like the plaintiffs in Asahi, respondents have failed to show that it would be more convenient to litigate in California than in Germany, a sovereign with a far greater interest in resolving the dispute. Asahi thus makes clear that it would be unreasonable for a court in California to subject Daimler to its jurisdiction.
The majority evidently agrees that, if the reasonableness prong were to apply, it would be unreasonable for California courts to exercise jurisdiction over Daimler in this case. See ante, at 20–21 (noting that it would be “exor-bitant” for California courts to exercise general jurisdiction over Daimler, a German defendant, in this “Argentina-rooted case” brought by “foreign plaintiffs”). But instead of resolving the case on this uncontroversial basis, the majority reaches out to decide it on a ground neither argued nor decided below.
We generally do not pass on arguments that lower courts have not addressed. See, e.g., Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) . After all, “we are a court of review, not of first view.” Ibid. This principle carries even greater force where the argument at issue was never pressed below. See Glover v. United States, 531 U. S. 198, 205 (2001) . Yet the majority disregards this principle, basing its decision on an argument raised for the first time in a footnote of Daimler’s merits brief before this Court. Brief for Petitioner 32, n. 5 (“Even if MBUSA were a division of Daimler AG rather than a separate corporation, Daimler AG would still . . . not be ‘at home’ in California”).
The majority’s decision is troubling all the more because the parties were not asked to brief this issue. We granted certiorari on the question “whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.” Pet. for Cert. i. At no point in Daimler’s petition for certiorari did the company contend that, even if this attribution question were de-cided against it, its contacts in California would still be in-sufficient to support general jurisdiction. The parties’ merits briefs accordingly focused on the attribution-of-contacts question, addressing the reasonableness inquiry (which had been litigated and decided below) in most of the space that remained. See Brief for Petitioner 17–37, 37–43; Brief for Respondents 18–47, 47–59.
In bypassing the question on which we granted certio-rari to decide an issue not litigated below, the Court leaves respondents “without an unclouded opportunity to airthe issue the Court today decides against them,” Comcast Corp. v. Behrend, 569 U. S. ___, ___ (2013) (Ginsburg and Breyer, JJ., dissenting) (slip op., at 3). Doing so “does ‘not reflect well on the processes of the Court.’ ” Ibid. (quoting Redrup v. New York, 386 U. S. 767, 772 (1967) (Harlan, J., dissenting)). “And by resolving a complex and fact-intensive question without the benefit of full briefing, the Court invites the error into which it has fallen.” 569 U. S., at ___ (slip op., at 3).
The relevant facts are undeveloped because Daimler conceded at the start of this litigation that MBUSA is subject to general jurisdiction based on its California contacts. We therefore do not know the full extent of those contacts, though what little we do know suggests that Daimler was wise to concede what it did. MBUSA imports more than 200,000 vehicles into the United States and distributes many of them to independent dealerships in California, where they are sold. Declaration of Dr. Peter Waskönig in Bauman v. DaimlerChrysler Corp., No. 04–00194–RMW (ND Cal.), ¶ 10, p. 2. MBUSA’s California sales account for 2.4% of Daimler’s worldwide sales, which were $192 billion in 2004. And 2.4% of $192 billion is $4.6 billion, a considerable sum by any measure. MBUSA also has multiple offices and facilities in California, including a regional headquarters.
But the record does not answer a number of otherimportant questions. Are any of Daimler’s key files maintained in MBUSA’s California offices? How many employees work in those offices? Do those employees makeimportant strategic decisions or oversee in any manner Daimler’s activities? These questions could well affect whether Daimler is subject to general jurisdiction. After all, this Court upheld the exercise of general jurisdiction in Perkins v. Benguet Consol. Mining Co., 342 U. S. 437 –448 (1952)—which the majority refers to as a “textbook case” of general jurisdiction, ante, at 10—on the basis that the foreign defendant maintained an office in Ohio, kept corporate files there, and oversaw the company’s activities from the State. California-based MBUSA employees may well have done similar things on Daimler’s behalf. But because the Court decides the issue without a developed record, we will never know.
While the majority’s decisional process is problematic enough, I fear that process leads it to an even more troubling result.
