New Limits on General Personal Jurisdiction: Examining the Retroactive Application of Daimler in Long-Pending Cases

Table of ContentsI. Introduction 1550II. Development of Personal Jurisdiction Law: Goodyear to Daimler 1554A. Pre-Goodyear Personal Jurisdiction 1554B. General Personal Jurisdiction After Goodyear.......1558C. General Personal Jurisdiction After Daimler.........1560III. Retroactivity and Exceptions to Retroactivity 1564A. Adjudicative Retroactivity Versus Legislative Retroactivity 1564B. General Rule for Adjudicative Retroactivity 1567C. Retroactivity in the Personal Jurisdiction Context 1574IV. Permitting Defendants to Raise the Daimler Test in Long-Pending Cases 1577A. Two Categories of Cases Affected by the Daimler Decision 15771. First Category: When the Defendant Raised a Rule 12(b)(2) Defense Before Daimler 15772. Second Category: When the Defendant Did Not Raise a Rule 12(b)(2) Defense Before Daimler 1578B. Consequences of Applying the Daimler Decision in Long-Pending Cases 1586V. Conclusion 1591I. Introduction"If it's a new test, why can't they use it?"1This comment by Judge George B. Daniels of the U.S. District Court for the Southern District of New York fits a wealth of controversy into just a few words.2 3 With the Supreme Court's apparent limiting of general personal jurisdiction in Daimler AG v. Bauman3 in January of 2014, defendants across the country began attempts to have the cases against them dismissed on the grounds that the particular courts could no longer exercise general personal jurisdiction over them.4 5 These defendants believe that the Daimler interpretation of general personal jurisdiction fundamentally changed the previously controlling Goodyear Dunlop Tires Operations, S.A. v. Brown5 test, and several judges in federal district courts agree.6 Spurring the controversy, however, are judges operating under the assumption that Daimler did not change the already existing Goodyear test and thus, denying dismissals to other defendants in the same situation.7 Judge Daniels's position depends on the assumption-one that he thinks is obvious-that Daimler did create a new test.8 The problem, however, is that others persuasively argue that the Daimler and Goodyear tests are the same.9 Apart from the issue of whether Daimler created a new test, Judge Daniels's comment also encapsulates the separate issue of whether-even if Daimler created a new test-defendants are entitled to relief under the new case, especially if they have already waived the personal jurisdiction defense of Rule 12(b)(2).10 This Note proceeds by reconciling these two issues in an attempt to propose the correct outcome for litigants regarding the treatment of Daimler in longpending cases.* 11The Supreme Court's ruling in Daimler was a further development of Goodyear and personal jurisdiction law.12 In delivering the Court's ruling, Justice Ginsburg declared, "[T]he inquiry under Goodyear is not whether a foreign corporation's inforum contacts can be said to be in some sense ?continuous and systematic,' it is whether that corporation's ?affiliations with the State are so continuous and systematic as to render [it] essentially at home in the forum State.'"13 Despite the apparent intention to clarify the existing law on general jurisdiction, the Daimler ruling incited disagreement as to the extent the Goodyear rule changed as a result of Daimler and even as to whether Daimler changed the Goodyear rule at all. …