Until today, our precedents had established a straightforward test for general jurisdiction: Does the defendant have “continuous corporate operations within a state” that are “so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities”? International Shoe Co. v. Washington, 326 U. S. 310, 318 (1945) ; see also Helicop-teros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 416 (1984) (asking whether defendant had “continuous and systematic general business contacts”). In every case where we have applied this test, we have focused solely on the magnitude of the defendant’s in-state contacts, not the relative magnitude of those contacts in comparison to the defendant’s contacts with other States.
In Perkins, for example, we found an Ohio court’s exercise of general jurisdiction permissible where the president of the foreign defendant “maintained an office,” “drew and distributed . . . salary checks,” used “two active bank accounts,” “supervised . . . the rehabilitation of the corporation’s properties in the Philippines,” and held “directors’ meetings,” in Ohio. 342 U. S., at 447–448. At no point did we attempt to catalog the company’s contacts in forums other than Ohio or to compare them with its Ohio contacts. If anything, we intimated that the defendant’s Ohio contacts were not substantial in comparison to its contacts elsewhere. See id., at 438 (noting that the defendant’s Ohio contacts, while “continuous and systematic,” were but a “limited . . . part of its general business”).
We engaged in the same inquiry in Helicopteros. There, we held that a Colombian corporation was not subject to general jurisdiction in Texas simply because it occasion-ally sent its employees into the State, accepted checks drawn on a Texas bank, and purchased equipment and services from a Texas company. In no sense did our analysis turn on the extent of the company’s operations beyond Texas.
Most recently, in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___ (2011), our analysis again focused on the defendant’s in-state contacts. Goodyear involved a suit against foreign tire manufacturers by North Carolina residents whose children had died in a bus accident in France. We held that North Carolina courts could not exercise general jurisdiction over the foreign defendants. Just as in Perkins and Helicopteros, our opinion in Goodyear did not identify the defendants’ contacts outside of the forum State, but focused instead on the defendants’ lack of offices, employees, direct sales, and business operations within the State.
This approach follows from the touchstone principle of due process in this field, the concept of reciprocal fairness. When a corporation chooses to invoke the benefits and protections of a State in which it operates, the State acquires the authority to subject the company to suit in its courts. See International Shoe, 326 U. S., at 319 (“[T]o the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state” such that an “obligatio[n] arise[s]” to respond there to suit); J. McIntyre Machinery, Ltd. v. Nicastro, 564 U. S. ___, ___ (2011) (plurality opinion) (slip op., at 5) (same principle for generaljurisdiction). The majority’s focus on the extent of a corporate defendant’s out-of-forum contacts is untethered from this rationale. After all, the degree to which a company intentionally benefits from a forum State depends on its interactions with that State, not its interactions elsewhere. An article on which the majority relies (and on which Goodyear relied as well, 564 U. S., at ___ (slip op., at 7)) expresses the point well: “We should not treat defendants as less amenable to suit merely because they carry on more substantial business in other states . . . . [T]he amount of activity elsewhere seems virtually irrelevant to . . . the imposition of general jurisdiction over a defendant.” Brilmayer et al., A General Look at General Jurisdiction, 66 Texas L. Rev. 721, 742 (1988).
Had the majority applied our settled approach, it would have had little trouble concluding that Daimler’s California contacts rise to the requisite level, given the majority’s assumption that MBUSA’s contacts may be attributed to Daimler and given Daimler’s concession that those contacts render MBUSA “at home” in California. Our cases have long stated the rule that a defendant’s contacts with a forum State must be continuous, substantial, and systematic in order for the defendant to be subject to that State’s general jurisdiction. See Perkins, 342 U. S., at 446. We offered additional guidance in Goodyear, adding the phrase “essentially at home” to our prior formulation of the rule. 564 U. S., at ___ (slip op., at 2) (a State may exercise general jurisdiction where a defendant’s “affiliations with the State are so ‘continuous and systematic’ as to render [the defendant] essentially at home in the forum State”). We used the phrase “at home” to signify that in order for an out-of-state defendant to be subject to general jurisdiction, its continuous and substantial contacts with a forum State must be akin to those of a local enterprise that actually is “at home” in the State. See Brilmayer, supra, at 742.
Under this standard, Daimler’s concession that MBUSA is subject to general jurisdiction in California (a concession the Court accepts, ante, at 15, 17) should be dispositive. For if MBUSA’s California contacts are so substantial and the resulting benefits to MBUSA so significant as to make MBUSA “at home” in California, the same must be true of Daimler when MBUSA’s contacts and benefits are viewed as its own. Indeed, until a footnote in its brief before this Court, even Daimler did not dispute this conclusion for eight years of the litigation.
The majority today concludes otherwise. Referring to the “continuous and systematic” contacts inquiry that has been taught to generations of first-year law students as “unacceptably grasping,” ante, at 19, the majority announces the new rule that in order for a foreign defendant to be subject to general jurisdiction, it must not only possess continuous and systematic contacts with a forum State, but those contacts must also surpass some unspecified level when viewed in comparison to the company’s “nationwide and worldwide” activities. Ante, at 21, n. 20.
Neither of the majority’s two rationales for this proportionality requirement is persuasive. First, the majority suggests that its approach is necessary for the sake of predictability. Permitting general jurisdiction in every State where a corporation has continuous and substantial contacts, the majority asserts, would “scarcely permit out-of-state defendants ‘to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.’ ” Ante, at 21 (quoting Burger King Corp., 471 U. S., at 472). But there is nothing unpredictable about a rule that instructs multinational corporations that if they engage in continuous and substantial contacts with more than one State, they will be subject to general jurisdiction in each one. The majority may not favor that rule as a matter of policy, but such disagreement does not render an otherwise routine test unpredictable.
Nor is the majority’s proportionality inquiry any more predictable than the approach it rejects. If anything, the majority’s approach injects an additional layer of uncertainty because a corporate defendant must now try to foretell a court’s analysis as to both the sufficiency of its contacts with the forum State itself, as well as the relative sufficiency of those contacts in light of the company’s operations elsewhere. Moreover, the majority does not even try to explain just how extensive the company’sin-state contacts must be in the context of its global oper-ations in order for general jurisdiction to be proper.
The majority’s approach will also lead to greater unpredictability by radically expanding the scope of jurisdictional discovery. Rather than ascertaining the extent of a corporate defendant’s forum-state contacts alone, courts will now have to identify the extent of a company’s contacts in every other forum where it does business in order to compare them against the company’s in-state contacts. That considerable burden runs headlong into the major-ity’s recitation of the familiar principle that “ ‘[s]imple jurisdictional rules . . . promote greater predictability.’ ” Ante, at 18–19 (quoting Hertz Corp. v. Friend, 559 U. S. 77, 94 (2010) ).
Absent the predictability rationale, the majority’s sole remaining justification for its proportionality approach is its unadorned concern for the consequences. “If Daimler’s California activities sufficed to allow adjudication of this Argentina-rooted case in California,” the majority laments, “the same global reach would presumably be available in every other State in which MBUSA’s sales are sizable.” Ante, at 20.
The majority characterizes this result as “exorbitant,” ibid., but in reality it is an inevitable consequence of the rule of due process we set forth nearly 70 years ago, that there are “instances in which [a company’s] continuous corporate operations within a state” are “so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities,” International Shoe, 326 U. S., at 318. In the era of International Shoe, it was rare for a corporation to have such substantial nationwide contacts that it would be subject to general jurisdiction in a large number of States. Today, that circumstance is less rare. But that is as it should be. What has changed since International Shoe is not the due process principle of fundamental fairness but rather the nature of the global economy. Just as it was fair to say in the 1940’s that an out-of-state company could enjoy the benefits of a forum State enough to make it “essentially at home” in the State, it is fair to say today that a multinational conglomerate can enjoy such extensive benefits in multiple forum States that it is “essentiallyat home” in each one.
In any event, to the extent the majority is concerned with the modern-day consequences of International Shoe’s conception of personal jurisdiction, there remain other judicial doctrines available to mitigate any resulting unfairness to large corporate defendants. Here, for instance, the reasonableness prong may afford petitioner relief. See supra, at 3–4. In other cases, a defendant can assert the doctrine of forum non conveniens if a given State is a highly inconvenient place to litigate a dispute. See Gulf Oil Corp. v. Gilbert, 330 U. S. 501 –509 (1947). In still other cases, the federal change of venue statute can provide protection. See 28 U. S. C. §1404(a) (permitting transfers to other districts “[f]or the convenience of parties and witnesses” and “in the interests of justice”). And to the degree that the majority worries these doctrines are not enough to protect the economic interests of multinational businesses (or that our longstanding approach to general jurisdiction poses “risks to international comity,” ante, at 22), the task of weighing those policy concerns belongs ultimately to legislators, who may amend state and federal long-arm statutes in accordance with the democratic process. Unfortunately, the majority short circuits that process by enshrining today’s narrow rule of general jurisdiction as a matter of constitutional law.
The majority’s concern for the consequences of its decision should have led it the other way, because the rule that it adopts will produce deep injustice in at least four respects.
First, the majority’s approach unduly curtails the States’ sovereign authority to adjudicate disputes against corporate defendants who have engaged in continuous and substantial business operations within their boundaries. The majority does not dispute that a State can exercise general jurisdiction where a corporate defendant has its corporate headquarters, and hence its principal place of business within the State. Cf. Hertz Corp., 559 U. S., at 93. Yet it never explains why the State should lose that power when, as is increasingly common, a corporation “divide[s] [its] command and coordinating functions among officers who work at several different locations.” Id., at 95–96. Suppose a company divides its management functions equally among three offices in different States, with one office nominally deemed the company’s corporate headquarters. If the State where the headquarters is located can exercise general jurisdiction, why should the other two States be constitutionally forbidden to do the same? Indeed, under the majority’s approach, the result would be unchanged even if the company has substantial operations within the latter two States (and even if the company has no sales or other business operations in the first State). Put simply, the majority’s rule defines the Due Process Clause so narrowly and arbitrarily as to contravene the States’ sovereign prerogative to subject to judgment defendants who have manifested an unqualified “intention to benefit from and thus an intention to submit to the[ir] laws,” J. McIntyre, 564 U. S., at ___ (plurality opinion) (slip op., at 5).
Second, the proportionality approach will treat small businesses unfairly in comparison to national and multinational conglomerates. Whereas a larger company will often be immunized from general jurisdiction in a State on account of its extensive contacts outside the forum, a small business will not be. For instance, the majority holds today that Daimler is not subject to general jurisdiction in California despite its multiple offices, continuous operations, and billions of dollars’ worth of sales there. But imagine a small business that manufactures luxury vehicles principally targeting the California market and that has substantially all of its sales and operations in the State—even though those sales and operations may amount to one-thousandth of Daimler’s. Under the majority’s rule, that small business will be subject to suit in California on any cause of action involving any of its activities anywhere in the world, while its far more pervasive competitor, Daimler, will not be. That will be so even if the small business incorporates and sets up its headquarters elsewhere (as Daimler does), since the small business’ California sales and operations would still predominate when “apprais[ed]” in proportion to its minimal “nationwide and worldwide” operations, ante, at 21, n. 20.
Third, the majority’s approach creates the incongruous result that an individual defendant whose only contact with a forum State is a one-time visit will be subject to general jurisdiction if served with process during that visit, Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604 (1990) , but a large corporation that owns property, employs workers, and does billions of dollars’ worth of business in the State will not be, simply because the corporation has similar contacts elsewhere (though the visiting individual surely does as well).
Finally, it should be obvious that the ultimate effect of the majority’s approach will be to shift the risk of loss from multinational corporations to the individuals harmed by their actions. Under the majority’s rule, for example, a parent whose child is maimed due to the negligence of a foreign hotel owned by a multinational conglomerate will be unable to hold the hotel to account in a single U. S. court, even if the hotel company has a massive presence in multiple States. See, e.g., Meier v. Sun Int’l Hotels, Ltd., 288 F. 3d 1264 (CA11 2002). Similarly, a U. S. business that enters into a contract in a foreign country to sell its products to a multinational company there may be unable to seek relief in any U. S. court if the multinational company breaches the contract, even if that company has considerable operations in numerous U. S. forums. See, e.g., Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivianos, 712 F. Supp. 383 (SDNY 1989). Indeed, the majority’s approach would preclude the plaintiffs in these examples from seeking recourse anywhere in the United States even if no other judicial system was available to provide relief. I cannot agree with the major-ity’s conclusion that the Due Process Clause requires these results.
* * *
The Court rules against respondents today on a ground that no court has considered in the history of this case, that this Court did not grant certiorari to decide, and that Daimler raised only in a footnote of its brief. In doing so, the Court adopts a new rule of constitutional law that is unmoored from decades of precedent. Because I would reverse the Ninth Circuit’s decision on the narrower ground that the exercise of jurisdiction over Daimler would be unreasonable in any event, I respectfully concur in the judgment only.